                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0836
                               Filed August 7, 2019


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

J.E., Mother,
       Appellant,

C.E., Father of J.C. and M.C.,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Scott Strait,

District Associate Judge.



      Parents separately appeal from the termination of their respective parental

rights to their children. AFFIRMED ON BOTH APPEALS.



      J. Joseph Narmi, Council Bluffs, for appellant mother.

      Maura C. Goaley, Council Bluffs, for appellant father.

      Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

      Marti D. Nerenstone, Council Bluffs, guardian ad litem for minor children.



      Considered by Tabor, P.J., and Mullins and May, JJ.
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MAY, Judge.

       The juvenile court terminated a mother and father’s parental rights to their

children, M.C. and Je.C. The juvenile court also terminated the mother’s parental

rights to another child, Jo.C.1 On appeal, the mother contends the juvenile court

erred in (1) denying her motion to reopen the record; (2) finding that statutory

grounds for termination exist; (3) finding that termination is in the children’s best

interests; and (4) finding that no exception to termination applies. The father of

M.C. and Je.C. (the father) contends the juvenile court erred in (1) finding that

statutory grounds for termination exist and (2) finding that termination is in the

children’s best interests. We affirm the juvenile court.

I. Background Facts and Proceedings

       Jo.C. was born in 2004. Twins M.C. and Je.C. were born in 2009. This

family came to the attention of the Iowa Department of Human Services (DHS) in

2009 because of allegations that the mother had denied critical care to the

children.2 DHS determined the allegations were founded.

       In 2013, DHS reported two more founded allegations of child abuse against

the mother. The family voluntarily engaged in DHS services. In March 2013, law

enforcement took the children into protective custody. In May, the juvenile court

adjudicated each of the children as a child in need of assistance (CINA). The

mother struggled to control her emotions and react appropriately to stressors.

Even so, by March 2014, M.C. and Je.C. were returned to their parents’ care




1
   No father appeals the termination of parental rights with respect to Jo.C.
2
  A fourth child was also identified as a victim in the 2009 assessment. Because that child
is now over eighteen, parental rights to that child are not at issue.
                                         3


subject to DHS supervision. Jo.C. was to be returned to the mother’s care by the

end of April. In July, the juvenile court dismissed the CINA proceedings as to all

children.

       But then, in July 2016, the juvenile court again removed the children from

the home following a domestic-violence incident perpetrated by the mother. The

father reported that the mother struck him with a piece of wood “with nails in it,”

struck him a “heavy glass prism,” and stabbed him with a broken snow globe. The

father required three to four medical staples in his head and seven in his side.

       In August, the juvenile court adjudicated each of the children as CINA. The

court found “there are concerns of domestic violence, mental health, and

substance abuse” regarding the mother and father.

       The mother was placed on probation for assaulting the father.               Her

probation was revoked after she tested positive for methamphetamine. She was

in jail from January to June 2017.

       In June, the juvenile court closed the CINA proceedings. The court placed

M.C. and Je.C. in the father’s care. In a separate proceeding, the district court

appointed a guardian for Jo.C.

       The mother returned to jail in August. The father attempted suicide the

same month.

       By September, DHS became involved with the family again. The mother

remained in jail. The father exhibited signs of methamphetamine use. He was

homeless while caring for the children. The juvenile court removed M.C. and Je.C.

from   their   father’s   care.   In   October,   Jo.C.’s   guardian   admitted     to
                                           4


methamphetamine use and being homeless. In November, the court adjudicated

all three children as CINA.

         On February 15 and 26, 2019, the juvenile court held a termination hearing.

On May 5, the mother moved to reopen the record. She sought leave to submit

documentation showing she completed the Iowa Domestic Abuse Program (IDAP)

after the termination hearing.      On May 6, the court denied the motion and

terminated the mother’s parental rights pursuant to Iowa Code section

232.116(1)(e) and (f) (2018). The court also terminated the father’s parental rights

pursuant to code section 232.116(1)(e) and (f).

         Both parents appealed. Our supreme court transferred the case to this

court.

II. Reopening the Record

         As a preliminary issue, we address the mother’s claim that the juvenile court

erred in denying her motion to reopen the record. “We review the denial of motions

to reopen the record for an abuse of discretion. In order to show an abuse of

discretion, a party must show the juvenile court’s action was unreasonable under

the attendant circumstances.” In re L.T., 924 N.W.2d 521, 526 (Iowa 2019).

         Here, the mother moved to reopen the record about two and a half months

after the termination hearing.       She sought to introduce evidence that she

completed IDAP after the termination hearing. On the final day of the hearing, the

mother testified that she had only completed sixteen of the twenty-five required

IDAP classes.

         “When a juvenile court diligently enters a termination order after a hearing,

there is generally no basis to complain about a discretionary refusal of the juvenile
                                             5


court to reopen the record, particularly when the evidence was available to the

parties at the time of the hearing.” Id. In the present action, we find the juvenile

court diligently entered the termination order following the hearing. 3 Moreover, the

mother was able to testify about her progress with IDAP at the termination hearing.

