                     IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1004
                            Filed September 13, 2017


IN THE INTEREST OF Z.R.,
Minor Child,

C.R., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Pottawattamie County, Craig M.

Dreismeier, District Associate Judge.



       The mother appeals from an order terminating her parental rights pursuant

to Iowa Code chapter 232 (2017). AFFIRMED.



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

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

Attorney General, for appellee State.

       Roberta J. Megel of State Public Defender Office, Council Bluffs, guardian

ad litem for minor child.



       Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.

       The juvenile court terminated Chelsea’s parental rights in her child, Z.R.,

pursuant to Iowa Code section 232.116(1)(e), (h), and (l) (2017). In this appeal,

Chelsea challenges the sufficiency of the evidence supporting the statutory

grounds authorizing termination of her parental rights, argues the State failed to

make reasonable efforts towards reunification, challenges the denial of her

request to defer permanency for six months, challenges the determination that

termination of her parental rights was in the best interest of her child, and

contends permissive considerations should preclude the termination of her

parental rights.

                                        I.

       Chelsea is the biological mother of three children, J.M. (born 2005), L.S.

(born 2009), and Z.R. (born 2015), and she is pregnant with a fourth child. She

is married to Z.R.’s father, Justin.

       This family has a history of involvement with the Iowa Department of

Human Services (IDHS). In 2014, prior to Z.R.’s birth, an assistance proceeding

was opened when IDHS became aware Chelsea was using methamphetamine.

J.M. and L.S. were removed from her care for a period of time. Ultimately, the

case was closed, and J.M. and L.S. were returned to Chelsea’s care.

       The instant case was initiated in October 2016. Chelsea was on probation

after being convicted of child endangerment in 2014. Chelsea’s probation officer

reported Chelsea had not been complying with drug testing. Chelsea’s probation

officer also confirmed the one test Chelsea had provided showed a positive result

for methamphetamine.        Based on this information, all three children were
                                        3


removed from Chelsea’s care. The juvenile court placed J.M. and L.S. with their

respective biological fathers.1     Upon removal, Z.R. tested positive for

amphetamine, methamphetamine, opiates, and THC. The juvenile court placed

Z.R. in foster care under the custody of IDHS. Chelsea was ordered to complete

a substance-abuse evaluation, mental-health evaluation, sign a medical records

release, and complete random drug screens.

      Chelsea made little progress in the months following removal.           The

children were adjudicated in need of assistance in December 2016. At that time,

Chelsea had not yet completed a substance-abuse or mental-health evaluation.

She denied she needed substance-abuse treatment. She had not complied with

many of IDHS’s drug-test requests. The tests she did complete showed positive

results for THC, methamphetamine, and opiates. At the time of the dispositional

order in January 2017, Chelsea had completed her substance-abuse evaluation,

but she refused to comply with substance-abuse treatment recommendations.

She continued to deny substance use despite testing positive for controlled

substances and despite Chelsea’s probation officer providing information

showing Chelsea had received six different opiate prescriptions from three

doctors the prior September.

      February and March were no better than December and January.

Chelsea had not yet obtained a mental-health evaluation.           She had not

completed substance-abuse treatment. She continued to deny substance use,

claiming her positive test results were false positives or were the result of


1
  Both biological fathers were later given sole legal custody and physical care of
their respective children.
                                           4


involuntary or unknowing ingestion of controlled substances. For example, she

contended unbeknownst to her someone put methamphetamine in a glass from

which she was drinking.        She was incarcerated for two separate probation

violations.   The first period of incarceration lasted a week.     On the second

occasion, Chelsea was arrested on March 9 and remained incarcerated until the

second week of April. At that time, Chelsea was transitioned to a residential

correctional facility.   Her visitation with Z.R. was sporadic at best, and IDHS

reduced visitation to once per week until Chelsea could demonstrate

consistency. Pursuant to the request of Chelsea and Z.R.’s father, Z.R. was

placed with a maternal aunt in Georgia.         The maternal aunt had indicated a

willingness to adopt Z.R. should reunification efforts fail.

       In April 2017, the State filed its petition to terminate Chelsea’s parental

rights. At around this same time, Chelsea began to show some progress. She

obtained employment. She provided some clean drug tests. Nonetheless, the

juvenile court terminated Chelsea’s rights pursuant to Iowa Code section

232.116(1)(e), (h) and (l). In support of the order terminating parental rights, the

juvenile court found Chelsea was unable to resume care of the child. Chelsea

was in a residential correctional facility at the time of the termination hearing.

She still denied methamphetamine use and the need for treatment.

                                          II.

       We review de novo proceedings terminating parental rights. See In re

A.M., 843 N.W.2d 100, 110 (Iowa 2014). Termination of parental rights follows a

familiar three-step analysis. See In re P.L., 778 N.W.2d 33, 39 (Iowa 2010).

