                    IN THE COURT OF APPEALS OF IOWA

                                      No. 17-0995
                               Filed September 27, 2017


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

A.E., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Montgomery County, Amy L.

Zacharias, District Associate Judge.



       A mother appeals the termination of her parental rights to her now-one-

year-old son. AFFIRMED.



       Justin R. Wyatt of Woods & Wyatt, P.L.L.C., Glenwood, for appellant

mother.

       Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney

General, for appellee State.

       Karen L. Mailander of Mailander Law Office, Anita, guardian ad litem for

minor child.



       Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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TABOR, Judge.

       A mother, Ashley, appeals the juvenile court’s order terminating her

parental relationship with now-one-year-old C.E. Her main argument for reversal

is that the Iowa Department of Human Services (DHS) placed too much

emphasis on a September 2015 psychological evaluation expressing the

pessimistic view that her parenting deficiencies would not improve over time.

Ashley also contends the DHS incorrectly believed her speech impediment—a

motor-skills disorder called apraxia—constituted an intellectual disability that

hindered her parenting skills.      After independently reviewing the record,1 we

conclude neither of those issues clouded the juvenile court’s judgment in the

child-welfare proceedings. Like the juvenile court, we find clear and convincing

evidence in the record to support terminating Ashley’s parental rights to her son.

       I.     Facts and Prior Proceedings

       Born in late July 2016, C.E. was removed from the care of his mother

while still in the hospital. The removal was prompted by the concerns of a child

protection worker who had observed Ashley struggling to meet the basic needs

of her older child, J.E., who had been previously removed from Ashley’s care.2

The child protection worker described Ashley’s “disengagement” during

interactions with J.E.—Ashley would “be texting even while feeding” the baby and


1
  We review termination-of-parental-rights proceedings de novo, which means examining
both the facts and law and adjudicating anew those issues properly preserved and
presented. See In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We are not
bound by the juvenile court’s factual findings, but we give them weight, especially when
witness credibility is critical to the outcome. See In re M.W., 876 N.W.2d 212, 219 (Iowa
2016). Proof must be clear and convincing, which means we see no “serious or
substantial doubts as to the correctness [of] conclusions of law drawn from the
evidence.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).
2
  The custody of J.E. is not a subject of this appeal.
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“slightly slapped [J.E.’s] hand and said ‘bad girl’ while [J.E. was] drinking her

bottle.” The DHS exhibit in support of C.E.’s removal also included the following

quotations from a psychological evaluation of Ashley completed by Dr. Rosanna

Jones-Thurman on September 14, 2015:

      [T]he examiner believes that [Ashley] will continue to show
      obviously the low cognitive functioning, which will not change over
      time, but a minimization of responsibility and accountability, as well
      as not acknowledging some of the issues and problems as they
      are. Certainly there appear to be difficulties with understanding
      correct parenting and Ashley really shows no emotion here today.
             Certainly there appear to be some significant mental health
      issues and problems here that will not go away with any amount of
      counseling or education. At this point in time, the examiner would
      not recommend that [Ashley] have her child back even with family
      supervision as it appears that there are too many negative and
      hostile dynamics within the family as well.

      At the hearing on C.E.’s removal in early August 2016, Ashley’s attorney

complained the State “cherry picked” language from Dr. Jones-Thurman’s report

favorable to its position. In its temporary-removal order, the court approved a

second psychological evaluation for Ashley “to determine if there has been any

progress made.” C.E. was placed with a foster family.

      In September 2016, Ashley had three two-hour supervised visits with C.E.

each week. The Boys Town FSRP (family safety, risk and permanency) worker

allowed Ashley’s mother and sister to attend the interactions. According to the

FSRP reports, Ashley struggled with calming C.E. when he was fussy and

passed him to her mother when he cried. On September 22, 2016, the juvenile

court adjudicated C.E. as a child in need of assistance (CINA) under Iowa Code

section 232.2(6)(c)(2) (2016).
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      In late September 2016, Ashley underwent a second psychological

evaluation—this time with Dr. Jamie Ryder. While noting possible underreporting

of negative information by Ashley, Dr. Ryder developed an overall impression

that Ashley met the criteria for an unspecified adjustment disorder—due to

“stressful situations related to DHS involvement with her children and not having

either of her children in her custody at this time.” In closing, the psychologist

asserted: “At this time, there is no information present to me through the course

of this evaluation or otherwise that would suggest she is not capable of

successfully parenting her children.”