Finally, we note the mother’s failure to complete IDAP before the hearing was her

own fault. We will not encourage parents to wait until the eve of termination to

address their parenting deficiencies. See In re C.B., 611 N.W.2d 489, 495 (Iowa

2000) (noting a parent cannot begin to express an interest in parenting at the eve

of termination).

       We find no abuse of discretion in the juvenile court’s refusal to reopen the

record.

III. Merits of Termination

       A. Standard of Review

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

(Iowa 2010). “We examine both the facts and law, and we adjudicate anew those

issues properly preserved and presented.” In re C.S., No. 13-1796, 2014 WL

667883, at *1 (Iowa Ct. App. Feb. 19, 2014). “Although we are not bound by them,

we give weight to the trial court’s findings of fact, especially when considering

credibility of witnesses.” In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).

       B. Analysis

       We generally use a three-step analysis to review the termination of a

parent’s rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). First, we must


3
  The juvenile court took judicial notice of one guardianship file and nine CINA files at the
termination hearing, which required the court’s review prior to entry of its order.
                                          6


determine whether a ground for termination under section 232.116(1) has been

established. Id. at 472–73. If a ground for termination has been established, we

must then consider “whether the best-interest framework as laid out in section

232.116(2) supports the termination of parental rights.”         Id. at 473 (citation

omitted). Finally, we must consider “whether any exceptions in section 232.116(3)

apply to preclude termination of parental rights.” Id. (quoting In re M.W., 876

N.W.2d 212, 220 (Iowa 2016)).

        1. Grounds for Termination

        Our first step is to determine if a ground for termination under section

232.116(1) has been established. See id. at 472–73. “The State has the burden

of proving the grounds for termination by clear and convincing evidence.” In re

H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct. App. 1997). “When the juvenile court

terminates parental rights on more than one statutory ground, we may affirm the

juvenile court’s order on any ground we find supported by the record.” In re A.B.,

815 N.W.2d 764, 774 (Iowa 2012). We choose to address grounds for termination

under Iowa Code section 232.116(1)(f) with respect to both parents.

        Section 232.116(1)(f) authorizes termination of a parent’s parental rights

when:

               (1) The child is four years of age or older.
               (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 twelve of the last eighteen months, or
        for the last twelve consecutive months and any trial period at home
        has been less than thirty days.
               (4) There is clear and convincing evidence that at the present
        time the child cannot be returned to the custody of the child’s parents
        as provided in section 232.102.
                                             7


Here, both parents challenge element four: whether the children could be returned

to their care. Following a careful review of the record, we agree with the juvenile

court’s conclusion “that the children cannot now return to the care of either parent.”

       At the heart of the issue is the mother’s conduct. She fails to appreciate the

detrimental impact of her conduct on her children. She continues to behave in a

manner incompatible with parenting. For example, during the pendency of the

most recent CINA proceedings, she created a significant disturbance at a medical

appointment for Je.C. It was so severe that the medical provider requested the

mother not attend any future appointments.

       In another instance, the mother behaved in an inappropriate manner with

other medical staff. The mother requested a second opinion related to Je.C.’s

medical treatment. When a second provider concluded Je.C.’s physician was

appropriately managing Je.C.’s care, the mother became “irate.” She then claimed

someone at a medical facility had stated Je.C. needed immediate care to avoid

kidney dialysis. Her claim was not factually supported.

       The mother was also banned from the local YMCA after she called and

harassed the facility’s staff on a daily basis. As a result of this conduct, the family

could not carry out visitation at the facility.

       Consider also the following concerns, which were raised in a June 2018

DHS report:

               There are concerns with [the mother]’s anger. In the past [the
       mother] has tried to kill [the father] in front of [Je.C.] and [M.C.]
       [Jo.C.’s guardian] has reported that [the mother] has tried to run him
       over with her car and [the mother] continues to deny the allegations
       of trying to suffocate [M.C.] There was also an incident in December
       of 2017 were (sic) [the mother] and [the father] broke into [Jo.C.’s
       guardian]’s home and [the mother] started physically assaulting
                                          8


       [Jo.C.’s guardian]. When confronted[,] [the mother] admits to being
       in the home but denies she became physically aggressive even
       though [Jo.C.’s guardian] was able to call [an FSRP provider] and
       she was able to hear the commotion in the background.

       Like the mother, the father also chooses inappropriate conduct. As noted

above, he accompanied the mother when she broke into Jo.C.’s guardian’s home.

On another occasion, he grabbed Jo.C. by the neck in a hospital parking lot. A

police officer had to intervene. During a supervised visit in January 2019, the father

bit M.C. when the supervisor was in the restroom. The bite caused a bruise to

M.C.’s arm.

       These and other instances show that the children cannot be safely returned

to either parent. We recognize, however, “[t]he State must show reasonable efforts

as part of its ultimate proof the child cannot be safely returned to the care of a

parent.” C.B., 611 N.W.2d at 493. Here, both the mother and the father argue

they did not receive reasonable efforts. The mother asserts DHS unfairly framed

facts in a negative manner in its reports. She also claims DHS improperly limited

her visitation.

