                    IN THE COURT OF APPEALS OF IOWA

                                    No. 20-0310
                                Filed May 13, 2020


IN THE INTEREST OF C.P.,
Minor Child,

K.P., Mother,
       Appellant,

J.R., Father,
       Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Clay County, Andrew Smith, District

Associate Judge.


       Parents separately appeal the termination of their parental rights to their

child. AFFIRMED ON BOTH APPEALS.



       Scott A. Johnson of Hemphill Law Office, PLC, Spencer, for appellant

mother.

       Elizabeth K. Johnson, Spirit Lake, for appellant father.

       Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

       Shannon Sandy of Sandy Law Firm, P.C., Spirit Lake, attorney and

guardian ad litem for minor child.



       Considered by Vaitheswaran, P.J., Greer, J., and Scott, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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SCOTT, Senior Judge.

       A mother and father separately appeal the termination of their parental

rights to their child, born in 2018. The mother challenges the sufficiency of the

evidence supporting the statutory ground for termination cited by the juvenile court,

argues the Iowa Department of Human Services (DHS) failed to make reasonable

efforts at reunification, and requests a six-month extension to work toward

reunification. The father challenges the sufficiency of the evidence supporting

termination, argues termination is contrary to the child’s best interests, questions

the State’s reasonable efforts at reunification, maintains a guardianship should

have been established in a relative in lieu of termination, asks for the application

of statutory exceptions to termination, and requests additional time to work toward

reunification.

I.     Background Facts and Proceedings

       This family came to the attention of DHS in March 2019, when the child

presented to the hospital with a broken femur. The child was removed from the

parents’ care and placed with relatives under DHS supervision by an ex parte

removal order, which was confirmed following a removal hearing. The parties

stipulated to a child-in-need-of-assistance adjudication under Iowa Code section

232.2(6)(c) (2019). DHS initiated a liberal visitation plan; in addition to visits

supervised by service providers, the child’s placement allowed the parents to

essentially visit the child whenever they wanted.        The mother variously and

inconsistently visited the child and would only stay for short periods of time. The

father attended some visits, but he did not exhibit much of an interest in visiting the

child. Service providers advised the mother of the importance of attending visits.
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In early May, as a result of the mother’s inconsistency in attending visitations, her

visitations were reduced and a more structured visitation schedule was

implemented. Around the same time, the father was arrested on multiple criminal

charges. The mother continued to minimally participate in visitation throughout

May. She also failed to meaningfully engage in substance-abuse and mental-

health treatment as directed.1

       At a family team meeting in late May, DHS reported its concerns to the

parents, noting “the case could not have started any more poorly,” and directing

the parents to engage in services and attend visits. At the dispositional hearing

about a week later, the juvenile court noted its concern for the parents’ lack of

participation in services and directed that the parents engage in services or

anticipate a termination petition being filed. The court expressly asked each of the

parents and counsel if they desired any additional services. All responded in the

negative.

       The mother became more consistent in attending visitation in June. She

was also consistent in attending mental-health treatment, although she was

inconsistent in attending substance-abuse treatment. In mid-June, the father was

sentenced to an indeterminate term of imprisonment not to exceed two years.

Toward late July, the mother reverted to inconsistent attendance at visits. Despite

this, the mother filed a motion for additional services, requesting DHS take steps

to establish paternity, semi-supervised visits, and the implementation of a plan to



1 The mother has a history of mental-health issues. She has been diagnosed with
depression, anxiety, borderline personality traits, adjustment disorders, and post-
traumatic stress disorder.
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return the child to her care.      The mother’s inconsistency in attending visits

continued through August and into September. The mother’s lack of attendance

at visitation was largely attributable to her oversleeping, although the bulk of visits

were scheduled to take place in the afternoon and evening hours. Based on the

mother’s inconsistent attendance at visitation, lack of consistent engagement in

mental-health and substance-abuse treatment, and lack of a meaningful bond with

the child, DHS recommended against allowing supervised visitation and instead

recommended initiation of termination proceedings.

