                     IN THE COURT OF APPEALS OF IOWA

                                   No. 19-2139
                                Filed April 1, 2020


IN THE INTEREST OF J.G.,
Minor Child,

C.T., Mother,
       Appellant,

K.G., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, Christine Dalton,

District Associate Judge.



       A mother and father separately appeal the termination of their parental

rights. AFFIRMED ON BOTH APPEALS.



       Jean Capdevila, Davenport, attorney for appellant mother.

       G. Brian Weiler, Davenport, attorney for appellant father.

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

Attorney General, for appellee State.

       Timothy J. Tupper of Tupper Law Firm, Davenport, attorney and guardian

ad litem for minor child.



       Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J.*

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

(2020).
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VOGEL, Senior Judge.

         The mother and father separately appeal the termination of their parental

rights to J.G. While only the mother asserts the State failed to prove the statutory

grounds for termination, both parents assert termination is not in the child’s best

interests and the Iowa Department of Human Services (DHS) failed to make

reasonable efforts for reunification. The father also requested additional time for

reunification. We affirm the termination of the parental rights of both parents.

         I.     Background Facts and Proceedings

         J.G. was born September 2017 with underdeveloped eyes and limited

vision.1 The family came to the attention of DHS in January 2018 when law

enforcement found a large amount of marijuana and drug paraphernalia in the

family home while executing a search warrant. Both parents were already on

probation at the time, and both parents were charged with child endangerment and

drug offenses resulting from the search. During the DHS investigation, the mother

acknowledged she and the father used marijuana daily.          The parents initially

agreed to DHS services, but they largely refused to cooperate with

recommendations at the time. The father was subsequently incarcerated on May

12 for felony eluding and driving while barred. The mother has been in and out of

jail several times both before and throughout DHS involvement here. On June 28,

the juvenile court issued an ex parte order removing the child from the parents’

care. On September 14, the court adjudicated J.G. in need of assistance. After

nearly one year of offered services, the court held a termination hearing on



1   J.G.’s condition is known as optic nerve hypoplasia.
                                             3


September 26, 2019. On December 11, the court issued its order terminating the

parental rights of both parents.

       II.    Standard of Review

       We review termination proceedings de novo. In re P.L., 778 N.W.2d 33, 40

(Iowa 2010). We give weight to the juvenile court’s factual findings, but they do

not bind us. In re M.D., 921 N.W.2d 229, 232 (Iowa 2018). The paramount

concern is the child’s best interests. Id.

       III.   Analysis

       We begin by considering the statutory grounds for termination. See P.L.,

778 N.W.2d at 40. The juvenile court terminated the parental rights of both parents

under Iowa Code section 232.116(1)(h) (2019).2 The mother challenges this

ground for termination under the fourth element only, arguing the State failed to

prove the child could not be returned to her care at the time of the termination

hearing. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the

statutory language “at the present time” to mean “at the time of the termination

hearing”).




2 Under Iowa Code section 232.116(1)(h), the juvenile court may terminate
parental rights if it finds all of the following:
              (1) The child is three years of age or younger.
              (2) The child has been adjudicated a child in need of
      assistance 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.
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      As an initial matter, the mother argues the juvenile court applied a lower

legal standard than “clear and convincing evidence.”             See Iowa Code

§§ 232.116(1)(h), 232.117(3).     She notes that during a November 4, 2019

permanency-review hearing—occurring over one month after the termination

hearing—the juvenile court remarked it has gone “back and forth on” termination

and “just can’t” reach a decision. The court then issued its termination order on

December 11, more than two months after the termination hearing and over one

month after the review hearing. The mother argues the court’s hesitancy during

the November review hearing “illustrates the antithesis of clear and convincing

evidence.” However, the record for the termination proceeding closed at the time

of the termination hearing. The court’s later comments during the review hearing

are outside the record, and we cannot consider them. See Iowa R. App. P. 6.801

(explaining the materials that “constitute the record on appeal”). Furthermore, the

court’s later comments could reflect its opinion that any part of the three-step

analysis under Iowa Code section 232.116(1), (2), or (3) presents a close call, such

as the best interests of the child or a claimed parental bond. Regardless, we

review the record de novo to ensure we are satisfied the State proved the grounds

for termination by clear and convincing evidence. See in re Marriage of Brown,

778 N.W.2d 47, 54 (Iowa Ct. App. 2009) (noting any error by the district court in

applying the standard of proof “would be obviated by our de novo review”).

      The mother points to her improved parenting skills, which her social worker

attested to at the hearing, as proof J.G. could be returned to her. While we

recognize the mother has made progress, her efforts are simply too little, too late

and leave J.G.’s safety and wellbeing at risk. DHS has been involved with this
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family since January 2018. The mother described things as “very different” since

she last left jail in April 2019, but her progress since then cannot erase her prior

failures to participate in services. DHS became involved due to drug use by the

parents in the presence of J.G., and the mother’s drug use remained a concern

throughout these proceedings. She sporadically participated in drug testing, with

multiple missed tests and multiple positive results. She underwent a substance-

abuse evaluation in June 2019, which recommended no treatment after she falsely

claimed she last used marijuana in March 2018. She had a positive drug test less

than one month before the termination hearing, and she had a pending drug-

possession charge at the time of the hearing, indicating her drug and legal issues

are ongoing. Her mental health is also a concern, as she testified she has been

diagnosed with post-traumatic stress disorder, anxiety, depression, and attention

deficit hyperactivity disorder. She began seeing a mental-health therapist after

DHS became involved, though she acknowledged “inconsistencies” with attending

these appointments.    In August 2019, she stopped seeing this therapist and

revoked her release for the therapist to share information with DHS; as a result,

the record contains no documentation of her treatment with this therapist. She

was not seeing any therapist at the time of the hearing, though she testified she

has an appointment scheduled with a new therapist in October 2019. Due to her

continuing issues with criminal behavior, substance use, and mental health, we

find clear and convincing evidence the child cannot be returned to her care.

