                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0761
                           Filed September 23, 2015


IN THE INTEREST OF P.D. AND K.D.,
Minor Children,

B.D., Mother,
Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Julie A.

Schumacher, District Associate Judge.




       A mother appeals the termination of her parental rights to her children

born in 2010 and 2012. REVERSED AND REMANDED.




       Daniel Vakulskas of Vakulskas Law Firm, Sioux City, for appellant mother.

       Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant

Attorney General, Patrick Jennings, County Attorney, and J. Kirsch, Assistant

County Attorney, for appellee State.

       Kathryn Stevens, Sioux City, attorney and guardian ad litem for minor

children.




       Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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VAITHESWARAN, Presiding Judge.

       A mother appeals the termination of her parental rights to two children,

born in 2010 and 2012. She contends the State failed to prove the grounds for

termination cited by the district court and termination was not in the children’s

best interests.

I.     Background Facts and Proceedings

       The Department of Human Services became involved with the family in

the fall of 2013 after learning that one of the children had “a significant diaper

rash” and “severe head lice.” Additionally, the children’s mother left the children

with their great-grandparents so she could spend time with her husband, who

was serving in the military and was stationed in another State.        She did not

inform the caretakers where she was going. Concerns were expressed about the

mother’s mental health and her ability to parent the children.

       The district court ordered the children removed from the mother’s care.

They were subsequently adjudicated in need of assistance and the district court

required the parents to “participate in couples counseling; participate in parenting

classes; [and] participate in visitations as arranged by the Iowa Department of

Human Services, in consultation with the guardian ad litem.” In addition, the

court ordered the mother to “complete a psychiatric evaluation and follow through

with the recommendations of that evaluation.”

       The mother returned to Iowa and cooperated with services.               She

underwent a psychiatric evaluation, which resulted in current diagnoses of “major

depressive disorder, recurrent moderate” and anxiety disorder (not otherwise
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specified). She began therapy but was unable to continue due to non-payment

of an outstanding bill.

       The mother also participated in visits with her children. Initially, those

visits were supervised and took place twice a week for two hours each time.

Later, they were expanded to two semi-supervised five-hour visits per week, in

her apartment.

       The mother generally maintained the cleanliness of her apartment and

interacted appropriately with the children. The provider’s primary concern related

to the mother’s tendency to fall asleep and her occasional failure to wake up for a

visit. The service provider admonished the mother to stay awake during visits.

       A year after the department became involved, the district court found the

mother “made progress toward reunification.” The court noted “she maintained

employment and an apartment,” used “bus passes for transportation as needed,”

and was “compliant with taking her medication for depression.” The court found

the mother was “able to demonstrate consistency, appropriate discipline, and

routine” and needed “to continue to demonstrate stability with mental health and

management of her home and money.”             The court granted the parents six

additional months to work towards reunification and scheduled a review hearing

in three months.

       The first visit following entry of the extension order was canceled because

the mother overslept. The mother also overslept prior to another visit. Although

she noted a friend was assisting her with finances and her husband was to pay

the outstanding therapy bill, she continued to have financial difficulties.
                                          4


       Based on these setbacks, the department “made the decision to revert

[the mother’s] visits back to fully supervised, twice per week.” The department

opined, “[t]he parents have stopped making progress toward reunification and

appear to be in the same situation they were in at the last hearing.”

       The district court accepted this prognosis at the three-month review

hearing and ordered the State to file a termination petition. Three months later,

the court terminated the parents’ rights to their children pursuant to Iowa Code

sections 232.116(1)(d) (2013) (circumstances that lead to adjudication as a child

in need of assistance continue to exist despite the offer or receipt of services), (f)

(child four or older cannot be returned to parent’s custody), (h) (child three or

younger cannot be returned to parent’s custody), and (i) (requiring proof the child

meets the definition of a child in need of assistance based on a finding of

physical or sexual abuse or neglect, there is clear and convincing evidence that

the abuse or neglect posed a significant risk to the life of the child or constituted

imminent danger to the child, and there is clear and convincing evidence that the

offer or receipt of services would not correct the conditions which led to the

abuse or neglect of the child within a reasonable period of time). Both parents

appealed, but the father’s appeal was dismissed as untimely.