First, the court must find that the State has proved a statutory ground for
                                        5

termination pursuant to Iowa Code section 232.116(1). See In re M.W., 876

N.W.2d 212, 219 (Iowa 2016). Second, pursuant to section 232.116(2), the State

must prove termination is in the best interest of the child. See id. at 219–20.

Finally, the court must consider whether any considerations set forth in section

232.116(3) should preclude termination. See id. at 220.

                                       A.

      We first address the sufficiency of the evidence supporting the statutory

grounds authorizing the termination of Chelsea’s parental rights. The State has

the burden to prove its case by clear and convincing evidence. See Iowa Code

§ 232.96. “Clear and convincing evidence is more than a preponderance of the

evidence and less than evidence beyond a reasonable doubt.” In re L.G., 532

N.W.2d 478, 481 (Iowa Ct. App. 1995). “It is the highest evidentiary burden in

civil cases.” In re M.S., 889 N.W.2d 675, 679 (Iowa Ct. App. 2016). “It means

there must be no serious or substantial doubt about the correctness of a

particular conclusion drawn from the evidence.” Id. Where, as here, “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).

      Pursuant to Iowa Code section 232.116(1)(h), the juvenile court may

terminate parental rights when the State has proved 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.
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              (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). Only the fourth element is in dispute here.

       Under the fourth element, a child cannot be returned to the custody of the

child’s 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 child[] 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).

       There is clear and convincing evidence Z.R. could not be returned to

Chelsea’s care without an appreciable risk of harm. Chelsea has a long history

of untreated substance abuse. Her substance abuse actively interfered with her

ability to provide adequate care for the child.    The child tested positive for

methamphetamine, amphetamine, morphine, oxymorphone, oxycodone, and

THC.   In similar circumstances, we have found severe, untreated substance

abuse to create a sufficient risk of harm to the child to warrant termination of a

parent’s rights. See, e.g., In re A.B., 815 N.W.2d at 776 (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
                                        7


parental rights when parent had history of substance abuse).        We reach the

same conclusion in this case.

                                        B.

      Chelsea challenges the efforts made to facilitate reunification with Z.R. 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.” In re C.B., 611 N.W.2d 489, 493 (Iowa 2000). 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). “[W]hat

constitutes reasonable services varies based upon the requirements of each

individual case.” In re C.H., 652 N.W.2d 144, 147 (Iowa 2002).

      Here, Chelsea generally challenges whether IDHS made reasonable

efforts to facilitate reunification with Z.R., noting the case proceeded to

termination expeditiously. Generalized complaints regarding the services offered

are inadequate to preserve a challenge to the sufficiency of the services

provided. “We have repeatedly emphasized the importance for a parent to object

to services early in the process so appropriate changes can be made.” In re
                                         8

C.B., 611 N.W.2d at 493–494. “If . . . a parent is not satisfied with [I]DHS’

response to a request for other services, the parent must come to the court and

present this challenge.”      In re C.H., 652 N.W.2d at 147; see Iowa Code §

232.99(3) (“The court shall advise the parties that failure to identify a deficiency

in services or to request additional services may preclude the party from

challenging the sufficiency of the services in a termination of parent-child

relationship proceeding.”).

       Here, Chelsea was offered substance-abuse evaluation and treatment,

mental-health evaluation, visitation services, transportation service, drug testing,

and family, safety, risk and permanency services.        IDHS offered placement

services, placing Z.R. in Georgia with a maternal aunt at Chelsea’s request. For

most of this case, Chelsea chose to deny her need for services and chose not to

use the services offered. “This is not a case in which the State failed to make

reasonable efforts; it is a case in which the mother failed to use the services

offered.” In re A.E., No. 16-0510, 2016 WL 3271887, at *2 (Iowa Ct. App. June

15, 2016).    In addition, the record reflects Chelsea never requested any

additional or different services. Her challenge to the State’s efforts thus fails.

See In re C.H., 652 N.W.2d at 148 (stating a parent must make such a challenge

“at the removal, when the case permanency plan is entered, or at later review

hearings” and voicing complaints to a social worker is not sufficient to preserve

error); In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999) (noting that while the

State has an obligation to make reasonable efforts to preserve the family, it is a

parent’s responsibility to demand other, different, or additional services in order

to preserve error).
                                        9


                                        C.

      The juvenile court declined Chelsea’s request to continue the termination

hearing and defer permanency for six months. It is unclear whether Chelsea

raises the decision denying her request to continue the hearing and the request

to defer permanency as separate issues. To the extent Chelsea contends the

denial of her request to continue the hearing, standing alone, was an abuse of

discretion, we conclude there was no abuse of discretion.       We address her

request for an additional six months’ time below.