       The mother’s motion for additional services was considered at a review

hearing in early September, after which the court concluded allowing semi-

supervised visits would be inappropriate. At the hearing, the court questioned the

mother regarding what services she would need to get her on track.                She

responded she needed a support system and “some sort of program” that “teaches

[her] how to adult.” However, the mother advised she had already taken steps to

enter a residential education and job training program. DHS advised it would assist

in facilitating the mother’s entry into the program. The mother was accepted into

the program shortly after the hearing. Upon her acceptance, the mother filed a

second motion for additional services, requesting she be allowed to enroll in the

solo parent program at her residential facility, which would allow for the child to be

placed with her in the future. The State filed its termination petition in October.

Thereafter, at the hearing on the mother’s motion for additional services, the

mother testified she wished to have the child placed with her at the facility after

she demonstrated one or two months of compliance with and progress in the

program. The court advised the mother she could enter the program and the court
                                         5


would leave visitation and placement within the discretion of DHS based upon the

mother’s progress.

       In early December, the mother filed a “motion for reasonable efforts,”

requesting, among other things, an additional six months to work toward

reunification. Her motion was considered as part of the termination hearing a few

days later. In the few months leading up to the termination hearing, the mother

gradually increased her consistency in attending visitation. However, she had yet

to consistently engage in meaningful mental-health therapy, the main issue

permeating the proceedings. The mother testified she had been on a waiting list

to see a mental-health therapist for a number of months. She agreed in her

testimony that engaging in mental-health therapy is critical for her to maintain the

ability to adequately care for her child. She had also not yet engaged in the

residential education and job training program. The father remained incarcerated

at the time of the termination hearing. He testified his anticipated release date was

April 23, 2020.

       Roughly three weeks after the termination hearing, the State moved to

reopen the record, citing the mother’s regression as to maintaining contact with the

child. The motion was granted. The evidence presented showed that, following

the termination hearing, the mother missed two of the child’s appointments in mid-

December and cancelled a visit around Christmas and declined the opportunity to

make it up. The mother attended a medical appointment for the child in late

December but then cancelled a visit with the child later the same day. The mother

missed another medical appointment for the child on January 10. She cancelled
                                          6


another visit on January 21. The mother offered various excuses for missing these

interactions.

       The court ultimately terminated the mother’s parental rights pursuant to

section 232.116(1)(h) and the father’s rights under section 232.116(1)(e) and (h).

Both parents appeal.

II.    Standard of Review

       Our review is de novo. In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our

primary consideration is the best interests of the child, In re J.E., 723 N.W.2d 793,

798 (Iowa 2006), the defining elements of which are the child’s safety and need

for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).

III.   Analysis

       A.       Sufficiency of the Evidence

       Both parents challenge the sufficiency of the evidence supporting

termination under Iowa Code section 232.116(1). “[W]e may affirm the juvenile

court’s termination order on any ground that we find supported by clear and

convincing evidence.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). As to

termination under section 232.116(1)(h), each parent only challenges the State’s

establishment of the final element of that provision—that the child could not be

returned to their care at the time of the termination hearing. See Iowa Code

§ 232.116(1)(h)(4) (requiring clear and convincing evidence that the child cannot

be returned to the custody of the child’s parents at the present time); D.W., 791

N.W.2d at 707 (Iowa 2010) (interpreting the statutory language “at the present

time” to mean “at the time of the termination hearing”).
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       At the times of the termination and subsequent hearing, the father was

imprisoned.     The evidence was clear and convincing the child could not be

returned to his care. For the mother’s part, she states there were no safety

concerns during visits, points to the lack of concern regarding substance abuse

and criminal and violent tendencies, and highlights the fact that she began to

engage in mental-health services, albeit not until after the initial termination

hearing. Upon our de novo review and given the mother’s history of mental-health

issues and their continuing prevalence despite years of mental-health services, we

conclude the mother’s mental-health issues still served as a barrier to reunification

at the time of the termination hearing and hearing on the motion to reopen the

record. We conclude the State met its burden under section 232.116(1)(h) as to

both parents.

