                     IN THE COURT OF APPEALS OF IOWA

                                    No. 18-0681
                                Filed August 1, 2018


IN THE INTEREST OF A.B.,
Minor Child,

A.B., Mother,
       Appellant.
________________________________________________________________


         Appeal from the Iowa District Court for Woodbury County, Mary L.

McCollum Timko, Associate Juvenile Judge.



         A mother appeals from the termination of her parental rights to her child.

AFFIRMED.



         Theresa Rachel of Fankhauser Rachel, PLC, Sioux City, for appellant

mother.

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

Attorney General, for appellee State.

         Jessica R. Noll of Deck Law LLP, Sioux City, guardian ad litem for minor

child.



         Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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DANILSON, Chief Judge.

       A mother appeals from the termination of her parental rights to her child,

A.B., pursuant to Iowa Code section 232.116(1)(b), (d), (e), (g), (h), and (l) (2018).1

She does not contest the grounds for termination, but rather asserts the juvenile

court made mistakes of fact and misapplied the law. Based on the evidence

reflecting the mother has not maintained contact with A.B. and has not

demonstrated a likelihood of long-standing sobriety, we find termination of the

mother’s parental rights to A.B. is in A.B.’s best interest. We therefore affirm.

I. Background Facts & Proceedings.

       A.B. was born in September 2017 and was immediately removed from the

mother’s care due to the mother’s use of alcohol and illegal substances while

pregnant with A.B.2 The mother did not participate in reunification services or any

visitation with A.B. throughout the course of this matter. The mother admitted at

trial she had avoided efforts by service providers to contact her because she was

actively using illegal substances. After a hearing held December 18, 2017, the

juvenile court determined that, due to the parents’ lack of participation in services,

aggravated circumstances existed warranting the waiver of further reasonable

efforts toward reunification.      The mother entered inpatient substance-abuse

treatment in January 2018.         At the time of the combined permanency and




1
  The parental rights of two putative fathers were also terminated. The putative fathers do
not appeal.
2
  The mother’s parental rights to another child were terminated in June 2017 due to the
mother’s continued use of illegal substances and failure to participate in reunification
services. The mother was pregnant with A.B. at the time of the previous termination.
                                           3


termination hearing on March 16, 2018, the mother acknowledged she had not

seen A.B. since A.B.’s birth.

       In an order entered April 4, the juvenile court terminated the mother’s

parental rights to A.B., finding:

               The actions of [the mother] in her previous child in need of
       assistance proceedings as well as her actions in this child in need of
       assistance action concerning [A.B.] demonstrate a total lack of
       interest in parenting. [The mother] did not demonstrate any interest,
       let alone a genuine interest, in completing the responsibilities in the
       case plan in either case. She had no contact with the service
       providers and was unable to be located despite persistent attempts
       on the part of the Department of Human Services and [Family Safety,
       Risk, and Permanency] FSRP [providers] to contact her. . . . [The
       mother] has not demonstrated that she desired to maintain a place
       of importance in [A.B.]’s life as she failed to have any contact with
       [A.B.] since her removal. Given that [the mother] has had no contact
       with [A.B.] since her birth, the court finds clear and convincing
       evidence that there is no bond or closeness that would be harmful to
       [A.B.] to end. The court finds that [the mother] has, in fact,
       abandoned [A.B.] [The mother] was never a parent to [A.B.] Even
       prenatally, [the mother] showed little to no regard for her unborn child
       as she continued to use illegal substances and alcohol throughout
       her pregnancy.
               ....
               [A.B.] has moved on without her mother. She has grown and
       is meeting her milestones without any financial, physical, or
       emotional support from her parents. To try and introduce these
       parents to her at some point in the future would be harmful to her
       emotionally. None of her parents are in a position to state that they
       could have [A.B.] in their care without considerable time and attention
       to deal with their own issues. The history would demonstrate that
       they would not be able to accomplish this in a time frame that would
       be in [A.B.]’s best interest.
               The court finds that it is in the best interest of [A.B.] that the
       parental rights of [the mother] . . . be terminated as pled in the State’s
       petition. The court finds, after giving primary consideration to the
       physical, mental, and emotional condition and needs of the child, that
       a termination of parental rights is the most appropriate decision that
       can be made to further the well-being and future of [A.B.]

       The mother appeals.
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II. Standard of Review.

       We review termination proceedings de novo. In re J.C., 857 N.W.2d 495,

500 (Iowa 2014). “[O]ur fundamental concern is the child’s best interests.” Id.

III. Analysis.

       The mother contends the juvenile court made improper factual findings that

the mother has shown no interest in parenting A.B., participating in reunification

services, or engaging in visits; and that the mother has chosen to work in an

establishment that is not helpful to her recovery from substance abuse. The

mother also argues the court should have made a finding that the mother’s

absence from the waiver-of-reasonable-efforts hearing was due to her placement

in inpatient substance-abuse treatment.      The mother additionally asserts the

juvenile court misapplied the law in determining the parents were afforded

reunification efforts, considering the mother’s past performance in evaluating her

potential for successful parenting, and in denying the mother’s request for six

additional months to work toward reunification.

