                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0750
                               Filed August 2, 2017


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

J.S., Mother,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,

District Associate Judge.



      Mother appeals from an order terminating her parental rights issued

pursuant to Iowa Code chapter 232 (2016). AFFIRMED.



      Magdalena Reese of Cooper, Goedicke, Reimer, & Reese, P.C., West

Des Moines, for appellant mother.

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

General, for appellee State.

      Erin M. Hardisty of Youth Law Center, Des Moines, guardian ad litem for

minor children.



      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
                                          2


MCDONALD, Judge.

       The juvenile court terminated Julie’s parental rights in her two children

pursuant to Iowa Code section 232.116(1)(h) (2016).          In this appeal, Julie

challenges the sufficiency of the evidence supporting the termination of her

parental rights, contends she should be given more time to reunify with her

children, challenges whether termination of her parental rights was in the best

interest of the children, and contends permissive considerations should preclude

the termination of her parental rights.

                                          I.

       Termination-of-parental-rights proceedings are reviewed de novo. In re

A.M., 843 N.W.2d 100, 110 (Iowa 2014).          The statutory framework is well

established. Pursuant to section 232.116(1), the State must prove a statutory

ground authorizing the termination of a parent’s rights.     See In re P.L., 778

N.W.2d 33, 39 (Iowa 2010). Second, pursuant to section 232.116(2), the State

must prove termination of parental rights is in the best interest of the child. See

id.   Third, if the State has proved both the existence of statutory harm and

termination of a parent’s rights is in the best interest of the child, the juvenile

court must consider whether any countervailing considerations set forth in

section 232.116(3) should nonetheless preclude termination of parental rights.

See id. These countervailing considerations are permissive, not mandatory. See

A.M., 843 N.W.2d at 113.        “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 this section to save the parent-child relationship.” In re D.S., 806
                                        3

N.W.2d 458, 475 (Iowa Ct. App. 2011) (citing In re C.L.H., 500 N.W.2d 449, 454

(Iowa Ct. App. 1993)).

                                        II.

                                        A.

      Julie challenges the sufficiency of the evidence supporting the termination

of her parental rights pursuant to section 232.116(1)(h). Under this provision, the

State must prove by clear and convincing evidence for each child:

      (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.
Iowa Code § 232.116(1)(h). The first three elements are not disputed here.

      Under the fourth element, a child cannot be returned to a parent if the

child would remain a child in need of assistance or would be exposed to harm

amounting to a new child-in-need-of-assistance adjudication. See In re M.M.,

483 N.W.2d 812, 814 (Iowa 1992). “We have interpreted this to require clear and

convincing evidence the children would be exposed to an appreciable risk of

adjudicatory harm if returned to the parent’s custody at the time of the

termination hearing.” In re E.H., No. 17-0615, 2017 WL 2684420, at *1 (Iowa Ct.

App. June 21, 2017).

      The record establishes the following. Julie is the mother of J.C. and J.S.

The family initially came to the attention of the Iowa Department of Human
                                        4


Services (IDHS) when then two-year-old J.C. was found wandering outside of the

family’s apartment building without supervision. At that time, Julie and J.C. were

living with J.C.’s father. J.S. had not yet been born. In addition to concerns

regarding supervision, IDHS also had concerns regarding domestic violence in

the home. Near the time of IDHS’s intervention with this family, J.C.’s father was

arrested for domestic abuse against Julie arising out of an incident in which he

struck Julie with a sawed-off shotgun, pointed the shotgun at Julie, and

threatened to kill her. J.C. was present during this incident. Julie admitted this

was not an isolated incident.    IDHS also had concerns regarding substance

abuse in the home. IDHS decided to remove J.C. from the home. When J.C.

was removed from the home he tested positive for methamphetamine and

ecstasy. IDHS placed J.C. with his paternal aunt and uncle.

      At the time of removal, it was apparent J.C. had suffered significant

neglect and trauma.      J.C. was nonverbal and demonstrated no language

development, communicating by grunting. J.C. demonstrated aggression and

violence. J.C. also engaged in odd behaviors. J.C. made cat-like noises, such

as hissing and purring, to communicate with others. He also would only sleep on

the arm of the sofa and eat from a bowl on the floor.

