                     IN THE COURT OF APPEALS OF IOWA

                                    No. 20-0781
                               Filed August 19, 2020


IN THE INTEREST OF C.M., J.M., and B.M.,
Minor Children,

J.M., Mother,
       Appellant,

T.M., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Cass County, Jennifer A. Benson,

District Associate Judge.



       A mother and father separately appeal the juvenile court order terminating

their parental rights. AFFIRMED ON BOTH APPEALS.



       Donna Bothwell of Bothwell Law Office, Logan, for appellant mother.

       William T. Early, Harlan, for appellant father.

       Thomas J. Miller, Attorney General, and Meredith Lamberti, Assistant

Attorney General, for appellee State.

       Karen Mailander of Mailander Law, PLC, Anita, attorney and guardian ad

litem for minor children.



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

       Jessica and Tony are the parents of three children under the age of five.

The juvenile court terminated their parental rights to those children, and they filed

separate petitions on appeal. Tony only challenges the denial of his motion to

continue the termination trial. Jessica contends (1) the State did not prove grounds

for termination, (2) the Iowa Department of Human Services (DHS) did not make

reasonable efforts to reunify their family, and (3) more time for reunification would

be in the children’s best interests. Finding no merit in these four claims, we affirm

on both appeals.

       I.      Facts and Prior Proceedings

       The children at issue are J.M., who was born in September 2015; C.M., who

was born in December 2016; and B.M., who was born in January 2019.1 The DHS

first intervened in March 2016 when J.M. was just an infant, citing the parents for

a lack of supervision. That was the first of four founded child abuse assessments

against the parents.    The ongoing concerns were substance abuse by both

parents, domestic violence perpetrated by Tony, and Jessica’s mental-health

impairments.

       The juvenile court removed J.M. and C.M. from their home in April 2018 and

adjudicated them as children in need of assistance (CINA) two months later. They

have bounced around ever since, experiencing ten different placements through

the duration of the CINA case. A couple of those placements were back with



1Tony is the biological father of J.M. and B.M., and the legal father to C.M.
Paternity for C.M. was uncertain.
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Jessica when she made strides in substance-abuse treatment. But those spells of

success were soon followed by setbacks, leaving the children in precarious

situations.

       When B.M. was born in early 2019, his siblings were in relative placement.

Jessica resumed care of all three children that spring. But within a month she was

hospitalized in a mental-health emergency. And the DHS learned that she and

Tony were using methamphetamine while caring for the children. The DHS again

removed the children, placing the older children in foster care in late May 2019.

The baby’s whereabouts were unknown until early June when authorities found

him in Tony’s apartment. B.M. had scratches on his forehead and a painful case

of diaper rash.

       Through the summer and fall of 2019, both parents continued to struggle

with drug and alcohol abuse. The most glaring incident occurred in mid-October

when emergency responders found Jessica unresponsive in a friend’s backyard.

Upon arrival at the hospital, she tested positive for methamphetamine and

benzodiazepines and had a blood alcohol level of .275. She spent several days in

intensive care. A few weeks later, she returned to the emergency room after again

consuming methamphetamine and alcohol as well as injecting the opioid, Dilaudid.

       During those months, the parents attended supervised visits with the

children. But the interactions were not always positive. The children would act

out, and the parents had a hard time controlling or consoling them. By October,

the parents’ attendance at visits waned. In November 2019, neither Jessica nor

Tony participated in visits with the children. They attended only two visits in
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December. Also that month, Jessica continued to abuse illegal drugs and suffer

mental-health crises, resulting in three more trips to the emergency room.

       In January 2020, the State filed a petition to terminate parental rights. As

the juvenile court found, “At the beginning of March 2020, Jessica’s already serious

substance abuse and mental health issues escalated.” On March 6, the court

approved an application for involuntary hospitalization of Jessica as a chronic

substance abuser after holding a hearing under Iowa Code section 125.82 (2020).

That same day, the juvenile court heard testimony on the termination petition. The

court terminated parental rights in a May order. Both parents appeal.