      In October 2016, Ashley cancelled six of twelve scheduled visits with C.E.

In its dispositional order in late October, the juvenile court determined Ashley had

not offered any legitimate reasons for cancelling visits, and the court suspected

she may have been focusing more on her boyfriend than her son. The court also

noted the contradictory findings from Dr. Jones-Thurman and Dr. Ryder, musing:

“It is almost as if two different people were the subject of the psychological

evaluations.”   The court decided “it would be helpful to have an updated

psychological   evaluation”    from     Dr.   Jones-Thurman    because     Ashley’s

“circumstances have changed” since her original evaluation.

      Ashley underwent her third psychological evaluation on January 17, 2017.

Dr. Jones-Thurman initially reviewed her September 2015 findings when she

diagnosed Ashley with “ADHS, Unspecified Depressive Disorder, and Mild

Intellectual Disability.” In Dr. Jones-Thurman’s second evaluation, Ashley scored

in the average to below-average range on IQ tests. Dr. Jones-Thurman’s second

report found Ashley to be more emotionally stable, “despite her cognitive
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limitations.” Dr. Jones-Thurman still was not sure Ashley could parent her child

without any help, but encouraged the DHS to give Ashley the opportunity to try

“to help raise her son.”

       The juvenile court held a permanency hearing in early March 2017. In its

order, the court discounted the value of the psychologists’ reports: “Frankly, from

the [c]ourt’s perspective, the three evaluations submitted are not that useful to

the [c]ourt’s determination as to what the permanency goal should be. Each

report is vastly different from the prior report making it difficult to find any of them

are dispositive on this topic.” The court instead focused on the inconsistency in

Ashley’s visits with C.E., noting she had missed more than half of the scheduled

visits in the most recent reporting period. The court also expressed concern

about disruptive behaviors repeatedly exhibited by members of Ashley’s family,

to the extent that the police had been called to intervene. Finally, the court

recounted Ashley’s continued difficulty in retaining “education provided to her

regarding parenting skills” and inability to follow through with suggestions

provided to ensure C.E.’s safety. The court set a permanency goal of adoption.

       On April 10, 2017, the State filed its petition to terminate parental rights.

In a May 17 report to the court, the DHS worker wrote: “Ashley needs to have an

updated assessment of her apraxia diagnosis and to what extent this may or may

not interfere with her ability to parent or limitations she may experience in

attempting to learn child-rearing related skills.”      At the May 25 termination

hearing, Ashley’s attorney established that the DHS worker misunderstood

apraxia to be a cognitive diagnosis rather than a motor-skill disorder.
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       The juvenile court issued its termination decision on June 9. The court

based its termination of Ashley’s parental rights on Iowa Code section

232.116(1)(e) and (h).3 Ashley now appeals.

       II.    Analysis of Mother’s Arguments

       A. Clear and Convincing Evidence of Inability to Reunite

       Ashley claims the State offered insufficient evidence to satisfy the

statutory grounds for terminating her relationship with C.E. Where the juvenile

court has terminated a parent’s rights on more than one ground, we need only

find termination proper under one section to affirm. In re J.B.L., 844 N.W.2d 703,

704 (Iowa Ct. App. 2014).        In this case, we find the juvenile court properly

terminated Ashley’s parental rights under section 232.116(1)(h). This section

provides for termination if the State proves the following elements by clear and

convincing evidence:

               (1) The child is three years of age or younger.
               (2) The child has been adjudicated a [CINA] pursuant to
       section 232.96.
               (3) The child has been removed from the physical custody of
       the child’s parents for at least six months of the last twelve months,
       or for the last six consecutive months and any trial period at home
       has been less than thirty days.
               (4) There is clear and convincing evidence that the child
       cannot be returned to the custody of the child’s parents as provided
       in section 232.102 at the present time.

Iowa Code § 232.116(1)(h).

       Ashley challenges only the fourth element, asserting C.E. can be returned

to her care because she has maintained a suitable home and employment and

has complied with court-ordered services. She contends the weight given to the

3
 Although C.E.’s paternity had not been established, the court also terminated the rights
of any putative father.
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September 2015 evaluation—compounded by the mistaken view of the DHS

workers that her apraxia was a cognitive disability—prevented her from moving

to unsupervised visitation with C.E.