Therefore, we find the statutory grounds for termination met by clear and

convincing evidence as to the mother. See Iowa Code § 232.116(1)(h).
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       Although the father does not directly challenge the statutory grounds for

termination, he claims he has “substantially complied” with DHS expectations. He

has been incarcerated since May 2018. The initial DHS case plan detailed that

the father “will provide for [J.G.’s] daily physical, emotional, educational and

medical needs.”      However, the father remained incarcerated through the

termination hearing with an uncertain release date.           Due to his ongoing

incarceration, the father cannot claim to have “substantially complied” with DHS

expectations, the child cannot be returned to his care, and his indirect challenge

to the statutory grounds for termination therefore fails.

       We next consider whether termination is in the child’s best interests.3 See

P.L., 778 N.W.2d at 40; see also Iowa Code § 232.116(2) (directing the court to

“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.”).

       Regarding the mother, she had visitation with the child three times per week

at the time of the termination hearing. The social worker testified these visitations

have gone “[w]onderfully,” and the mother points to these visits and her progress

discussed above as evidence that terminating her parental rights is not in the

child’s best interests.   However, the social worker testified these “wonderful”

visitations only began when the mother left jail in April 2019, over one year after



3 After the best-interests analysis, the juvenile court considers whether any of the
permissible factors in section 232.116(3) exist; if so, the court “need not” terminate
the parent-child relationship. See P.L., 778 N.W.2d at 41. Because neither parent
alleges the existence of any of these factors, we do not review this step on appeal.
See id. at 40.
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DHS became involved.            Furthermore, the child has numerous therapy

appointments due to vision issues. The mother attends one of these appointments

each week as part of visitation. For a two-week period in August 2019, she

attended three of these appointments each week, allowing her to visit the child

every weekday.      She testified she stopped attending the additional weekly

appointments after two weeks because it was too difficult to attend the morning

appointments after working overnight for her job. However, she was vague in

describing her work schedule, testifying, “I make my own schedule” and that she

took two weeks off from work prior to the hearing. Considering her failure to attend

most of the child’s necessary therapy appointments despite her flexible schedule

and recent time off from work, as well as her limited progress described above, we

find the termination of her parental rights is in the child’s best interests.

       Regarding the father, he has been incarcerated for all but about the first

eight months of the child’s life. He testified he spent “pretty much most of the day

with” the child prior to incarceration, but he has only had “a phone relationship with”

the child since incarceration. He testified he expects to be released to a halfway

house by November 2019—after the termination hearing—but the DHS report

notes he has been saying he expects to be released soon for several months. He

has had no physical contact with the child in over one year, and he has not yet set

up visitation with the child since he was transferred to a closer prison. Due to this

limited contact and uncertain incarceration release date, we find termination of the

father’s parental rights is in the child’s best interests. See In re B.H.A., 938 N.W.2d

227, 233 (Iowa 2020) (finding, in the context of a private termination, Iowa case
                                           8


law “should not be relied upon as an endorsement of protecting an incarcerated

parent’s rights at the expense of a child’s best interest”).

       Next, both parents assert DHS failed to make reasonable efforts toward

reunification.   “[T]he reasonable efforts requirement is not viewed as a strict

substantive requirement of termination.” In re C.B., 611 N.W.2d 489, 493 (Iowa

2000). “Instead, the scope of the efforts by the DHS to reunify parent and child

after removal impacts the burden of proving those elements of termination which

require reunification efforts.” Id. “The State must show reasonable efforts as a

part of its ultimate proof the child cannot be safely returned to the care of a parent.”

Id. The services DHS offered to the parents include mental-health evaluation and

treatment, substance-abuse evaluation and treatment, transportation, parenting

education, and visitation.     On October 22, 2018, the father filed a motion

specifically requesting visitation in prison. In a November 19, 2018 dispositional

order, the juvenile court denied the father’s motion, concluding that “given [the

child’s] vision problems and age the Department is not required to provide visitation

while [the father] is so far away.” As mentioned above, the father has not set up

visitation since transferring to a closer prison. The mother also requested more

visitation from DHS, but she declined to consistently attend the child’s therapy

appointments when given the opportunity to do so. Therefore, we consider the

services DHS provided for reunification as reasonable and find the evidence

sufficient for termination. See C.B., 611 N.W.2d at 493.

       Finally, the father requested additional time for reunification. The juvenile

court may authorize a six-month extension of time if it determines “the need for

removal of the child from the child’s home will no longer exist at the end of the
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additional six-month period.” Iowa Code § 232.104(2)(b). The father has not

addressed the issues that led to removal, and it remained unclear to the juvenile

court whether the father would still be incarcerated in six months. Therefore, the

court appropriately denied his request for additional time. See In re D.S., 806

N.W.2d 458, 474 (Iowa Ct. App. 2011) (“We will not gamble with a child’s future by

asking him to continuously wait for a stable biological parent, particularly at such

a tender age.”).

       AFFIRMED ON BOTH APPEALS.
