                      IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0556
                               Filed June 21, 2017


IN THE INTEREST OF J.R., S.C., and J.R.,
Minor Children,

K.R., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Susan Choate Cox,

District Associate Judge.



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

children. AFFIRMED.



       Jami J. Hagemeier of Williams & Hagemeier, P.L.C., Des Moines, for

appellant mother.

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

General, for appellee State.

       John P. Jellineck of Public Defender Office, Des Moines, guardian ad litem

for minor children.



       Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, Judge.

       This termination-of-parental-rights appeal illustrates the intractable and

destructive nature of domestic violence. A mother, Kyra, appeals from a juvenile

court order terminating her parental rights to her three children—five-year-old

J.C.R., three-year-old S.C., and one-year-old J.L.R. Kyra argues the State failed

to prove the statutory grounds for termination by clear and convincing evidence

and termination was not in the children’s best interests.                Specifically, she

contends the juvenile court should not have based its termination decision solely

on her inability to protect the children from exposure to domestic abuse

perpetrated against her by the children’s father, Shane. Kyra asserts she tried to

cut off contact with Shane, but her safety plans “did not work.”1 In addition, Kyra

maintains the court should not have terminated her parental rights due to the

close bond the children share with her. She alternatively asks for additional time

to work toward reunification.

       No doubt exists that Kyra was the victim of repeated acts of domestic

violence committed by Shane.             The mother’s attorney makes compelling

arguments in the petition on appeal, alleging “re-victimization” faced by Kyra in

these child-welfare proceedings. But after reviewing the entire record and giving

appropriate deference to the juvenile court’s credibility determinations, we find

clear and convincing evidence to support the thorough findings of the juvenile


1
  Throughout her petition on appeal, Kyra also contends “[a] more realistic safety plan[]
should have been created.” Our record does not indicate Kyra raised this concern to the
juvenile court before the termination hearing. To the extent Kyra’s complaint is an
argument the State did not provide reasonable efforts at reunification, we find her
argument is not preserved for our review. See In re T.S., 868 N.W.2d 425, 442 (Iowa Ct.
App. 2015) (“[W]e will not review a reasonable efforts claim unless it is raised prior to the
termination hearing.”).
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court and its ultimate conclusion that “the mother cannot and/or will not protect

the children from their ‘dangerous’ father.”2

       I.     Background Facts and Prior Proceedings

       Shane has engaged in a pattern of domestic abuse against Kyra, often in

the presence of their oldest child, J.C.R.         The Iowa Department of Human

Services (DHS) first became involved with the family in December 2012, when

J.C.R. was one year old, after Kyra reported to the police that Shane had

strangled her during an argument.            The State charged Shane with child

endangerment and domestic-abuse assault but later dismissed both counts,

indicating “victim’s statements post-arrest has made her unavailable for trial.”

       In the next three and a half years, the domestic violence continued, and

the DHS repeatedly expressed concerns to Kyra about her relationship with

Shane. The juvenile court first ordered the removal of J.C.R. and S.C., who was

born in January 2014, from Kyra’s care in March 2014 as a result of those

concerns.     The court adjudicated J.C.R. and S.C. as children in need of

assistance (CINA), ordered no contact between Kyra and Shane, and returned

the children to Kyra’s care three days after removal.

       The children’s return home was short-lived. The following month the court

again ordered their removal after the State presented recordings of phone calls

between Kyra and Shane while he was in jail. Between 2014 and 2016, the
2
  Our review is de novo. See In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). We are not
bound by the fact findings of the juvenile court, but we do give them weight, particularly
regarding the credibility of witnesses. See id. “We will uphold an order terminating
parental rights if there is clear and convincing evidence of grounds for termination under
Iowa Code section 232.116.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). We find
evidence to be “clear and convincing” when there are no “serious or substantial doubts
as to the correctness [of] conclusions of law drawn from the evidence.” See M.W., 876
N.W.2d at 219 (alteration in original) (citation omitted).
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children moved in and out of Kyra’s home on three separate occasions. Kyra

participated   in     therapy   and    domestic-violence-awareness         classes    and

consistently denied having contact with Shane. Yet observations of DHS case

workers, police reports, and, occasionally, Kyra’s own admissions all indicated

the parents continued to spend time together.

