                    IN THE COURT OF APPEALS OF IOWA

                                    No. 19-0719
                                Filed July 24, 2019


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

A.T., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Poweshiek County, Rose Ann

Mefford, District Associate Judge.



       A mother appeals from the termination of her parental rights. AFFIRMED.



       Peter Stiefel, Victor, for appellant mother.

       Thomas J. Miller, Attorney General, and Anna T. Stoeffler, Assistant

Attorney General, for appellee State.

       Dusty L. Clements of Clements Law & Mediation, LLC, Newton, guardian

ad litem for minor children.



       Considered by Potterfield, P.J., and Doyle and May, JJ.
                                           2


MAY, Judge.

       The juvenile court terminated a mother’s parental rights to her children,

Ja.B. and Jo.B. On appeal, the mother contends the juvenile court erred in (1)

denying the mother’s motion for recusal; (2) denying the mother’s motion to

continue; (3) granting a motion to amend the termination petition; (4) concluding

the statutory requirements for termination were satisfied; (5) finding termination

was in the children’s best interests; (6) declining to apply a permissive exception

to termination; and (7) declining to provide her with an additional six months to

work toward reunification.1 We affirm the juvenile court.

I. Background Facts and Proceedings

       Ja.B. and Jo.B. were born in 2012 and 2016, respectively. Ja.B. suffers

from short bowel syndrome, a life-threatening medical condition that requires an

intensive treatment regimen. In 2016, the Iowa Department of Human Services

(DHS) became involved with this family after receiving reports that Ja.B.’s medical

needs were not being met.

       Ja.B. received medical care at the Children’s Hospital and Medical Center

in Omaha, Nebraska. However, the mother did not bring him to several of his

scheduled appointments. The hospital banned both parents because they made

“concerning statements.” As a result, most of Ja.B.’s treatment was transferred to

the University of Iowa Hospitals and Clinics.

       In an effort to avoid removing the children from the home, the juvenile court

ordered DHS to provide daily homemaker-home health aide services to the family.


1
 The father’s parental rights were also terminated. He did not appeal. His rights are not
at issue here.
                                         3


However, by May 2017, the State applied for removal of the children from the home

because of the mother’s admitted use of marijuana, the parents’ violation of an

established safety plan, the presence of methamphetamine paraphernalia in the

home, evidence the mother was not following essential medical protocol with

regards to Ja.B., and reports that Ja.B. was found playing with knives. The same

day, the court issued an order removing the children. Both children were “dirty and

unclean” at the time of removal.

       Jo.B. entered foster care. Ja.B. was admitted to the University of Iowa

hospital for a central line infection. Ja.B. also underwent drug testing. He tested

positive for marijuana, methamphetamine, and amphetamine.            Upon Ja.B.’s

discharge, he joined the same foster family that was caring for Jo.B.

       In June 2017, the juvenile court adjudicated Ja.B. as a child in need of

assistance pursuant to Iowa Code section 232.2(6)(b), (c)(2), and (e) (2017). The

court also adjudicated Jo.B. as a child in need of assistance pursuant to section

232.2(6)(c)(2).

       The same month, Ja.B. was admitted to the hospital over concerns of a

central line infection. However, the mother did not visit Ja.B. in the hospital

because she had an active warrant related to a possession charge. Ultimately, the

mother turned herself in and pled guilty to the charge.

       Also in June, the mother received referrals for the Parents as Teachers and

Parent Partner programs. But in August, the Parents as Teachers provider could

not make contact with the mother. So the provider ventured out to her home. The

provider found the home abandoned and dismissed the family from the program.

The family was also dismissed from the Parent Partner program due to a lack of
                                          4


engagement. The family again sought out the Parent Partner program in October,

but they were again dismissed due to lack of engagement.

       In early 2018, the mother was charged with child endangerment for her care

of Ja.B. preceding removal. She pled guilty. The district court entered a no-contact

order between the mother and the children.          It was later modified to permit

supervised visitation between the children and mother.

       In May, the juvenile court held a permanency and termination hearing. Both

parents failed to attend due to “sickness.”

       The next month, the mother’s probation was revoked because she missed

two   appointments     with   her   probation   officer   and   tested   positive   for

methamphetamine and marijuana.