       “When assessing reasonable efforts, the safety and health of the children

‘shall be the paramount concern.’” In re K.W., No. 2-560, 2002 WL 1842962, at *1

(Iowa Ct. App. Aug. 14, 2002) (quoting Iowa Code § 232.102(10)(a) (2001));

accord Iowa Code § 232.102(12)(a) (2018). Although we expect DHS to report

accurately, we know of no other requirement that DHS “frame” facts in a particular

manner. Rather, reasonable efforts focuses “on services to improve parenting.”

C.B., 611 N.W.2d at 493.         This “includes visitation designed to facilitate

reunification while providing adequate protection for the child.” Id.
                                          9


        Although the mother only received two hours of supervised visitation per

week, we find that was reasonable given the circumstances. While the mother

made strides with her substance-abuse issues and housing, her temperament

remained volatile. The children are fearful of the mother. They have to be careful

not to upset her so she doesn’t “freak out.” Given these circumstances—and the

compelling need to protect the health and safety of the children—we believe limited

visitation was wholly justified. See id. (placing “emphasis on the health and safety”

of children when considering reasonable efforts).

        The father also claims DHS improperly limited his visitation.       Like the

mother, the father made strides over the course of this case, attending therapy and

addressing his substance-abuse issues. At the same time, DHS was well aware

of his history of regressing. For example, when Je.C. and M.C. were placed in his

care following a prior CINA case, the father began using methamphetamine within

about two months. We will not require DHS to ignore its long history of involvement

with this family. Moreover, after the father received an additional visitation per

week, he bit M.C. The bite was not gentle—it left marks. Given this sort of conduct,

we cannot fault DHS for limiting the father’s visitation.

        In short, although DHS made reasonable efforts toward reunification, the

children could not be safely returned to the mother or the father. A statutory ground

for termination has been established. The first step of our analysis is complete.

        2. Best-Interest Framework

        Our next step is to consider the best-interest framework set forth in section

232.116(2). A.S., 906 N.W.2d at 473. Section 232.116(2) provides in relevant

part:
                                          10


              In considering whether to terminate the rights of a parent
       under this section, the court shall 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.

See Iowa Code § 232.116(2)(a), (b), (c) (identifying factors that may be relevant to

the court’s best-interest analysis).

       Applying this framework here, we look to this family’s past for indicators of

what is likely to occur in the future. See In re J.E., 723 N.W.2d 793, 798 (Iowa

2006) (“When making this decision, we look to the parents’ past performance

because it may indicate the quality of care the parent is capable of providing in the

future.” (quoting In re C.K., 558 N.W.2d 170, 172 (Iowa 1997))). We find neither

parent has been able to provide their respective children with a safe and stable

home. The children need and deserve permanency and stability that these parents

have not been able to provide. Termination is in the children’s best interests. See

A.B., 815 N.W.2d at 777–78. The second step of our analysis is complete.

       3. Exceptions

       Finally, we consider section 232.116(3), which provides as follows:

               The court need not terminate the relationship between the
       parent and child if the court finds any of the following:
               (a) A relative has legal custody of the child.
               (b) The child is over ten years of age and objects to the
       termination.
               (c) There is clear and convincing evidence that the termination
       would be detrimental to the child at the time due to the closeness of
       the parent-child relationship.
               (d) It is necessary to place the child in a hospital, facility, or
       institution for care and treatment and the continuation of the parent-
       child relationship is not preventing a permanent family placement for
       the child.
               (e) The absence of a parent is due to the parent’s admission
       or commitment to any institution, hospital, or health facility or due to
       active service in the state or federal armed forces.
                                          11



          “[T]he parent resisting termination bears the burden to establish an

exception to termination” under section 232.116(3). A.S., 906 N.W.2d at 476. If

the parent proves an exception, this court may conclude termination is

inappropriate. Id. We are not, however, required to reach that conclusion. In re

A.M., 843 N.W.2d 100, 113 (Iowa 2014). Rather, we exercise our discretion

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

child” to determine whether the parent-child relationship should be saved. Id.

(quoting In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App. 2011)).

          The father does not assert any exception applies. The mother, however,

argues the strength of the parent-child bond should preclude termination pursuant

to section 232.116(3)(c). We disagree. Jo.C. testified he did not want to have any

contact with his mother. Je.C. and M.C. are fearful of the mother. While there is

evidence they love their mother, nothing suggests their bond with her is strong

enough to overcome her parenting deficiencies. See In re D.W., 791 N.W.2d 703,

709 (Iowa 2010) (“[O]ur consideration must center on whether the child will be

disadvantaged by termination, and whether the disadvantage overcomes [the

parent]’s inability to provide for [the children]’s developing needs.”). The final step

of our analysis is complete.

IV. Conclusion

          The juvenile court properly terminated the mother and the father’s parental

rights.

          AFFIRMED ON BOTH APPEALS.