       B.       Best Interests

       The father argues termination of his parental rights is contrary to the child’s

best interests.2 The father does not make any specific argument as to how

consideration of the statutory factors contained in Iowa Code section 232.116(2)

renders termination contrary to the child’s best interests. In determining whether

termination is in the best interests of a child, we “give primary consideration to the

child’s safety, to the best placement for furthering the long-term nurturing and

growth of the child, and to the physical, mental, and emotional condition and needs

of the child.” Iowa Code § 232.116(2).



2 The mother does not raise a best-interests argument. Thus, we need not address
that step in the three-step termination framework as to the mother. See In re P.L.,
778 N.W.2d 33, 40 (Iowa 2010).
                                          8


       The father acknowledged in his testimony that he is a stranger to the child.

The child has been in the same relative placement most of his life, and the relatives

intend to adopt. The child is integrated into this familial setting, which, unlike the

father, has provided and can continue to provide for his physical, mental, and

emotional needs. Continued stability and permanency in this home are in this

child’s best interests. See id. § 232.116(2)(b); cf. In re M.W., 876 N.W.2d 212,

224–25 (2016) (concluding termination was in best interests of children where

children were well-adjusted to placement, the placement parents were “able to

provide for their physical, emotional, and financial needs,” and they were prepared

to adopt the children).

       C.     Statutory Exceptions and Guardianship

       The father passively suggests the juvenile court erred in declining to apply

the statutory exceptions to termination contained in Iowa Code section

232.116(3)(a) and (c) and establish a guardianship in the child’s relative

placement. We consider the father’s request for application of the exception

contained in section 232.116(3)(a), which allows the court to forego termination if

a “relative has legal custody of the child,” in conjunction with his request for the

establishment of a guardianship. The father did not request the establishment of

a guardianship below, and there is no indication in the record that the juvenile court

even considered the possibility of establishing a guardianship. Thus, the issue is

not preserved for appellate review. See Meier v. Senecaut, 641 N.W.2d 532, 537

(Iowa 2002) (noting issues must be raised and decided below before we will

address them on appeal); see also Stammeyer v. Div. of Narcotics Enf’t, 721
                                          9


N.W.2d 541, 548 (Iowa 2006) (finding an argument not preserved for appeal when

there was “nothing indicating the court ruled upon or even considered [it]”).

       Even if the issue had been preserved, we would begin with the principle that

“a guardianship is not a legally preferable alternative to termination.” In re A.S.,

906 N.W.2d 467, 477 (Iowa 2018) (quoting In re B.T., 894 N.W.2d 29, 32 (Iowa Ct.

App. 2017)). Although section 232.104(2)(d) allows for the establishment of a

guardianship as a permanency option, section 232.104(3) requires “a judicial

determination that [such a] planned permanent living arrangement is the best

permanency plan for the child.” See B.T., 894 N.W.2d at 32–33. Determining the

best permanency plan for a child is a best-interests assessment. A guardianship,

rather than termination, would not promote stability or provide permanency to this

young child’s life. See In re R.S.R., No. 10-1858, 2011 WL 441680, at *4 (Iowa

Ct. App. Feb. 9, 2011) (“So long as a parent’s rights remain intact, the parent can

challenge the guardianship and seek return of the child to the parent’s custody.”).

Upon our de novo review, we conclude a guardianship in lieu of termination is not

the best permanency option in this case.

       As to the father’s request for application of the statutory exception contained

in Iowa Code section 232.116(3)(c), we find the evidence insufficient to show

“termination would be detrimental to the child . . . due to the closeness of the

parent-child relationship.” See A.S., 906 N.W.2d at 476 (noting parent bears

burden to establish exception to termination). We therefore decline to apply the

statutory exception to termination.
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       D.     Reasonable Efforts

       The mother argues the State failed to make reasonable efforts at

reunification. DHS “shall make every reasonable effort to return the child to the

child’s home as quickly as possible consistent with the best interests of the child.”