       In October, the juvenile court terminated both parents’ rights. Both parents

appealed. This court reversed both terminations on procedural grounds. See In

re J.B., No. 18-1807, 2018 WL 6706266, at *1 (Iowa Ct. App. Dec. 19, 2018)

(concluding “the juvenile court abused its discretion in failing to continue the

combined permanency and termination hearing and proceeding to terminate the

parents’ parental rights”).

       On remand, the mother moved for the presiding judge to recuse. The

mother reasoned that because the judge presided over the first termination hearing

and issued an order terminating her parental rights, the judge could not be impartial

as the case proceeded forward. The juvenile court denied the motion.

       The juvenile court scheduled a permanency and termination hearing for

January 23, 2019.      On the day before the hearing, the mother moved for a

continuance. She argued she had received insufficient notice of the hearing. The
                                             5


mother did not appear at the hearing, but her attorney did. Her attorney advised

the court that the mother had transportation issues and concerns regarding road

conditions.

       Ultimately, the court granted the continuance and rescheduled the hearing

for February. Later, the hearing was again rescheduled for March 20.

       On March 19—the day prior to the rescheduled hearing—the State moved

to amend the petition to correctly cite one of the statutory grounds for termination

with respect to Ja.B.2 At the termination hearing, the mother’s counsel objected to

the amendment. Counsel argued the mother is entitled to notice of the grounds

for termination at least seven days prior to the hearing. The court granted the

motion to amend.

       The mother did not appear for the March 20 termination hearing. The

mother’s counsel moved for a continuance based on the mother’s absence.

Counsel advised the court that the mother had planned on attending and he did

not know why she was absent. He further advised the court that he had received

no answer to his text messages and calls to the mother from that morning and the

day before. The court denied the motion and proceeded with the termination

hearing.

       The juvenile court terminated the mother’s parental rights pursuant to Iowa

Code section 232.116(1)(d) and (f) (2018) with respect to Ja.B., and section


2
  The petition had cited to Iowa Code section 232.116(1)(h), which applies to children three
years old or younger. Because Ja.B. was older than three years, this paragraph was
inapplicable to him. The motion to amend sought to change this code reference to section
232.116(1)(f), which apples to children four years of age or older. Both paragraphs (h)
and (f) authorize termination if the child cannot be returned to the parent’s care. See Iowa
Code § 232.116(1)(f), (h). Their requirements only differ with respect to the age of the
child and the length of time the child is out of the parent’s care. See id.
                                            6


232.116(1)(d) and (h) with respect to Jo.B. The mother appealed. Our supreme

court transferred the case to this court.

II. 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).

III. 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

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)). We also address any additional issued raised by

the parties.

       A. 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
                                             7

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)(d) for both children.

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

when both of the following have occurred:

              (1) The court has previously adjudicated the child to be a child
       in need of assistance after finding the child to have been physically
       or sexually abused or neglected as the result of the acts or omissions
       of one or both parents, or the court has previously adjudicated a child
       who is a member of the same family to be a child in need of
       assistance after such a finding.
              (2) Subsequent to the child in need of assistance adjudication,
       the parents were offered or received services to correct the
       circumstance which led to the adjudication, and the circumstance
       continues to exist despite the offer or receipt of services.

Here, the mother concedes the first element but challenges the second.

       We agree with the juvenile court that the mother was offered corrective

services and the circumstances leading to adjudication continue to exist.              The

juvenile court adjudicated Ja.B. as a child in need of assistance under Iowa Code

section 232.2(6)(b).3 The court cited several conditions leading to the adjudication

including, but not limited to: the medical neglect of Ja.B., the parents’

methamphetamine and marijuana use, and the mother’s failure to comply with drug

testing. The court then ordered the parents to cooperate with drug testing, obtain




3
 A child is a child in need of assistance under Iowa Code section 232.2(6)(b) when the
child’s “parent, guardian, other custodian, or other member of the household in which the
child resides has physically abused or neglected the child, or is imminently likely to abuse
or neglect the child.”
                                          8


substance-abuse and mental-health evaluations, and comply with the resulting

treatment recommendations. The court also ordered the parents to attend all of

Ja.B.’s medical appointments.

       However, the mother largely failed to comply with the court’s orders despite

a plethora of offered services. She was offered gas cards to assist her travel to

substance-abuse treatment. Family safety, risk, and permanency (FSRP) service

providers offered transportation to necessary appointments, including drug testing.

Service providers also offered consultations regarding mental health and

substance abuse.

