                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-2073
                               Filed March 7, 2018


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

SHANNON M. LEIGHTY, guardian ad litem,
    Appellant.


      Appeal from the Iowa District Court for Story County, Stephen A. Owen,

District Associate Judge.



       A guardian ad litem appeals the denial of termination-of-parental-rights

petitions concerning three children.    AFFIRMED IN PART, REVERSED IN

PART, AND REMANDED.



      Shannon M. Leighty of the Public Defender’s Office, Nevada, appellant.

      Patrick C. Peters of Payer, Hunziker, Rhodes & Peters, LLP, Ames, for

appellee father.

      Daniela Matasovic of Matasovic Law Firm, Ames, for appellee mother.

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

General, for appellee State.




      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, Judge.

       A guardian ad litem1 appeals the denial of termination-of-parental-rights

(TPR) petitions concerning three children, L.M., B.M., and J.M., born in 2013,

2014, and 2017, respectively.       She contends the juvenile court erred in not

terminating the parents’ parental rights as to all three children pursuant to Iowa

Code section 232.116(1)(b), (e), and (l) (2017). She also argues the court erred

in concluding termination of the parents’ parental rights as to the youngest child,

J.M., under section 232.116(1)(h) was not in the child’s best interests.2

I.     Background Facts and Proceedings

       The parents and children came to the attention of the Iowa Department of

Human Services (DHS) in February 2017 when the mother visited the hospital

and tested positive for methamphetamine (meth). The State also alleged that

both parents cared for the two older children while under the influence of meth.

Shortly thereafter, the mother gave birth to the youngest of the three children and

both she and the child tested positive for meth. The mother also tested positive

for amphetamines and opiates. In March, the parents stipulated to removal and

the children were adjudicated children in need of assistance (CINA).

       In April, DHS recommended both parents undergo substance-abuse and

mental-health treatment. The father began inpatient substance-abuse treatment

but left after a few days. He began outpatient treatment in May, but he did not

attend his sessions consistently. He was discharged from the program in July for

lack of attendance, having attended only one group session and no individual

1
   The guardian ad litem is also designated as the children’s attorney.
2
   The State has filed a statement to the court noting its agreement with the guardian ad
litem’s petition on appeal.
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sessions.   The mother also began inpatient substance-abuse treatment, but she

left the program after about a week.         The mother’s subsequent attempts to

complete an inpatient treatment program were unsuccessful.         Neither parent

obtained    mental-health   treatment.         Neither   parent   heeded    DHS’s

recommendation to attend parenting classes.

      The father was arrested in Iowa on or about July 19 and was subsequently

extradited to Georgia, having had his probation on a charge of credit card fraud

revoked in response to his failure of drug tests. His tentative release date was

January 18, 2018. His release would be followed by three years of probation,

which he would be allowed to serve in Iowa upon his completion of a thirty-day,

inpatient-rehabilitation program following his release.    The father testified his

drug addiction has been “off and on” for the last ten years. The father has not

seen his children since the commencement of his incarceration in July.

However, in the three months leading up to the termination hearing, he talked to

the two older children almost once a week via phone.

      In September, the mother moved from Iowa to Georgia to live with her

parents. She testified she made the move because she has no support system

in Iowa to help her stay clean. Since the move to Georgia, the mother has not

had any contact with the children, but she has text messaged their foster

placements “to ask how they were.” A home study was done on the mother’s

parents’ home, but the Georgia Division of Family and Children Services

concluded the home was not a suitable placement for the children, citing a

number of concerns. At the time of the termination hearing, the mother was not

engaged in any substance-abuse treatment but had plans to start outpatient
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treatment in the coming months. She testified she had not used since moving to

Georgia.

        Both parents were honest with DHS about their drug use throughout the

case, which was continuous before the father’s incarceration in July and the

mother’s move to Georgia in September. Before the father’s incarceration and

the mother’s move to Georgia, their visitations with the children were sporadic

and the longest period of sobriety either parent was able to attain was eleven

days.    The parents have not provided any financial support to the children

throughout the case. The parents seem to plan to return to Iowa and resume

their relationship upon the father’s release from jail. Both parents recognize that

they each trigger the other’s drug use.

        Since being placed with their current foster parents, the two older

children’s behavior has improved, especially since the discontinuance of visits

with their biological parents. The children have become integrated into the foster

home and are bonded with their foster parents. The youngest child has been

placed with her foster mother since she was one month old; the child has a

strong bond with her foster mother. Both homes the children are residing in are

pre-adoptive placements. There is no bond between the two older children and

the youngest child due to lack of meaningful contact. It is undisputed that the

parents care deeply for all three children. However, the parents’ bond with the

children appears to have slightly decreased as the case has progressed.