      Julie became pregnant with J.S. around September 2015. Julie tested

positive for methamphetamine in March 2016. She claimed the test reflected

secondary contact with methamphetamine because she was living with an active

methamphetamine user.       Julie gave birth to J.S. in May 2016, and he was

immediately removed from her care. The father of J.S. is unknown. Julie could
                                         5


not remember enough information regarding the potential father for him to be

identified.

       In August 2016, Julie entered Clearview, a residential treatment facility.

Up to this point in time, Julie had denied any mental-health concerns and denied

her substance abuse despite testing positive for methamphetamine.             As a

consequence, prior to entering the facility, Julie had done very little to address

the issues giving rise to the removal of her children from her care despite the fact

her case had been open for a year. The primary unaddressed issues were

Julie’s lack of employment, lack of stable housing, mental-health concerns,

substance-abuse concerns, and continued romantic involvement with criminals

and substance abusers. While at Clearview, Julie received substance-abuse

treatment and counseling to address her emotional health.

       In December 2016, the matter came on for a termination hearing. Julie

testified to her progress in the facility and her impending successful discharge

from the facility. The State requested the termination proceedings be delayed to

afford Julie the opportunity to discharge and demonstrate an ability to resume

care of her children. The termination hearing was continued to March 2017.

       By the time of the termination hearing, Julie had not made the expected

progress. She had not found (or really searched) for employment. She had not

found stable housing for her and the children but was instead living in a

transitional housing facility for the homeless.   She had not found a recovery

sponsor. She had not found a therapist. She also had continued or resumed a

relationship with an inappropriate paramour who was a known criminal and

substance abuser. Indeed, in June 2016, Julie was arrested for theft with the
                                          6


paramour.     When confronted with evidence that she had resumed this

relationship, Julie initially denied the relationship, then attempted to minimize the

contact, and then attempted to justify the contact by contending she should be

able to be involved with anyone she pleases.         She is incorrect. Sometimes

parents are forced to choose between paramours and their children. Julie chose

her paramour. See In re I.M., No. 16-0685, 2016 WL 4036256, at *1 (Iowa Ct.

App. July 27, 2016) (collecting cases considering a parent’s continued

relationship with an inappropriate paramour when terminating parental rights).

       We conclude there was sufficient evidence supporting termination of

Julie’s parental rights pursuant to section 232.166(1)(h). First, Julie failed to take

any meaningful action to address the causes of removal for almost one year. “[A]

parent’s last-minute rush to address longstanding-unaddressed concerns is

insufficient to preclude the termination of parental rights.” In re K.G., No. 17-

0347, 2017 WL 2189768, at *3 (Iowa Ct. App. May 17, 2017); see In re A.E., No.

16-0510, 2016 WL 3271887, at *3 (Iowa Ct. App. June 15, 2016) (“After

sleepwalking through the first three quarters of this case, Maranda’s furious

fourth-quarter rally falls short.”); In re D.R., No. 15-1968, 2016 WL 1129385, at *4

(Iowa Ct. App. Mar. 23, 2016) (affirming termination where “mother’s late

progress in the case did not begin until after the State filed its petition seeking

termination of parental rights”); In re A.D., No. 15-1508, 2016 WL 902953, at *2

(Iowa Ct. App. Mar. 9, 2016) (“Iowa courts look skeptically at ‘last-minute’

attempts to address longstanding issues, finding them inadequate to preclude

termination of parental rights.”); In re I.V., No. 15-0608, 2015 WL 4486237, at *2–

3 (Iowa Ct. App. July 22, 2015) (holding “last-minute” use of services for litigation
                                         7


purposes was insufficient to demonstrate the child could be returned to the

mother’s care). It is well-established that “[a] parent 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 2000).

       Second, Julie’s late attempts to address her substance abuse fall short.

While Julie did complete treatment at the substance-abuse facility, her conduct

after discharge demonstrated she is unable to implement the strategies and life

skills taught at Clearview. See In re A.B., 815 N.W.2d 764, 776 (Iowa 2012)

(noting drug addiction can render a parent unable to care for children); In re R.P.,

No. 16-1154, 2016 WL 4544426, at *2 (Iowa Ct. App. Aug. 31, 2016) (affirming

termination of parental rights of parent with history of drug abuse); In re H.L., No.

14-0708, 2014 WL 3513262, at *4 (Iowa Ct. App. July 16, 2014) (affirming

termination of parental rights when parent had history of substance abuse). Most

concerning, Julie has repeatedly attempted to evade accountability for her drug

abuse and its impact on the children. See In re M.W., 876 N.W.2d 212, 223

(Iowa 2016) (considering inability to accept responsibility for circumstances

relating to removal of children when determining if children can be returned to

parent’s care).