       Even so, the mother failed to ever complete a substance-abuse or mental-

health evaluation. She never completed substance-abuse treatment. She never

completed a drug test for DHS.        She failed to attend all of Ja.B.’s medical

appointments. When visitation occurred in the family home, the floor was covered

by cigarette butts and butane fuel, and there were “cigarettes and piles of ashes”

on the furniture.

       Yet we can hardly overstate the need for this mother to provide a clean

home and consistent attention to these children’s needs. Ja.B., in particular,

requires a clean environment and attentive care. He has both a gastrointestinal

tube and a central line. Infection of the central line has serious health implications.

The administration of intravenous nutrition feeding, known as TPN, through Ja.B.’s

central line is critical to his care. Moreover, the formulation of the TPN changes

weekly depending on the results of weekly lab testing. Accordingly, his caregiver

must take him to weekly appointments so the TPN formulation can be adjusted to

his needs each week.
                                          9


        The mother has not shown she can provide this critical care. Because the

mother has not completed any mental-health or substance-abuse evaluations, we

cannot say the issues that caused her to neglect Ja.B. and his medical needs are

now resolved. Rather, because she received no treatment, we infer her mental-

health and substance-abuse issues continue. Likewise, because the mother failed

to complete drug testing when requested by the DHS, we assume each test would

have resulted in a positive result. Cf. In re C.W., No. 14-1501, 2014 WL 5865351,

at *2 (Iowa Ct. App. Nov. 13, 2014) (noting missed drug screenings are presumed

positive).

        We conclude the State offered the mother services to correct the conditions

leading to adjudication.     Even so, those conditions remain.       Termination is

authorized pursuant to Iowa Code section 232.116(1)(d). The first step of our

analysis is satisfied.

        B. 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:

               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).

        Here, the mother contends termination is not in the children’s best interest.

She does not provide any support for her contention, and we find no such support
                                          10


in the record. The children suffered while in the mother’s care. Both experienced

developmental delays. In contrast, both children began progressing once removed

from the mother’s home. We also note the foster placement has expressed

interest in adopting the children. See id. § 232.116(2)(b). We conclude termination

is in the children’s best interest. The second step of our analysis is satisfied.

       C. Exceptions

       Next, 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.

       “[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.

(citation omitted).
                                          11


       The mother argues the strength of the parent-child bond should preclude

termination pursuant to section 232.116(3)(c). We disagree. While the FSRP

notes indicate the children share a bond with the mother, nothing suggests that

bond is strong enough to overcome the mother’s 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 child]’s

developing needs.”).

       D. Additional Issues

       We now turn to the mother’s remaining challenges.

       1. Additional time

       The mother contends the juvenile court erred in declining to provide an

additional six months to work toward reunification. The juvenile court may defer

termination for a period of six months if it is able to “enumerate the specific factors,

conditions, or expected behavioral changes which comprise the basis for the

determination that 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.”               Iowa Code

§ 232.104(2)(b).

       The mother points to no changes that will likely eliminate the need for

removal in the next six months. Moreover, the mother’s “past performance is

indicative of the quality of care [s]he is capable of providing in the future.” In re

N.A.S., No. 13-0074, 2013 WL 988895, at *2 (Iowa Ct. App. Mar. 13, 2013); accord

In re C.W., 554 N.W.2d 279, 283 (Iowa Ct. App. 1996) (“Evidence from a parent’s

past performance may be used to gauge the quality of life the child may receive in
                                         12


the future.”). Here, the mother’s past reveals her refusal to make the changes

necessary to adequately care for her children. The juvenile court reasonably

concluded it could not rely on the mother to turn over a new leaf within the next six

months.

       2. Motion for recusal

       We next address the mother’s claim that the juvenile court erred in denying

her motion for recusal. “We review a court’s decision to recuse or not to recuse

itself for an abuse of discretion.” Taylor v. State, 632 N.W.2d 891, 893 (Iowa 2001).

“An abuse of discretion is found when the . . . court has clearly exercised its

discretion on untenable grounds or acted unreasonably.” Id. (citation omitted).

       The mother contends the presiding judge’s impartiality was reasonably

called into question because the judge entered findings of facts and conclusions

with regard to the first termination proceeding.       The mother contends this

compromised the judge’s ability to function as a “neutral and detached judge.” Cf.

State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994) (noting litigants have “a

constitutional right to have a neutral and detached judge”).