       The juvenile court terminated Shane’s parental rights on July 31, 2015. 3

That same evening, a social worker saw Kyra and Shane at a Chuck E. Cheese

restaurant with the children. About a week later, on August 7, J.C.R. and S.C.

were removed from Kyra’s care after a social worker made an unannounced visit

at Kyra’s apartment and found Shane in her bed. J.C.R. and S.C. have not been

returned to Kyra’s care since that removal. Kyra became pregnant with J.L.R.

shortly thereafter.

       J.L.R. was born in June 2016. In violation of Kyra’s safety plans, Shane

visited Kyra in the hospital. He caused a disturbance and was escorted out by

hospital security. J.L.R. was removed from Kyra’s care two days later. Kyra




3
  The court terminated Shane’s parental rights under Iowa Code section 232.116(1)(b)
and (h) (2015). Throughout the proceedings, Shane struggled with mental-health and
substance-abuse issues. His diagnoses included “psychosis, paranoia, depression,
[and] anxiety.” In the termination order, the court noted: “[Shane’s] substance abuse
issues are not resolved as he regularly tested positive for illegal drugs during the [CINA]
proceedings. [Shane] never addressed his mental health issues as he never engaged in
any mental health-related services and he continued his erratic behavior through the
entirety of the [CINA] proceedings.”
        The court continued: “Probably most important to this [c]ourt, the father’s issues
of domestic violence and the toxic relationship that he has with the child’s mother is not
resolved or even addressed.” Particularly concerning was J.C.R.’s role in the violent
incidents between Shane and Kyra. On more than one occasion, J.C.R. witnessed
Shane abusing Kyra. And in other instances, J.C.R. was thrust in the midst of the
dispute. In the incident that first prompted DHS involvement, Shane grabbed then one-
year-old J.C.R. and fled through the streets on foot despite the bitterly cold December
weather. Kyra told police Shane threatened that she would “never see the child again.”
                                        5


testified at J.L.R.’s removal hearing that she did not give Shane the hospital room

number, yet the nursing staff reported he walked directly to Kyra’s room.

      The State filed a petition to terminate Kyra’s parental rights to J.C.R. and

S.C. on June 10, 2016, and to J.L.R. on November 1, 2016. But still, Kyra

continued to have contact with Shane. On September 27, 2016, case workers

visited Kyra’s apartment unannounced and found Shane hiding under her bed.

On October 4, Kyra called the police to report Shane stole her wallet after he

helped her put a new battery in her truck. In mid-November, a case worker saw

Shane pulling out of Kyra’s driveway in her truck. And on November 25, Shane

crashed Kyra’s truck while fleeing from the police, and police found ammunition,

Shane’s personal documents, and marijuana inside.

      At the termination hearing on January 26, 2017, Kyra took the stand to

explain these incidents. Regarding the September 27 encounter, Kyra testified

Shane was at her apartment returning her phone that had been stolen a few days

earlier. She told the court Shane had been using her bathroom and hid under

the bed when the doorbell rang. In explanation for the October 4 contact, Kyra

testified she lied to the police about the incident. According to Kyra’s testimony,

she had been walking to her truck with her sister when Shane approached and

told her he wanted the battery back he had previously put in her car. According

to Kyra, he then took her wallet. Kyra also testified Shane had her truck on

November 25 because he had stolen it. She told the court she reported the

vehicle as stolen, but she did not have documentation of her report to the police.