       We find the evidence in the record satisfied the fourth element of

subsection (h). According to the May 2017 DHS report to the court, Ashley was

“dependent on her parents for financial management, financial support, and

transportation.” Ashley moved several times during the CINA case; she was

unemployed and living with her parents at the time of the termination hearing.

The DHS worker testified she had safety concerns about that household. Ashley

never progressed beyond fully supervised visitation because the FSRP workers

lacked confidence in her ability to attend to C.E.’s needs and ensure his safety.

Given these circumstances, termination under section 232.116(1)(h) was

appropriate.   See In re A.M., 843 N.W.2d 100, 111 (Iowa 2014) (affirming

termination where record indicated “after a year of services, the parents were still

not in a position to care” for child). We reject Ashley’s assertion that her first

psychological evaluation or misconceptions about apraxia impacted the ultimate

decision to terminate her parental rights.

       B. Reasonable Efforts

       Once again pointing to Dr. Jones-Thurman’s original views and the DHS

worker’s misunderstanding of apraxia, Ashley argues the DHS “never gave her

the benefit of the doubt” when offering reunification services.       The DHS is

required to make every reasonable effort to return a child to his home—

consistent with the child’s best interests. Iowa Code § 232.102(7); In re C.B.,

611 N.W.2d 489, 493 (Iowa 2000).         If a parent does not request additional
                                       8


services at an appropriate time, we may find the parent has waived the argument

that DHS did not make reasonable efforts. In re C.H., 652 N.W.2d 144, 148

(Iowa 2002). Assuming without deciding Ashley’s reasonable-efforts argument

was preserved, we find the DHS met its requirement to offer reasonable

reunification services.

       The DHS worker’s misunderstanding of Ashley’s apraxia diagnosis did not

impact the services provided. The FSRP reports offered as exhibits identify as

“needs” that Ashley had been diagnosed with both apraxia and intellectual

disability. The reports emphasized: “It will be important for Ashley to continue

working with professionals to accurately understand [C.E.’s] developmental

stages and potential safety concerns that accompany each stage.”

       At the termination hearing, the DHS social worker clarified it was not

Ashley’s speech impediment that caused concern:

       The issue here is not lack of communication or lack of
       understanding what Ashley is saying. Ashley can’t do it. She is not
       able to demonstrate independently how to meet her child’s basic
       needs through her actions and her activity with her child, when you
       observe it, when you sit beside her and observe it, she is not able
       to do it without a lot of redirection and coaching.

       Similarly, the record does not support Ashley’s allegation that Dr. Jones-

Thurman’s September 2015 opinion dampened the DHS drive to offer services

that would led to reunification with C.E.    The DHS was aware of all three

evaluations and acted accordingly.    The DHS May 2017 report to the court

discussed the psychologist’s more positive January 2017 view: “Dr. [Jones-]

Thurman also recommended that Ashley be given more opportunities to parent

her child.   Despite the Department’s efforts to increase interactions, due to
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Ashley’s lack of participation in consistent interactions with [C.E.], the

Department has been unable to increase.” The record affirms Ashley did not

take full advantage of the services offered. She was inconsistent in attending

visitations and failed to maximize contact with her son. We are unconvinced by

her reasonable-efforts argument.

       C. Best Interests

       Ashley next argues termination is not in C.E.’s best interests because “it

would deprive the child of the opportunity to be raised by [his biological] mother.”

Of course, that generic assertion is at play in every termination-of-parental-rights

case. Our best-interests analysis must track Iowa Code section 232.116(2). See

In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (rejecting court’s use of an

unstructured best-interests test). That provision focuses our attention on the

child’s safety; the best placement for furthering his long-term nurturing and

growth; and his physical, mental, and emotional condition and needs. See Iowa

Code § 232.116(2). According to the record, C.E. has been receiving quality

care in his foster home and would be a good candidate for adoption. Here, the

guardian ad litem supported termination, emphasizing Ashley had trouble

retaining the parenting skills she had been taught and could not offer a safe

environment for her young son.

       By the time of the termination hearing, C.E. had been in foster care for

eleven months, virtually since he was born. We conclude the child’s safety and

his physical and emotional needs will be best served by terminating Ashley’s

parental rights and allowing C.E. to move toward a permanent home.

       AFFIRMED.