       Julie continued her relationship with her paramour contrary to IDHS’s

instructions.     Julie’s continued relationship with her paramour creates an

appreciable risk of harm to the children in two respects. First, the paramour is a

known substance abuser. Continued association with him increases the chances

the children will be exposed to controlled substances and increases the chances

Julie will relapse. Second, the paramour creates a risk of exposure to violence
                                        8


and criminal activity.     Julie’s continued involvement in this relationship

demonstrates her inability to avoid perilous situations and protect her children.

See In re K.C., No. 10-1522, 2010 WL 5050710, at *5 (Iowa Ct. App. Dec. 8,

2010) (“The dangers and risks to children as a result of being around drugs and

drug users can hardly be understated.”); In re S.T., No. 07-2130, 2008 WL

375424, at *1 (Iowa Ct. App. Feb. 13, 2008) (noting mother’s continued

association with “violent, drug abusing people” would put child at risk if returned

to mother’s care); In re M.R.H., No. 07-0031, 2007 WL 601843, at *2 (Iowa Ct.

App. Feb. 28, 2007) (considering mother’s continued choice to associate with

drug abusers and her dishonesty regarding her relationships with them).

      Julie cannot provide for the basic physical needs of her children. At the

time of the termination hearing, she lacked employment and stable housing. See

In re M.T., No. 03-1417, 2003 WL 22346539, at *2 (Iowa Ct. App. Oct. 15, 2003)

(considering mother’s inability to find employment or stable housing when

determining children could not be returned to her care); In re K.H., No. 03-0671,

2003 WL 21459582, at *2 (Iowa Ct. App. June 25, 2003) (concluding the children

would be at a continued risk for harm when the father did not have stable

employment or housing).; In re B.T., No. 01-0920, 2002 WL 985533, at *1 (Iowa

Ct. App. May 15, 2002) (noting mother only secured stable housing shortly

before termination hearing and only had a job for three months prior).

      Finally, Julie has not demonstrated an ability to provide for the mental and

emotional needs of her children. While J.C. was in her care, he had not obtained

basic language skills, and he demonstrated inappropriate behaviors. Throughout
                                          9


the life of the case, Julie has not demonstrated any appreciation for the needs of

her children as compared to her own wants and desires.

       It is clear the children could not be returned to Julie’s care at the time of

the termination hearing. We reject Julie’s challenge to the sufficiency of the

evidence supporting the statutory ground authorizing the termination of her

parental rights.

                                         B.

       Julie argues IDHS failed to make reasonable efforts to reunify her with the

children. She contends IDHS failed to provide an adequate number of visitation

sessions, failed to provide timely semi-supervised and unsupervised contact, and

failed to provide transportation assistance. As part of its ultimate proof, the State

must establish it made reasonable efforts to return the child to the child's home.

See Iowa Code § 232.102(9) (providing department of human services must

make “every reasonable effort to return the child to the child’s home as quickly as

possible consistent with the best interests of the child”). “[T]he reasonable efforts

requirement is not viewed as a strict substantive requirement of termination.

Instead, the scope of the efforts by the [department of human services] to reunify

parent and child after removal impacts the burden of proving those elements of

termination which require reunification efforts.” C.B., 611 N.W.2d at 493. The

core of the mandate is the child welfare agency must make reasonable efforts to

“facilitate reunification while protecting the child from the harm responsible for the

removal.” See In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App. 1996). The

nature of the reasonable efforts mandate is determined by the circumstances of

each case. See C.B., 611 N.W.2d at 493.
                                            10


       On de novo review, we conclude the State made reasonable efforts to

reunify the family under the circumstances. When Julie entered the residential

treatment facility, the department did decrease the number of visits with J.C. and

changed the visits from semi-supervised to supervised. The change in visitation

was a reasonable response to the change in location and to J.C.’s regressive

behaviors.   Specifically, J.C. began to demonstrate negative behaviors when

visitation was held at the facility. The juvenile court took note of this and directed

visitation be increased as J.C. became accustomed to the new visitation

schedule and stopped demonstrating inappropriate behaviors. This eventually

occurred.    The adjustment to Julie’s visitation schedule in response to her

changed circumstances does not establish the State failed to make reasonable

efforts. In addition to appropriate visitation, IDHS offered Julie a variety of other

services, including:   a CINA assessment; IDHS case management services;

visitation; Family Safety, Risk, and Permanency services; family team meetings;

family peer support; child-parent psychotherapy; relative placement; drug testing;

substance-abuse treatment; mental-health therapy; domestic violence services;

gas cards; gift cards; bus passes; and housing assistance. The State made

reasonable efforts to reunify the family.