II.    Termination Grounds

       The mother contends the State failed to prove termination was warranted

under sections (d), (f), and (h).    The mother does not challenge the court’s

reliance on section (i). Accordingly, we conclude the State proved termination

was warranted under section (i).       See In re W.R., No. 03-0789. 2003 WL

21362658, at *2 (Iowa Ct. App. June 15, 2003) (affirming termination decision on
                                            5

unchallenged ground); see also In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App.

1999) (we may affirm if we find clear and convincing evidence to support any of

the grounds cited by the juvenile court).

III.   Best Interests

       Termination must be in the children’s best interests.         In re P.L., 778

N.W.2d 33, 37 (Iowa 2010).            As the district court noted, the primary

considerations on the best interest issue are “the child’s safety,” “the best

placement for furthering the long-term nurturing and growth of the child,” and the

“physical, mental, and emotional condition and needs of the child.” Id.

       In granting six additional months to reunify, the district court set forth clear

expectations for the mother.      She was to (1) work with service providers in

keeping “a clean and orderly home,” (2) work with the service provider on

“managing and budgeting her finances,” (3) “address past-due medical bills,” and

(4) attend a co-parenting class with her husband. The mother fulfilled each of

these expectations.

       The cleanliness of the mother’s apartment was of little concern. At worst,

the service provider noted a dog smell which, she stated, could be alleviated by

airing out the apartment. In any event, the father, who was the owner of the dog

planned to move out of the apartment. While the service provider also cited the

mother’s failure to pick up toys following a previous visit, she acknowledged the

apartment was generally clean. There is no question the mother’s housekeeping

skills raised safety concerns in the past. However, the mother addressed the

concerns. There was scant if any evidence that the condition of the apartment

posed a safety risk to the children at the time of the termination hearing.
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       Turning to the parents’ finances, the mother told the service provider she

did not have a great deal of money to work with.            To improve her financial

situation, the mother changed her job to one that afforded her more hours. At the

time of the termination hearing, she was working thirty-three to forty-five hours

per week. She was current on her rent payments and had paid down a utility bill.

While she did not avail herself of the budgeting services offered by the service

provider who supervised visits, she obtained assistance elsewhere and

established she was able to make ends meet. In short, the mother equipped

herself to meet the children’s physical needs and did so without the department’s

assistance.

       The mother also addressed “past-due medical bills” as required by the

court. As of the termination hearing, she had qualified for Medicaid and had

dealt with the outstanding bill for mental health services that impeded her ability

to continue with therapy. The mother testified she had been seeing a therapist

weekly for six to eight weeks prior to the termination hearing. During that period,

she missed only one appointment, which she rescheduled. Her concerted efforts

to continue mental health treatment inured to the benefit of the children.

       The mother registered for two sessions of eight co-parenting classes.

Although she was obtaining a divorce from her husband, she acknowledged the

need to work with him on parenting the children.

       In addition to fulfilling the expectations set forth in the order granting a six-

month extension, the mother regularly participated in visits with the children. The

order extending time was entered on September 16, 2014. The mother engaged

in semi-supervised visits on September 17, 24, 29, October 1, 8, 13, and 15. On
                                             7


October 20, the mother was informed the visits would become supervised and

would be reduced from five hours to two hours.              The mother participated in

supervised visits on October 20, 27, 29, November 3, 5, 12, 14, 17, 24, 26,

December 1, 3, 8, 22, 29, 31, January 5, 14, 16, 21, 23, February 4, 6, 9, 11, 16,

18, 23, March 2, 4, 6, 9, 11, 16, 18, 23, 30, and April 6.1

         The mother rarely missed visits. During the six-month period preceding

the termination order, the mother overslept on September 22, called in sick on

October 6 and October 20, and had a December 12 visit cancelled because she

failed to confirm her availability before the designated call-in time of 8:45. Three

other visits were canceled by the service provider.