       Pursuant to Iowa Code section 232.104(2)(b) the court may enter an

order deferring permanency for six months upon a finding the need for the child’s

removal will no longer exist at the end of the additional six-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). “The

court may look at a parent’s past performance” in determining if such a deferral

is appropriate. In re T.D.H., 344 N.W.2d 268, 269 (Iowa Ct. App. 1983). “The

judge considering [deferred permanency] should however constantly bear in

mind that, if the plan fails, all extended time must be subtracted from an already

shortened life for the child[] in a better home.” In re A.A.G., 708 N.W.2d 85, 92

(Iowa Ct. App. 2005).

       There is no basis in the record to conclude removal would no longer be

necessary at the end of an additional six-month period. Chelsea has a long

history of substance abuse, including use of opiates and methamphetamine.

She continued to deny her substance abuse despite positive test results to the
                                         10


contrary. She made little effort to comply with court orders and IDHS requests

for drug testing, substance-abuse treatment, and a mental-health evaluation until

she was transitioned into a custodial setting. “[W]e must consider the treatment

history of the parent to gauge the likelihood the parent will be in a position to

parent the child in the foreseeable future.” In re N.F., 579 N.W.2d 338, 341

(Iowa Ct. App. 1998). Chelsea’s treatment history offers little hope of future

success.

        Chelsea contends more recent history demonstrates she is amenable to

services and could be in a position to regain custody of the child if given more

time.    Specifically, she notes her improvement after being moved into the

residential treatment facility.   While her improvement is commendable, this

“fourth-quarter rally” falls short.   In re A.E., 2016 WL 3271887, at *3 (“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 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
                                        11

of termination . . . to begin to express an interest in parenting.” In re C.B., 611

N.W.2d at 495.

       In addition, Chelsea’s improvement has occurred in a custodial setting.

See In re L.C., No. 17-0922, 2017 WL 3283397, at *4–5 (Iowa Ct. App. Aug. 2,

2017) (noting the court considers whether sobriety has occurred outside a

custodial setting in making termination decisions). Where, as here, “the parent

has been unable to rise above the addiction and experience sustained sobriety

in a noncustodial setting, and establish the essential support system to maintain

sobriety, there is little hope of success in parenting.” In re N.F., 579 N.W.2d at

341.

       We affirm the district court’s decision to decline Chelsea’s request to

afford her more time. “Children simply cannot wait for responsible parenting.

Parenting . . . must be constant, responsible, and reliable.”      In re L.L., 459

N.W.2d 489, 495 (Iowa 1990).

                                        D.

       Chelsea challenges the juvenile court’s determination that termination of

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

Z.R., his relationships with his half-siblings, and a letter from the maternal aunt

stating she and her husband support more time for Chelsea to reunify with Z.R.

       There is clear and convincing evidence establishing the termination of

Chelsea’s parental rights is in the child’s best interest.          Chelsea has

demonstrated an inability to minister effectively to the social, educational, and

physical needs of the child. Indeed, her physical care of the child exposed the

child to harm. The family was living in a home in which methamphetamine was
                                           12


being manufactured.         While in Chelsea’s care, Z.R. tested positive for

amphetamine, methamphetamine, opiates, and THC. Chelsea’s probation officer

testified Chelsea’s methamphetamine use posed an active danger to the child.

There is no countervailing evidence showing the maintenance of the parent-child

relationship is in the child’s best interest.

                                            E.

       Chelsea argues other considerations warrant preserving the parent-child

relationship. Specifically, she argues termination is unnecessary because Z.R. is

in the care of a family member, his maternal aunt.               See Iowa Code

§ 232.116(3)(a).     She also argues her bond with Z.R. makes termination

detrimental to him pursuant to section 232.116(3)(c).       “The factors weighing

against termination in section 232.116(3) are permissive, not mandatory.” In re

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

       On these facts, we find no justification for preserving the parent-child

relationship. First, Z.R. is placed in the physical care of his maternal aunt but is

not in the custody of his aunt. Section 232.116(3)(a) is thus inapplicable here.

See In re A.M., 843 N.W.2d at 113. Second, the maternal aunt has requested

the child be placed elsewhere if Chelsea’s rights are terminated. In other words,

the maternal aunt no longer wishes to be considered as a placement for

adoption. Third, Z.R. is very young and has been out of Chelsea’s care for

nearly half of his life. During the time Z.R. has been removed from Chelsea’s

care, she exercised visitation only sporadically.    Z.R. and Chelsea have not

developed a meaningful bond. Any detriment to the child due to the termination
                                        13


of Chelsea’s parental rights pales in comparison to the benefits of being placed in

a stable and safe environment.

                                        III.

       For the foregoing reasons, we affirm the termination of Chelsea’s parental

rights in Z.R.

       AFFIRMED.