Iowa Code § 232.102(9). “A child’s health and safety shall be the paramount

concern in making reasonable efforts.” Id. § 232.102(12). Our focus is on the

services provided and the mother’s response, not on services she now complains

were not provided. In re C.B., 611 N.W.2d 489, 494 (Iowa 2000). DHS need only

provide those services that are reasonable under the circumstances. See In re

S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000).

       Specifically, the mother complains she was initially offered too much

visitation, which essentially set her up for failure. We agree with the State that the

mother has not preserved error, as she did not raise this issue to the juvenile court

prior to the termination hearing. See In re A.A.G., 708 N.W.2d 85, 91 (Iowa Ct.

App. 2005) (noting, while DHS “has an obligation to make reasonable efforts

toward reunification, . . . a parent has an equal obligation to demand other,

different, or additional services prior to a permanency or termination hearing”); see

also In re C.H., 652 N.W.2d 144, 148 (Iowa 2002) (noting parent must inform the

juvenile court of a reasonable-efforts challenge in order to preserve error); In re

S.J., No. 14-0978, 2014 WL 4231161, at *2 (Iowa Ct. App. Aug. 27, 2014) (“A

challenge to the sufficiency of the State’s efforts to reunite parents with their

children should be raised when the services are offered.”). In any event, after the

frequency of the mother’s opportunities for visitation were decreased as a result of

her inconsistent attendance, she was still inconsistent in attending visits. The fact
                                          11


that the mother did not begin to consistently attend visitation until around the time

the State filed its termination petition does not fall on the State. We conclude the

State’s efforts were reasonable under the circumstances.

       To the extent the father challenges the State’s provision of reasonable

efforts at reunification for lack of visitation, he has not preserved error, as he did

not raise the issue until the termination hearing. See A.A.G., 708 N.W.2d at 91.

In any event, prior to his incarceration, the father was given ample opportunities to

attend visitation.    He did not exhibit any interest.            And, following the

commencement of his incarceration, DHS reached out to the father to facilitate

visits. The father chose to not have visits with the child in the prison setting.

       E.     Extension

       Both parents seem to request an additional six months to work toward

reunification. If, following a termination hearing, the court does not terminate

parental rights but finds there is clear and convincing evidence that the child is a

child in need of assistance, the court may enter an order in accordance with section

232.104(2)(b).    Iowa Code § 232.117(5).        Section 232.104(2)(b) affords the

juvenile court the option to continue placement of a child for an additional six

months if the court finds “the need for removal . . . will no longer exist at the end of

the additional six-month period.”

       We acknowledge the lack of concern as to the mother regarding substance

abuse, housing, and the mother’s ability to demonstrate parenting skills during

supervised visits. However, even though the mother had previously engaged in

mental-health services for a number of years before the initiation of these

proceedings, mental-health issues still remain. During these proceedings, the
                                          12


mother did not meaningfully participate in mental-health services despite her

acknowledgment that engaging in mental-health therapy was critical for her to

maintain the ability to adequately care for her child on her own. While the mother

began participating in mental-health services after the initial termination hearing,

“[a] parent cannot wait until the eve of termination, after the statutory time periods

for reunification have expired, to begin” to exhibit an interest in regaining custody

of their child. C.B., 611 N.W.2d at 495. Upon our de novo review, we agree with

the juvenile court that, “[g]iven [the mother’s] history, therapy will be a long-term

process,” and “[t]here is no basis to believe [she] will have sufficient progress within

six months to alleviate the concerns of potential harm which could befall [the child]

if he were to be placed with her.”

       As to the father, his anticipated release date was roughly three months after

the hearing for additional evidence. Even assuming he is released at that time,

given his limited involvement in services and interaction with the child, coupled

with his checkered past, we are unable to conclude the child could be placed in his

care after being released from prison and engaging in only about three months of

services in a noncustodial setting.

       We, like the juvenile court, are unable to conclude “the need for removal . . .

will no longer exist at the end of the additional six-month period.” Iowa Code

§ 232.104(2)(b). We thus affirm the denial of the parents’ request for an extension.

IV.    Conclusion

       We affirm the termination of both parents’ parental rights.

       AFFIRMED ON BOTH APPEALS.