         During the visits, the mother provided lunches and snacks, engaged in

craft activities with the children, and interacted appropriately with them. In its

final report, the department noted the mother “does a good job addressing

behaviors the girls have during the visits.”

         We recognize the mother dozed off during portions of certain semi-

supervised visits, primarily while the children were napping or watching a movie

or when her husband was present for the visit. We are not convinced this factor

warranted termination of her parental rights.           The mother was working long

hours, attempting to manage her financial affairs, addressing deep-seated

depression, maintaining her apartment, and dealing with her imminent divorce.

She also had to attend her therapy and other appointments without a car or

license. The fact she fell asleep on occasion was not surprising.



1
    During the last month, the department reduced the visits to one per week.
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        We are more concerned with the older child’s behaviors, including

tantrums. A clinical assessment performed days before the termination hearing

cited the foster parents’ report of “increased anxiety symptoms.” The child also

began calling the mother by name to get a reaction from her and, during one of

the final visits with the mother, turned away when the mother tried to give her

hugs.    The therapist characterized the child’s behaviors as “[i]nappropriate

(Guarded)” and recommended individual therapy for the child “to learn healthy,

rational, appropriate, and effective ways of expressing self and operationalizing

physical and emotional needs and wants.”

        While this assessment gives us pause, the child showed the same

behaviors before the six-month extension. For example, close to one year before

the termination hearing, the service provider reported the child did not want to go

to visits and had regressed in potty training. The Area Education Association

became involved and assisted the child with these behaviors.           The record

suggests this agency’s involvement, together with individual therapy, would be

critical in assisting the child cope with the upheavals in her life, regardless of

where she was placed.

        As for the younger child, the record contains no indication of physical or

emotional harm during the extension period.

        The mother met each of the department’s and court’s expectations well

within the six-month extension period.        The extension would be rendered

meaningless if a parent’s compliance during the last half of the extension period

were discounted based simply on the filing of a termination petition. See In re

A.S., 2014 WL 4938010, at *4 (“We do not believe it was proper to discount [the
                                         9


mother’s] improvement from December 2013 through March 2014 simply

because the CINA case was on a trajectory toward termination.”). Given the

mother’s achievement of the goals prescribed by the district court in granting a

six-month extension, her significant progress during the last three months of the

extension period, and the absence of harm to the children other than the harm

associated with the many upheavals in the children’s lives, we conclude

termination of the mother’s parental rights was not in the children’s best interests.

       We reverse the termination of the mother’s parental rights to these two

children and remand for further proceedings with the permanency goal changed

to reunification.

       REVERSED AND REMANDED.

       Potterfield, J., concurs; McDonald, J., dissents.
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MCDONALD, J. (dissenting)

       I respectfully dissent. While the majority cites the statutory best interest

standard, the majority does not at all discuss why ordering reunification is in the

best interests of these children. Instead, it appears the majority opinion really

discusses whether there was sufficient evidence to establish the statutory ground

authorizing termination. However, Brittany, the mother, does not challenge the

statutory grounds authorizing termination. Given the posture of the case, the

only question presented is whether termination of the Brittany’s parental rights is

in the best interests of these children. In making that determination, we “give

primary consideration to the child[ren]’s safety, to the best placement for

furthering the long-term nurturing and growth of the child[ren], and to the

physical, mental, and emotional condition and needs of the child[ren].” Iowa

Code § 232.116(2). After considering the relevant statutory criteria, I conclude

termination of the mother’s parental rights is in the best interests of the children.

       Brittany’s past conduct demonstrates her mental health conditions render

her unable to provide for the children’s safety and unable to meet their physical,

mental, and emotional needs outside a supervised setting.            See Iowa Code

§ 232.116(2)(a) (providing the court may consider “[w]hether the parent’s ability

to provide the needs of the child is affected by the parent’s mental capacity or

mental condition”); In re K.F., No. 14–0892, 2014 WL 4635463, at *4 (Iowa Ct.