       However, “[a]ctual prejudice must be shown before a recusal is necessary.

The appearance of impropriety is not sufficient to merit recusal.” In re C.W., 522

N.W.2d 113, 117 (Iowa Ct. App. 1994). The party seeking recusal “has the burden

of establishing prejudice with allegations of fact.” See State v. Smith, 282 N.W.2d

138, 142 (Iowa 1979).

       Here, we find the judge’s past involvement in the case is insufficient to

warrant recusal. See C.W., 522 N.W.2d at 117. Certainly, the mother has not

identified any evidence that the presiding judge was actually prejudiced against
                                         13


her. Moreover, in its termination order, the court specifically noted it did not take

judicial notice of the transcript or ruling from the original termination proceeding.

This helps to alleviate any concern that the prior proceeding impacted the current

proceeding.

       We conclude the juvenile court did not abuse its discretion in denying the

motion for recusal.

       3. Motion to continue

       The mother also argues the court should have granted her motion to

continue the termination hearing due to her absence. “[O]ur review of a . . . court’s

denial of a motion for continuance is for an abuse of discretion.” In re M.D., 921

N.W.2d 229, 232 (Iowa 2018). “Where constitutional rights are implicated, our

review is de novo.” In re R.B., 832 N.W.2d 375, 378 (Iowa Ct. App. 2013).

       With respect to the constitutional dimensions of the mother’s argument, she

argues her absence from the hearing inhibited her due process rights. “Due

process requires ‘fundamental fairness’ in judicial proceedings.” In re J.S., 470

N.W.2d 48, 52 (Iowa Ct. App. 1991). When “a parent receives notice of the petition

and hearing, is represented by counsel, counsel is present at the termination

hearing, and the parent has an opportunity to present testimony . . . , we cannot

say the parent has been deprived of fundamental fairness.” Id. The question here

is whether the mother’s absence deprived her of an opportunity to present

testimony.

       In answering that question, we begin by noting due process does not

provide parents with an absolute right to be physically present at a termination

hearing. See M.D., 921 N.W.2d at 236 (noting incarcerated parents must have
                                            14


right to participate by phone or other means of communication). Moreover, in this

case, we find the mother had an opportunity to be present and provide testimony,

but she did not avail herself of it. She was not prevented from participating through

some form of detainment or procedural mechanism. Although she claims her

absence was caused by transportation woes4 and illness, we find no support in the

record for these claims. We find no violation of due process.

       Likewise, with respect to the non-constitutional dimensions of the mother’s

argument, we find no abuse of discretion. “Motions to continue ‘shall not be

granted except for good cause.’” R.B., 832 N.W.2d at 378 (quoting Iowa Ct. R.

8.5). Here, the mother’s counsel provided no justification for the continuance other

than the absence of the mother. This does not amount to good cause, particularly

given the mother’s history of missing court hearings. See, e.g., In re K.M., No. 16-

0778, 2016 WL 4379361, at *2 (Iowa Ct. App. Aug. 17, 2016) (concluding the

juvenile court did not abuse its discretion when it denied a motion to continue on

the basis that the parent was not present).

       4. Motion to amend petition/denial of the mother’s motion to continue

       Finally, the mother challenges the grant of the State’s motion to amend and

the denial of her related motion to continue. The State moved to amend its petition

to cite the correct paragraphs of Iowa Code section 232.116(1). Specifically, as to

Ja.B., the State sought to clarify that it was relying on paragraph (f), which applies

to children of Ja.B.’s age, rather than paragraph (h), which applies to children




4
   An FSRP worker previously informed the mother that a worker would assist in
transportation to court if the mother requested it. Yet, it appears the mother did not make
such a request.
                                       15


younger than Ja.B. After the court permitted this amendment, the mother moved

for a continuance so she could have the seven days notice required by Iowa Code

section 232.112(3). The court denied the mother’s motion.

       As explained above, however, we have found that the State met its burden

of proving statutory grounds for termination under paragraph (d). Therefore, we

need not address whether there were also grounds for termination under

paragraph (f). See A.B., 815 N.W.2d at 774. Accordingly, we need not address

the State’s motion to amend or the mother’s related motion to continue, both of

which concerned paragraph (f) but not paragraph (d).

IV. Conclusion

       The juvenile court properly terminated the mother’s parental rights to both

children.

       AFFIRMED.