        The State filed termination petitions as to all three children. Following a

hearing in November, the juvenile court denied the State’s petitions. The court

concluded clear and convincing evidence did not support termination under Iowa
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Code section 232.116(1)(b) because the father’s incarceration and the mother’s

move to Georgia to obtain sobriety did not amount to intentional acts to abandon

or desert the children. As to section 232.116(1)(e), the court concluded clear and

convincing evidence did not support a finding that the parents have not

maintained significant and meaningful contact with the children during the

previous six months. The court also concluded clear and convincing evidence

did not support termination under section 232.116(1)(l) because the opinions

offered by expert witnesses as to each parent’s prognosis were stale, having

been formulated several months before the termination hearing and not

reexamined in light of the parents’ recent sobriety. Next, the court concluded the

State established clear and convincing evidence to support termination under

section 232.116(1)(h) as to J.M. but found it was in the child’s best interests to

allow the parents an additional six months to work toward reunification. Finally,

the court stated its conclusion that, even if it had found clear and convincing

evidence to terminate parental rights as to the two older children, it was still in

those children’s best interests to allow the parents an additional six months to

work toward reunification.

      As noted, the guardian ad litem appeals.

II.   Standard of Review

      Appellate review of TPR proceedings is de novo. In re A.S., ___ N.W.2d

___, ___, 2018 WL 480373, at *4 (Iowa 2018) (quoting In re A.M., 843 N.W.2d

100, 110 (Iowa 2014)). “We are not bound by the juvenile court’s findings of fact,

but we do give them weight, especially in assessing the credibility of witnesses.”
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Id. (quoting A.M., 843 N.W.2d at 110). Our primary consideration is the best

interests of the children. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).

III.   Analysis

       The juvenile court denied the State’s petitions to terminate the parents’

parental rights to all three children under Iowa Code section 232.116(1)(b), (e),

and (l). The court alternatively concluded termination is not in the best interests

of the children.     We may reverse the juvenile court’s denial of the State’s

petitions only if we find clear and convincing evidence supports at least one of

the grounds for termination, termination is in the best interests of the child, and

no exceptions apply to preclude termination. See A.S., 2018 WL 480373, at *4

(describing three-step analysis in TPR proceedings).

       A.    Grounds for Termination

       If clear and convincing evidence supports one ground for termination, we

need not consider the others. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010).

In this case, we choose to limit our analysis to Iowa Code section 232.116(1)(e),

which allows the juvenile court to terminate parental rights where: (1) the child

has been adjudicated a CINA; (2) the child has been removed from the physical

custody of the parents for a period of at least six consecutive months; and (3)

there is clear and convincing evidence that the parents have not maintained

significant and meaningful contact with the child during the previous six

consecutive months and have made no reasonable efforts to resume care of the

child despite being given the opportunity to do so.

       The State’s establishment of the first two elements is undisputed. As to

the third element,
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       “significant and meaningful contact” includes but is not limited to the
       affirmative assumption by the parents of the duties encompassed
       by the role of being a parent. This affirmative duty, in addition to
       financial obligations, requires continued interest in the child, a
       genuine effort to complete the responsibilities prescribed in the
       case permanency plan, a genuine effort to maintain communication
       with the child, and requires that the parents establish and maintain
       a place of importance in the child’s life.

Iowa Code § 232.116(1)(e)(3).

       It is undisputed that, in the six months leading up to the termination

hearing, the parents provided no financial support to the children. Obviously, the

father’s incarceration limited his ability to provide financial support to his children,

but he failed to provide financial support to the children even before his

incarceration, as did the mother during the entire six-month period. Rather than

provide financial support to their children, it appears the parents directed any and

all of their resources at fueling their drug addictions.

       On September 12, 2017, the juvenile court held a hearing and in its

permanency order made these findings:

               Both parents attempted inpatient substance abuse treatment
       but left after only a couple of weeks. There is also a history of
       domestic violence in the family. Since May the parents have been
       offered 38 opportunities to visit with the children but have only
       visited 13 times. In July the parents attended one visit together and
       the father attended one visit alone. In August the mother visited
       with the children one time. The parents sold their vehicle in order
       to obtain money to purchase drugs rather than support their
       children. The children remain placed in foster care.
               The parents have been offered a multitude of services to
       address drug abuse and housing instability. They have been
       uncooperative with services and have not visited with their children.
       In July and August of 2017 they visited with the children a grand
       total of three times. The father has been extradited to the state of
       Georgia to face criminal charges. The behavior of the older two
       children declined significantly between visitations as a result of the
       parents’ inconsistent contact and visitation with the children. The
       parents in attentiveness to visitation [leads] the court to conclude
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       that they continue to neglect their children. Services are needed for
       [the older two children] to address emerging behaviors that are of
       growing concern.
              . . . . The parents have done absolutely nothing to cooperate
       with the case permanency plan and have instead continued their
       severe and chronic substance abuse. The court can point to no
       substantive or material progress that the parents have made, nor
       can it point to any substantial or material circumstances currently
       being experienced by the parents that would suggest an additional
       period of six months would assist in the goal of reunifying the
       children with their parents. The parents simply choose drugs and
       criminal behavior over their children leading to neglect of the
       children by the parents.