App. Sep. 17, 2014) (“What’s past is prologue.”); see also In re A.B., 815 N.W.2d

764, 778 (Iowa 2012) (noting a parent’s past conduct is instructive in determining

future behavior). The majority notes the family came to the attention of the Iowa

Department of Human Services (“IDHS”) in the fall of 2013. That is true, but it
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does not reveal the entire story.       Brittany has neglected the children and

jeopardized their health and safety for far longer.

       In the spring of 2012, Brittany left P.D. with Brittany’s stepmother,

Jennifer, for one month after K.D.’s birth. During the entire month, Brittany never

called her stepmother to check on P.D. The following year, in May 2013, the

family came to the attention of the Colorado Department of Human Services

following reports of child neglect, including physical and verbal altercations

between the parents and unsafe and unsanitary conditions. It was reported that

the parents were locking K.D. in her room for hours on end despite her crying,

that the children had feces in their beds, that there were feces on the wall in the

children’s room, and that the floors of the house were littered with dirty diapers

and rotten food. The father and his sister largely confirmed the reports during the

course of the investigation. The neighbor also confirmed the reports, explaining

Brittany did not give the children baths and threw diapers on the floor. The

neighbor told the investigator Brittany allowed P.D. to sleep in urine and feces for

so long that P.D. developed a skin condition. By the time the investigation was

completed, Brittany had moved to Sioux City with the children. The Colorado

case was closed as unfounded after the father and his sister spent days cleaning

the house in Brittany’s absence.

       In September 2013, Brittany left the children in Sioux City with relatives

and then left Iowa to return to Colorado without informing any of the people

caring for the children. Right before leaving, Brittany told her stepmother she

had no bond with K.D. but wanted to keep P.D. The relatives took P.D. to seek

medical treatment because she had a severe diaper rash. P.D. was diagnosed
                                        12


with a severe yeast infection. It was also disclosed at that time that the children

had severe head lice and that both children had suffered from untreated diarrhea

for almost two weeks. The family reported Brittany demonstrated severe mood

swings and Brittany told them she was “too stressed to deal with the children.” It

was at this time, the Iowa Department of Human Services intervened and

removed the children from the parents’ care.

       Although IDHS initiated this case in September 2013, Brittany did not

return to Iowa to address any issues with the children until November 29, 2013.

She has not demonstrated any greater urgency since that time. In January 2014,

Brittany was diagnosed with major depressive disorder, anxiety, and ADHD. She

failed to follow through with treatment.       Her failure to follow through with

treatment was evident during visitation with the children. She did not provide for

the children’s needs during visits. She frequently missed visitations because she

slept through them. When she did exercise visitation, Brittany frequently ignored

the children and fell asleep.

       By September 2014, the matter came on for dispositional review hearing.

The juvenile court found Brittany had made some progress toward reunification.

The juvenile court noted she had maintained employment, had been taking her

medication, and had been compliant with her mental health therapy. The court

also noted that concerns persisted regarding Brittany’s struggles with budgeting,

her mental health, and the cleanliness of her home. The juvenile court granted

the parents an additional six months to complete expected behavioral changes.

It was revealed during the subsequent termination hearing, however, that things

were not as they seemed.        By the time of the dispositional review hearing,
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Brittany had actually quit her employment because she was not getting enough

hours.    She failed to have any alternative employment ready, and she was

unemployed from August through December of 2014.

         Despite being given six additional months in September 2014 to make

changes demonstrating the ability to provide for the children, Brittany’s behavior

got worse for an extended period of time.          As noted above, she quit her

employment and failed to address the department’s concerns regarding her

ability to actually meet the most basic needs of the children. The department

decreased Brittany’s visitation with the children because she continued to miss

visitation and sleep through visitation.     She failed to follow through with her

therapy. Following a dispositional review hearing in December 2014, the juvenile

court found, “[l]ittle, if any, progress has been made since [the] permanency

hearing.”    The juvenile court also found that “[c]oncerns have been raised

regarding Brittany sleeping during visits and oversleeping, causing her to miss

several of the scheduled visits. The children presented as overly tired, displaying

behavior issues and night terrors.”