       II.    Scope and Standards of Review

       We review termination-of-parental-rights proceedings de novo. In re M.D.,

921 N.W.2d 229, 232 (Iowa 2018). We are not bound by the juvenile court’s

findings of fact. Id. But we give them weight, especially in assessing witness

credibility. Id. Despite the overarching de novo review for termination cases, we

review the denial of Tony’s motion to continue for an abuse of discretion. Id. An

abuse occurs when the court grounds its decision on reasons that are clearly

untenable. In re A.M., 856 N.W.2d 365, 370 (Iowa 2014). Fundamental to all

levels of review is our foremost attention to the children’s best interests. In re J.C.,

857 N.W.2d 495, 500 (Iowa 2014).

       III. Analysis

       A.     Motion to Continue

       We start with Tony’s argument that the juvenile court abused its discretion

in denying his motion to continue. At the start of the termination hearing, Tony’s

counsel moved for a continuance. Counsel asserted: “I haven’t had a chance to
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talk with my client really for several months, and I met with him just briefly this

morning but really haven’t had an opportunity to adequately prepare.” Jessica’s

attorney joined in the request for a continuance.

       From the bench, the juvenile court ruled: “Based on the history of the case

and the fact that the children have been removed from their parents’ home in this

case since June of 2019, I am going to deny the motion to continue as further

delays of permanency are not warranted.” In its written ruling, the court expanded

on its rationale, blaming Tony’s lack of involvement in the CINA case for the

inability of his attorney to fully prepare for the termination trial. The court also noted

the attorneys, who were experienced in juvenile court and familiar with this case,

had ample time “to prepare a defense as to the statutory grounds for termination.”

Finally, the court reasoned it was not in the children’s best interests to delay

permanency.

       Like the juvenile court, we find a delay would have been detrimental to the

best interests of J.M., C.M., and B.M. See M.D., 921 N.W.2d at 233. The court

did not abuse its discretion in denying a continuance. Tony had an opportunity to

be heard at the termination hearing. See Iowa Code § 232.112. But he chose to

present no evidence. We find the juvenile court properly exercised its discretion

in denying Tony’s motion to continue.

       B.     Statutory Basis for Termination

       We next turn to Jessica’s argument that the State did not present clear and

convincing evidence to support the grounds for termination under Iowa Code

section 232.116(1).       The juvenile court terminated Jessica’s rights under
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paragraphs (e) and (l) as to all of the children, paragraph (f) as to J.M., and

paragraph (h) as to B.M.

       When the juvenile court terminates based on several grounds, we may

affirm the order on any ground supported by the record. In re A.B., 815 N.W.2d

764, 774 (Iowa 2012). We find termination was proper under section 232.116(1)(l).

       That paragraph applies if the evidence shows:

              (1) The child has been adjudicated a child in need of
       assistance pursuant to section 232.96 and custody has been
       transferred from the child’s parents for placement pursuant to section
       232.102.
              (2) The parent has a severe substance-related disorder and
       presents a danger to herself or others as evidenced by her prior acts.
              (3) There is clear and convincing evidence that the parent’s
       prognosis indicates that the child will not be able to be returned to
       her custody of the parent within a reasonable period of time
       considering the child’s age and need for a permanent home.

Iowa Code § 232.116(l).

       The second element requires proof of “a severe substance-related

disorder.”   Id. § 232.116(1)(l)(2).    The legislature defined that term as “a

diagnosable substance abuse disorder of sufficient duration to meet diagnostic

criteria specified within the most current diagnostic and statistical manual of mental

disorders published by the American psychiatric association that results in

functional impairment.” See id. § 125.2(15).

       At trial, the juvenile court granted the State’s request to take judicial notice

of the court order affirming Jessica’s March 2020 commitment under chapter 125

(dealing with substance-abuse related disorders). In that order, the court found

Jessica had been diagnosed at the Audubon County Hospital with “amphetamine

use disorder, severe.” The order noted health professionals recommended she be
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committed to inpatient treatment because of her suicidal ideations, hallucinations,

and inability to make treatment decisions.2

       On appeal, Jessica contends the State did not offer clear and convincing

evidence that she “continues to present a danger to herself and others.” She

insists any danger subsided following her inpatient commitment. She also points

out that during the CINA case she had some treatment successes and “long bouts

of sobriety.”