Kyra summarized her position: “No matter how hard I try to follow my safety plan
                                             6


to keep myself safe and fight to get my children back, Shane always seems to

find a way to violate me not because we’re having contact. He always finds a

way to violate me.” Shane also testified at the termination hearing, generally

corroborating Kyra’s version of events.

       On March 26, 2017, the juvenile court issued a detailed, forty-six-page

order terminating Kyra’s parental rights to her three children under Iowa Code

section 232.116(1)(f) and (h) (2016).4           The court specifically rejected Kyra’s

explanations for her recent contact with Shane:

              First, the mother’s version of events do not make sense.
       The most recent outlandish explanations are similar to the
       explanations she has previously provided—later admitting they
       were false.
              Second, the mother’s demeanor in testifying is unfortunately
       similar to other times she provided the [c]ourt with false information.
       When testifying falsely, the mother stares and rarely blinks.

The court found Shane’s testimony to be similarly incredible.

       Kyra appeals the juvenile court’s termination order.

       II.        Analysis

       A.         Statutory Grounds

       Iowa Code section 232.116(1)(f) and (h) both require a finding by clear

and convincing evidence the children cannot be returned to their mother’s

custody      at   the   time   of   the   termination   hearing.    See   Iowa   Code

§ 232.116(1)(f)(4), (h)(4).     On appeal, Kyra challenges the sufficiency of the

State’s proof of this element only. Kyra contends the juvenile court erred in its

credibility determinations and the State did not prove she maintained an ongoing


4
 The juvenile court also terminated Shane’s parental rights to J.L.R. Shane is not a
party to this appeal.
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relationship with Shane. In the alternative, Kyra asserts: “Even if the appellate

court finds [Kyra] to be engaged in a voluntary relationship with [Shane],

domestic violence alone should not be a reason to terminate parental rights.”

       The threat to children posed by domestic violence in their home may serve

as the basis for terminating parental rights. See In re C.C., 538 N.W.2d 664, 667

(Iowa Ct. App. 1995) (upholding termination where mother’s continuation of an

abusive relationship potentially exposed the children to danger). Our case law

has recognized: “Children raised in homes touched by domestic abuse are often

left with deep scars, revealed in the form of increased anxiety, insecurity, and a

greater likelihood for later problems in interpersonal relationships.” See In re

Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct. App. 1994) (embracing

expert testimony). In addition, “domestic abuse places children at a greater risk

of being physically abused.” Id.

       In this case, we reach the same conclusion as the juvenile court: Kyra’s

three young children could not be safely returned to her care at the time of the

termination hearing because the evidence established that Kyra continued to

maintain a relationship with her abuser throughout the proceedings. Given the

juvenile court’s opportunity to observe Kyra and Shane over the nearly three-year

course of the CINA proceedings, we defer to the credibility findings of the juvenile

court. See In re Marriage of Gensley, 777 N.W.2d 705, 717 (Iowa Ct. App. 2009)

(noting trial court’s ability to sense the parties’ “level of hostility that appeared to

hinder decision making in regard to [their] children”). Moreover, we agree Kyra’s

explanations for her repeated contact with Shane were unbelievable.
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       Quoting In re J.T., Kyra contends: “Past performance is not an absolute

predictor of the future; it only may be indicative of what the future holds.” No. 15-

1338, 2015 WL 5969450, at *4 (Iowa Ct. App. Oct. 14, 2015) (finding evidence

insufficient to support termination when mother testified she ended relationship

with father and only evidence suggesting otherwise was the fact “the mother

gave the father three rides to family events” and a report from an unidentified

individual that the father had resumed living with the mother).     But we are not

faced with the same minimal evidence here.         We rely not only upon Kyra’s

repeated contacts with Shane in the several years the CINA case was pending

but also those interactions in the time leading up to the termination hearing. Just

four months before the termination hearing, DHS workers found Shane hiding in

Kyra’s bedroom. And in the ensuing months, the two parents continued to have

contact with one another.