         Immediately prior to the termination hearing, Brittany started to make

some improvements, but there is little evidence she would be able to maintain

them based on her lack of progress since she first abandoned her child in the

spring of 2012, more than three years prior to the termination hearing. Indeed, at

the termination hearing, Brittany testified she missed another mental health

appointment scheduled at 2:00 p.m. the day before the hearing because she

slept through it. When asked why Brittany failed to comply with mental health

recommendations, she testified there was “no good reason.”              We have
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repeatedly held that “last-minute” attempts to address long-standing issues, here

three years, are not enough to preclude termination of parental rights. See In re

C.B., 611 N.W.2d 489, 494 (Iowa 2000) (“The crucial days of childhood cannot

be suspended while parents experiment with ways to face up to their own

problems.”); In re I.V., No. 15-0608, 2015 WL 4486237, at *2 (Iowa Ct. App. July

22, 2015) (affirming termination order and stating “the mother's past conduct

demonstrates that she was unwilling to avail herself of services when offered and

only made a last-minute attempt for litigation purposes”). “A parent cannot wait

until the eve of termination . . . to begin to express an interest in parenting.” C.B.,

611 N.W.2d at 494.

       The majority also fails to discuss the impact of its decision on the children.

The statute directs the court to determine “whether the child[ren] ha[ve] become

integrated into the foster family to the extent that the child[ren]'s familial identity is

with the foster family, and whether the foster family is able and willing to

permanently integrate the child into the foster family.”                    Iowa Code

§ 232.116(2)(b). In this case, the children were removed from the mother in the

fall of 2013, almost two years ago by the time this decision is filed. During that

time, the mother has never progressed beyond supervised visitation.                  The

children refer to their foster parents as mom and dad. They do not call Brittany

mom. The foster family is ready to adopt these children. The evidence showed

the foster parents have provided the children with a loving and structured home

environment in which the children have thrived.             In contrast, the evidence

showed the girls regressed and acted out when forced to have visitation with

their mother. The care coordinator’s report to the court explained there was little
                                        15


bond between K.D. and the mother. The children’s integration into and support

of the foster family and the lack of bond between the mother and children

strongly militate in favor of terminating the mother’s parental rights. See In re

S.M., No. 14-2088, 2015 WL 800086, at *1 (Iowa Ct. App. Feb. 25, 2015)

(affirming termination order where foster family best served the children’s mental,

emotional, and physical needs); In re N.L.-S., No. 14-2045, 2015 WL 576572, at

*5 (Iowa Ct. App. Feb. 11, 2015) (“The mental capacity of a parent and the

existence of a preadoptive foster family in the life of a child are relevant

considerations in the statutory best-interest analysis.”); In re S.B., No. 14-0593,

2014 WL 2600365, at *1 (Iowa Ct. App. June 11, 2014) (“We note the children

began to make progress in their developmental deficits quickly after they were

placed in foster care.”); In re E.C.-N., No. 12-2306, 2013 WL 1225396, at *1

(Iowa Ct. App. Mar. 27, 2013) (“The children are thriving with their foster family

but regress and appear traumatized following visits with their mother.        [The

mother] has been given two years, and a variety of services to learn to parent

these children safely and has not complied. The children must not be made to

await the structure, consistency, and permanency they deserve.”).

       The majority’s decision directs the juvenile court to make efforts to remove

these children from a loving family and reunify them with their mother, who has

demonstrated for a period of three years that she cannot provide for their most

basic needs. “Children simply cannot wait for responsible parenting. Parenting

cannot be turned off and on like a spigot. It must be constant, responsible, and

reliable.”   In re L.L., 459 N.W.2d 489, 495 (Iowa 1990).       For the foregoing

reasons, I respectfully dissent.