(Footnote omitted.)

       The order also directed the county attorney to institute TPR proceedings

pursuant to section 232.104(2)(c). On our de novo review of the entire record,

we agree with the findings of the juvenile court through the time of the

permanency hearing and incorporate them as our own.            So, our analysis of

section 232.116(1)(e) now focuses on what, if anything, changed between the

September 12 permanency hearing and the November 28 termination hearing.

       Although the parents have, as the juvenile court characterized in its order

denying the termination of parental rights, demonstrated a “continuing interest” in

the children, section 232.116(1)(e)(3) requires more than “interest.” At the time

of the termination hearing, the mother had not had any direct contact with any of

the children for more than two months; that is, since the permanency hearing.

Her texts to the foster parents showed some “interest” in the children, but she

made no efforts to contact the children. Even when she came to Iowa for the

termination hearing, she had made no prior arrangements to see her children. At

the hearing she testified, “Hopefully . . . I can get a visit with the kids,” but she

later said: “I don’t know what I should do, because I miss them. And I haven’t
                                         9


seen them in months, but if I see them, then I’ll hurt them more, and I’ll be hurting

myself.” The father had not seen his children since the commencement of his

incarceration, but in the three months leading up to the termination hearing, he

talked to the two older children almost once a week via phone. The parents’

contact with the children in the six months leading up to the termination hearing

can hardly be described as significant and meaningful. See In re D.W., No. 17-

0281, 2017 WL 1735934, at *3 (Iowa Ct. App. May 3, 2017) (“‘Significant and

meaningful contact’ is defined as more than just visitation, it requires ‘a genuine

effort to complete the responsibilities’ set forth in the case permanency plan, to

communicate with the child, and to ‘establish and maintain a place of importance

in the child’s life.’” (quoting Iowa Code § 232.116(1)(e)(3))); In re T.B.V., No. 08-

1222, 2008 WL 4531554, at *2 (Iowa Ct. App. Oct. 1, 2008) (“[S]ection

232.116(1)(e) requires more than the minimum efforts . . . to maintain significant

and meaningful contact.”).

       It was not until the parents found themselves in controlled environments,

the father in jail in Georgia and the mother living with her parents in Georgia, that

the parents exhibited any form of compliance with the case permanency plan,

including showing an interest in their children. We recognize that, as a result of

their controlled environments, both parents were experiencing a period of

sobriety in the months leading up to the termination hearing. But parents cannot

wait until the eve of termination to begin to express an interest in parenting. In re

C.B., 611 N.W.2d 489, 495 (Iowa 2001).

       Based on the foregoing, we conclude clear and convincing evidence exists

to support termination of the parents’ parental rights as to all three children under
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Iowa Code section 232.116(1)(e), and reverse the juvenile court on this ground.

We agree with the juvenile court that clear and convincing evidence supports

termination of the parents’ parental rights as to the youngest child under section

232.116(1)(h).

       B.     Best Interests and Statutory Exceptions

       “If we determine ‘that a ground for termination has been established, then

we determine whether the best-interest framework as laid out in section

232.116(2) supports the termination of parental rights.’” A.S., 2018 WL 480373,

at *4 (quoting In re M.W., 876 N.W.2d 212, 219–20 (Iowa 2016)). In considering

whether termination is in a child’s best interests, we “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.” Iowa Code § 232.116(2).

       It is undisputed that both parents share a strong bond with the two older

children and that the severance of those bonds may be difficult for the children.

The bond between the youngest child and the parents is more limited given the

child’s young age coupled with the fact the child has been removed from the

physical custody of her parents for most of her life. In its lengthy findings on the

best-interests issue, the juvenile court provided these findings and analysis:

               The CINA proceedings are less than one year old and in fact
       only began about nine months ago in late February 2017. A
       dispositional order entered a mere six months prior to the hearing
       on the termination of parental rights. As shown by her date of birth
       on the petition, the mother is only 23 years of age. Her drug
       problems commenced when she was but 14 years of age. The
       father is 29 years of age as shown by his date of birth on the
       petitions and his drug problems commenced approximate[ly] seven
       years ago when he was 22 years of age. The parents have drug
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abuse problems that are years in the making. It is unreasonable to
think that those problems would be completely addressed within six
months. Consequently it is unreasonable to conclude that their
parental rights should be terminated in the absence of an
appropriate opportunity to meet the case plan goals in a reasonable
amount of time under the circumstances. The children deserve
permanency but also deserve an opportunity to have a life with their
parents. [It is i]n the children’s best interest to continue the
permanency order for an additional period of six months in order to
provide the parents an opportunity to reunify with their children [by]
attaining sobriety and stability.
        The parents are in the early stages of attaining sobriety and
stability. Although it has come about through his arrest and
incarceration, the father has now been attend[ing] to his mental
health needs and is receiving medication management and
psychotherapy. He is now in the longest period of sobriety known
to this court and has testified credibly to the clarity of mind he now
is possessed of and the recognition of the goals he must attain in
order to reunify with his children. He has attained such a great
degree of stability that he recognizes the codependent relationship
he has with [the mother] and now appropriately identifies additional
services to include individual and family therapy to assist them in
their relationship—a factor and service as yet unrecognized by the
court and Iowa DHS in fashioning reasonable efforts. The court
finds the father has identified an additional reasonable effort that
should be provided and then an additional period of six months
should be permitted in order to provide a reasonable opportunity for
[the father] and [the mother] to engage in appropriate therapy to
explore, address and treat their codependent marital relationship.
        [The mother] too is in the early stages of attaining sobriety
and stability. She [has] found current although temporary stability
in the home of her parents. Here she has their support and access
to private insurance which will assist her in accessing appropriate
substance abuse treatment. Although consequential, her decision
to leave the state of Iowa was not reasonable under the totality of
her circumstances. In fact it could be viewed as the first step in
breaking a cycle of chronic, severe and tragic drug addiction. The
FSRP worker reported that [the father] believed his wife was trading
sexual favors for drugs. [The mother] admitted to residing in the
home with persons supplying her with drugs before she left the
state of Iowa.       Both [the mother] and [the father] have a
demonstrated history of nearly complete honesty when reporting
their drug activities and therefore this court concludes that [the
mother] is not only the victim of severe and chronic substance
abuse but likely a victim traumatized by the collateral effects of
sexual abuse related to her drug abuse and of those who would
prey upon her vulnerabilities.
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               . . . . While the children have developed a close relationship
       with [the] foster parents, the court cannot conclude that given the
       history of the bond between the older children and their parents,
       that the parent-child bond between the . . . children and their
       parents has been destroyed beyond the possibility of repair. [J.M.]
       is less than the one year of age and because she has been in the
       care and custody of a devoted and loving foster mother, she does
       not suffer the harmful effects of neglect in the very earliest and
       critical stages of her life. Consequently the real possibility of
       developing an appropriate and close parent-child bond with her
       biological parents continues to exist.

       Problematic is the parents’ chosen course of conduct since DHS initially

became involved in these children’s lives.      These parents have been given

multiple opportunities to put their children first and obtain and maintain sobriety.

The parents were unable to obtain sobriety until they were physically separated

by the father’s incarceration and the mother leaving Iowa, where she is

admittedly unable to stay clean. The record reveals, however, upon the father’s

release the parents are likely to resume their relationship and return to Iowa.

“We hold no crystal ball, and to some extent, the [best-interests] determination

must be made upon past conduct.” In re M.M., No. 16-1685, 2016 WL 7395788,

at *4 (Iowa Ct. App. Dec. 21, 2016). “It is well-settled law that we cannot deprive

a child of permanency after the State has proved a ground for termination under

section 232.116(1) by hoping someday a parent will learn to be a parent and be

able to provide a stable home for the child.” In re A.B., 815 N.W.2d 764, 777

(Iowa 2012) (quoting In re P.L., 778 N.W.2d 33, 41 (Iowa 2010)). “[A]t some

point, the rights and needs of the children rise above the rights and needs of the

parent.” In re C.S., 776 N.W.2d 297, 300 (Iowa Ct. App. 2009).

       At the same time, we recognize that juvenile court is premised on a belief

that rehabilitation is possible. Juvenile court judges and appellate courts do their
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best to predict the future, taking into account the past and present. Given the

relatively short period of DHS involvement and supervision in this case and the

juvenile court’s extensive credibility findings and careful analysis of the

particulars of this case, we do not find the evidence is clear and convincing that

termination would be in the best interests of the children at the time of the

termination hearing.

       Thus we affirm the juvenile court’s conclusion that it would not be in the

best interests of the children to terminate parental rights.

IV.    Conclusion

       We reverse the juvenile court’s determination that the State failed to

satisfy the statutory grounds for termination under section 232.116(1)(e), but we

affirm in all other respects. We reverse in part and remand the case to the

juvenile court for further proceedings in accordance with this opinion.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