       In our de novo review, we find the State offered clear and convincing

evidence that, as shown by her prior acts, Jessica presented an ongoing danger

to herself and her children because of her severe substance-abuse related

disorder. The record contains no evidence that her involuntary hospitalization,

which coincided with the time of the termination hearing, would resolve her

persistent and long-standing substance-abuse disorder. In fact, judging from her

past efforts at treatment, she likely continued to present a danger. For example,

her inpatient treatment at Heart of Iowa in the summer of 2018 did not result in

reunification with the children.   And she continued to use methamphetamine

despite her outpatient treatment at Zion Recovery in the spring of 2019. Later that

summer, she left inpatient treatment at Heartland Family Services against medical

advice. Her hospitalizations precipitated by drug and alcohol abuse repeated

through the fall and winter of 2019. In early January 2020, she began outpatient


2 Jessica complains on appeal that “no evidence regarding the statements made
in the committal hearing was admitted in the termination case, including any
statements from health professionals.” Yet at trial, Jessica’s counsel objected to
the court taking judicial notice of those “sealed court filings.” The juvenile court
took judicial notice of the court order in the substance-abuse commitment case,
citing In re T.C., 492 N.W.2d 425, 429 (Iowa 1992).
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treatment at Lydia House, only to quit after two days. At a visit with the children

on January 12, Jessica exhibited paranoid delusions. Six days later, she arrived

at the emergency room admitting to methamphetamine use.

       This pattern of fits and starts with treatment bodes poorly for reunification.

At the time of the termination hearing, Jessica’s severe substance-abuse disorder

impaired her ability to make sound treatment decisions and posed a serious risk

to her own well-being and that of the children. We find clear and convincing

evidence in the record that, given her prognosis, Jessica was unable to resume

custody of the children within a reasonable time considering their young ages and

their need for a permanent home. We affirm termination under paragraph (l).

       C.     Reasonable Efforts

       Jessica next argues the DHS did not make adequate efforts toward

reunification. She contends that when the court adjudicated the youngest child,

B.M., as a CINA, it did not hold an initial dispositional hearing as required by Iowa

Code section 232.102(9)(a). Jessica also complains she was only offered three

months of services to reunify with B.M.

       In response, the State notes the family had already been involved with

juvenile court services for J.M. and C.M. when B.M. was born in January 2019.

The following June, the DHS removed all three children from Jessica’s care

because of her continued substance abuse and erratic behavior. In July 2019, all

parties agreed to a joint CINA adjudication and dispositional hearing. Jessica is

not entitled to relief on this procedural issue.

       The DHS must “make every reasonable effort” to return children to their

home as quickly as possible consistent with their best interests. See In re C.B.,
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611 N.W.2d 489, 493 (Iowa 2000) (quoting Iowa Code section 232.102(7)). “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. Our focus is on the parent’s

response to the services provided. Id. at 494. The State met its burden here. The

DHS offered services to Jessica consistent with the best interests of all three

children. But she was unable to overcome her parenting deficiencies, largely due

to her severe substance-abuse disorder. She is not entitled to relief on this issue.

       D.     Best Interests and Delay of Permanency

       Jessica also argues giving her more time to reunify would be in the best

interests of the children. We disagree. We determine best interests under the

framework in Iowa Code section 232.116(2).         That provision focuses on the

children’s safety, as well as the best placement for furthering their “long-term

nurturing and growth” and their “physical, mental, and emotional condition and

needs.” See Iowa Code § 232.116(2). Delaying permanency would not serve the

children’s best interests. The record shows the children suffer behavioral and

emotional setbacks after interactions with Jessica. The juvenile court believed

waiting to terminate parental rights “would be traumatic and detrimental to the

children’s futures.” In our de novo review, we agree with that assessment.

       AFFIRMED ON BOTH APPEALS.