                                            C.

       Julie posits the children could have been returned to her care had the

juvenile court granted her a six-month extension of time as permitted by Iowa

Code section 232.104(2)(b). Under Iowa Code section 232.104(2)(b), the court

may enter an order continuing placement of the children upon a finding the need

for the children’s removal will no longer exist at the end of the additional six-
                                        11


month period. The court must “enumerate the specific factors, conditions, or

expected behavioral changes which comprise the basis for the determination” the

need for removal will no longer exist at the end the extension.        Iowa Code

§ 232.104(2)(b). Like the district court, we cannot conclude the need for removal

would have abated if Julie would have had an additional six months’ time. Julie

has a history of methamphetamine abuse and involvement with criminals,

substance abusers, and domestic abusers.          Rather than taking action to

meaningfully address the causes of removal, Julie has denied, deflected, and

attempted to justify her conduct. In addition, the juvenile court already granted

Julie a three-month reprieve in these proceedings to allow Julie more time to

demonstrate progress in addressing the issues giving rise to removal. She failed

to do so. “What’s past is prologue.” In re K.F., No. 14-0892, 2014 WL 4635463,

at *4 (Iowa Ct. App. Sept. 17, 2014).

                                        D.

      Julie challenges the juvenile court’s determination termination of her

parental rights is in the children’s best interest. She cites her strong bond with

the children and testimony from IDHS workers about her improved interactions

with the children. “When considering a child’s best interest[ ], 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.’” In re M.T., No. 14-2133, 2015 WL 1055518, at

*2 (Iowa Ct. App. Mar. 11, 2015). When determining best interest, it is important

to consider both long-term and short-term interest. See In re J.E., 723 N.W.2d
                                           12


793, 798 (Iowa 2008). To gain insight on what the future may bring, the parent’s

past actions may be reviewed. See id.

       We conclude the State proved by clear and convincing evidence that

termination of Julie’s parental rights is in the best interest of the children. First,

Julie overstates the strength of her bond with the children. J.C. was removed

from Julie’s care while a toddler and J.S. was removed at the time of birth. She

thus had little time to build any significant bond with the children. In addition,

while J.C. was in her care, Julie failed to provide adequate care to the child. She

had difficulty meeting the child’s most basic needs, and she exposed the child to

domestic violence and drugs. The child suffered while in her care. As noted

above, at the time of removal, the child had not developed basic language skills

and demonstrated odd behaviors. In contrast, the children are thriving in their

current placements. J.C.’s aunt and uncle have been able to address his unique

emotional and developmental challenges. J.S. is also progressing well in his

current foster care placement. J.C. and J.S. deserve permanency with parents

that are able to meet their needs. See In re D.W., 791 N.W.2d 703, 707 (Iowa

2010) (“We do not ‘gamble with the children’s future’ by asking them to

continuously wait for a stable biological parent, particularly at such tender ages.”

(quoting In re D.W., 385 N.W.2d 570, 578, (Iowa 1986))). Termination of Julie’s

parental rights is in the children’s best interest.

                                           E.

       Julie argues statutory exceptions in Iowa Code section 232.116(3) are

applicable and the court need not terminate her rights. She notes J.C. is in the

custody of his paternal aunt, making Iowa Code section 232.116(3)(a) applicable
                                        13


to J.C. She also argues termination would be detrimental to the children due to

the closeness of her relationship with them, making Iowa Code section

232.116(3)(c) applicable to both children. These provisions are permissive and

not mandatory. See In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997),

overruled on other grounds by P.L., 778 N.W.2d at 39–40.

      Under the circumstances, we see no benefit to maintaining the parent-

child relationship that would warrant exercising the permissive exceptions to

termination of Julie’s parental rights. Julie lacks a significant parental bond with

the children. She cannot provide for their basic needs. She cannot keep them

safe. They are thriving in their present placements. There is no evidence the

children would suffer by having no further contact with their mother.

                                        III.

      We affirm the termination of Julie’s parental rights in J.C. and J.S.

      AFFIRMED.