       Although Kyra voiced the importance of protecting her children from

Shane, her actions and deception throughout the course of the proceedings do

not reflect a true appreciation of the danger he poses or a genuine commitment

to providing a safe home for her children. See In re S.O., 483 N.W.2d 602, 603

(Iowa 1992) (finding return to mother’s care would place children “in imminent

risk of harm” due to her “pattern of sporadic cohabitation and visitation” with

abusive father and her “failure to protect the children from abuse”); In re T.S.,

868 N.W.2d at 435 (finding statutory grounds for termination satisfied when

mother “had attended domestic violence classes; however, she continued to see

her abuser . . . on multiple occasions and in violation of the no-contact order”).

Further, we reject Kyra’s contention that her inability to shield her children from
                                         9


domestic abuse should not be a reason to terminate her parental rights—the

safety and well-being of Kyra’s children are paramount in our decision. See T.S.,

868 N.W.2d at 435; see also Iowa Code § 232.116(2). Accordingly, because the

risk remains that J.C.R., S.C., and J.L.R. would confront harm in their mother’s

care, we find the State satisfied the statutory grounds for termination.

       B.      Best Interests of the Children

       After finding the State proved the statutory requirements for termination,

we next consider whether termination of Kyra’s parental rights was in the

children’s best interests, giving principal consideration to the safety of the

children, to the best placement for fostering their “long-term nurturing and

growth,” and to the children’s “physical, mental, and emotional condition and

needs.” See Iowa Code § 232.116(2).

       Kyra argues termination is not in the children’s best interests because of

the bond she shares with them. But even a robust parent-child bond will not

satisfy the best-interests requirement if a return to the parent’s custody risks

further harm to the child.     See In re P.L., 778 N.W.2d 33, 37 (Iowa 2010)

(directing court to apply “the best-interest framework established in section

232.116(2)”); S.O., 483 N.W.2d at 604 (terminating despite “strong bond”

between mother and children when mother failed to protect children from abusive

father).    Throughout the proceedings, Kyra failed to allay the juvenile court’s

primary concern: her ongoing relationship with Shane. Although, in therapy, Kyra

expressed an understanding of the danger Shane poses to her and the children,

as of yet, she has been either unable or unwilling to cut off contact with him.

Kyra’s submission to continuing contact with Shane is particularly concerning
                                         10


because past domestic violence occurred in front of J.C.R., including one

incident in which Shane argued with Kyra while holding J.C.R. in one hand and

an eight-inch butcher knife in the other. Considering the children’s safety and

long-term emotional needs, we find termination is in their best interests.

       C.     Permissive Factors and Additional Time

       Finally, Kyra argues the juvenile court should have declined to terminate

her parental rights under Iowa Code section 232.116(3)(c) or, alternatively,

granted her an additional six months to achieve reunification under Iowa Code

section 232.104(2)(b).

       Under Iowa Code section 232.116(3)(c), the court may decline to

terminate parental rights if the court finds it “would be detrimental to the child at

the time due to the closeness of the parent-child relationship.” The court has

discretion “based on the unique circumstances of each case and the best

interests of the child, whether to apply the factors in [section 232.116(3)] to save

the parent-child relationship.” In re D.S., 806 N.W.2d 458, 475 (Iowa Ct. App.

2011). For the reasons discussed above, we decline to find the closeness of the

relationship between Kyra and her children should prevent termination here.

       Nor do we find a six-month extension to be appropriate. To grant a parent

more time to achieve reunification, the court must “enumerate the specific

factors, conditions, or expected behavioral changes which comprise the basis for

the determination that the need for removal of the child from the child’s home will

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

§ 232.104(2)(b). Considering Kyra’s repeated dishonesty with the DHS workers

and the juvenile court, her continued contact with Shane, and the length of time
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already afforded for reunification, we cannot conclude the need for the children’s

removal will be resolved in another six months.

          Accordingly, we affirm the juvenile court order terminating Kyra’s parental

rights.

          AFFIRMED.