       The State maintains the mother has not preserved error on the court’s

factual findings and its determination as to reasonable efforts. See In re A.B., 815

N.W.2d 764, 773 (Iowa 2012) (“[T]he general rule that appellate arguments must

first be raised in the trial court applies to CINA and termination of parental rights

cases.”). Regardless of whether error was preserved on all of the mother’s claims,

her claims fail on the merits.

       First, on our review of the record, we cannot discern an improper recitation

of the facts in the juvenile court’s termination order. For example, the mother

contends the court should have found her absence from the December 18, 2017
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waiver-of-reasonable-efforts hearing was due to placement in an inpatient

substance-abuse treatment program. However, she stated at the termination

hearing she did not begin inpatient treatment until January 2018. When asked why

she did not attend the hearing, she said, “No reason.” Also, the court correctly

noted in the termination order the mother had applied for work at a casino, not that

the mother was working there. The mother stated at trial she had applied for the

job and recognized it was not a good choice in support of her maintaining sobriety.

We find the juvenile court’s findings of fact were supported by the record.

       We also find no error in the court’s application of the law. The evidence

reflects the department of human services offered services to the mother and

attempted numerous times to contact the mother and encourage her to engage in

services. All of the attempts were rebuffed by the mother. Additionally, the mother

did not request additional services or challenge the court’s order waiving

reasonable efforts, and she cannot raise this issue for the first time on appeal. See

In re A.A.G., 708 N.W.2d 85, 91 (Iowa 2005) (“The Department has an obligation

to make reasonable efforts toward reunification, but a parent has an equal

obligation to demand other, different, or additional services prior to a permanency

or termination hearing.”).

       Additionally, the juvenile court’s consideration of the mother’s past

performance was appropriate. The court cited In re R.K.B., which states that in

determining whether termination is in the child’s best interest:

       We consider what the future holds for the child if returned to his or
       her parents. Insight for this determination can be gained from
       evidence of the parent’s past performance, for that performance may
       be indicative of the quality of the future care the parent is capable of
       providing.
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572 N.W.2d 600, 601 (Iowa 1998) (quoting In re C.M.W., 503 N.W.2d 874, 875

(Iowa Ct. App. 1993)). The juvenile court determined the mother’s actions in failing

to participate in services and visitation with A.B. demonstrate the mother’s

disregard for A.B. We agree. Although the mother had engaged in substance-

abuse treatment at the time of the termination hearing and was making efforts to

find employment and long-term housing, she had not demonstrated an ability to

maintain sobriety or a genuine interest in parenting A.B. The mother had not

participated in services or made attempts to see A.B. other than placing a few

phone calls to service providers inquiring about visitation. The mother’s past

efforts as a parent to A.B. certainly inform the court as to her potential for future

parenting efforts.    The juvenile court correctly considered the mother’s past

performance.

        Last, the mother asserts the juvenile court should have granted her request

for six additional months to work toward reunification with A.B. The juvenile court

held:

               [The mother]’s substance-abuse issues as well as her chaotic
        and dysfunctional lifestyle are long standing. Only recently has she
        attempted to address her addiction as it pertains to the current case
        ....
               ....
               The treatment outcome listed . . . does not bode well for [the
        mother] being able to maintain sobriety this time around. According
        to the progress report dated March 13, 2018, “[the mother] appears
        to be in the contemplative stage of change (a very early stage), and
        she is at high risk for relapse, and this is due to her transitioning from
        this program.” . . . “This program” refers to inpatient treatment.
               [The mother] is still transitioning. [The mother] has not
        established a permanent residence. She has chosen to [apply for]
        work at a place that she, herself, admits is not good for her recovery
        given that alcohol will be served and people will be intoxicated and
        those are triggers identified by her. She has not indicated a firm
        support system for sobriety. . . . None of this gives the court comfort
                                          7


       that [the mother] will maintain sobriety or a sober lifestyle . . . . The
       court is not able to grant [the mother] six additional months to work
       towards reunification . . . .

       We agree. Under Iowa Code section 232.104(2)(b), in order to grant an

additional six months to work toward reunification, the court must find “the need

for removal of the child from the child’s home will no longer exist at the end of the

additional six-month period.” The record does not support such a finding. Despite

the mother’s commendable participation in substance-abuse treatment, at the time

of the termination hearing she had not had any contact with A.B. and had not

demonstrated an ability to maintain sobriety. Granting additional time to work

toward reunification would be inappropriate in this case and would not be in A.B.’s

best interests. A.B. has thrived in foster care, is young, and is adoptable. An

additional six months in limbo is not in A.B.’s best interest.         A.B. deserves

permanency and stability now.

IV. Conclusion.

       We conclude the juvenile court did not make improper findings of fact or

misapply the law in its termination order. We also conclude there are grounds for

termination of the mother’s parental rights to A.B. and termination is in A.B.’s best

interest. We affirm.

       AFFIRMED.
