                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0618
                               Filed June 20, 2018


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

J.W., Mother,
      Appellant,

C.B., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for O'Brien County, David C. Larson,

District Associate Judge.



       A mother and father each appeal from termination of their parental rights to

two children. AFFIRMED ON BOTH APPEALS.



       Christopher D. Sandy of Sandy Law Firm, Spirit Lake, for appellant mother.

       Tobias Cosgrove, Sibley, for appellant father.

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

General, for appellee State.

       Tisha M. Halverson of Klay, Veldhuizen, Bindner, DeJong & Halverson PLC,

Paullina, guardian ad litem for minor children.



       Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
                                              2


TABOR, Judge.

          Charles and Joni1 appeal from termination of their parental rights to two

children, five-year-old B.B. and two-year-old T.B. The parents contend the State

failed to offer clear and convincing evidence to support the grounds for termination

under Iowa Code section 232.116(1)(f) and (h) (2017). The parents also argue

termination of their rights will be detrimental to the children due to the closeness

of their relationship and they should have been given an additional six months to

work toward reunification.

          We have reviewed the record and now determine, although the parents

addressed the initial concerns of homelessness and instability, continued removal

of the children is necessary because of shortcomings in their parenting skills and

judgment. After two years out of their parents’ care, including an extension of six

months, the best interests of the children will be served by termination of parental

rights. We affirm the order of the juvenile court.

I.        Facts and Prior Proceedings

          The family first came to the attention of the Iowa Department of Human

Services (DHS) in December 2015, when T.B. was six months old. Charles was

carrying the child and dropped him, breaking one of his legs. An investigation

concluded the harm was accidental. In May 2016, DHS discovered the family was

homeless, and the parents agreed to a voluntary foster care arrangement until they

could obtain stable housing and jobs.




1
     These parents are not married but have lived together throughout these proceedings.
                                          3


       The juvenile court adjudicated the children in need of assistance (CINA) in

August 2016 and placed them with a foster family. See Iowa Code § 232.2(6)(g)

(failure to exercise a minimal degree of care in supplying the child with adequate

food, clothing, or shelter). To achieve reunification, the court expected the parents

to obtain secure housing and jobs, and to participate in services—including

budgeting and parenting instruction.      The DHS also provided mental health

services for the parents; family safety, risk, and permanency services; visitation;

parent-child interactive therapy (PCIT) services; individual therapy; psychiatric

evaluations; and transportation assistance. Following review hearings in October

and December 2016, the court determined the children still could not be returned

to the parents.

       In April 2017, after the children had been out of the parents’ care for one

year, the court held a permanency hearing and concluded, “[I]t is reasonable to

believe that the need for continued removal will no longer exist at the end of an

additional three months.” Then, in July 2017, the court gave the parents another

three months to work toward reunification.         But by October, the court had

determined the children still could not be returned, and the State filed a petition to

terminate parental rights.    After a series of hearings in December 2017 and

January 2018, the court entered its order terminating parental rights in April 2018.

       The parents’ initial financial situation improved with significant services

including budgeting assistance. Toward the end of the CINA case, the father

worked full time and the mother worked part time. By that time, they achieved

some economic stability, with the help of their parents and siblings, a food pantry,

and an understanding landlord who worked with them when they were late paying
                                            4


rent. Thus, the parents made progress toward addressing the homelessness and

lack of resources that led to the original voluntary removal.2

       But, during the CINA case, new issues arose that posed a danger to the

children, specifically the parents’ gaps in caretaking skills and poor judgment. The

DHS caseworker was concerned when the parents lived with and exposed the

children to Charles’ coworker, who was a registered sex offender.3 Although the

DHS made its concerns known to the parents at the time, they continued to

associate with people who had not been approved to be around the children,

particularly during unsupervised visits.

       As DHS followed the family and its interactions, social workers noted the

parents easily became overwhelmed by the disciplinary needs of their young

children. During the two years the children were out of their care, Joni and Charles

received numerous services to improve their parenting, including PCIT. But social

workers routinely noted the parents were unable to apply the skills they were being

taught to their family interactions. Social workers testified they frequently had to

intervene or prompt the parents to engage in caregiving, and the parents did not

have age-appropriate expectations for the children’s abilities. When he became

agitated during an encounter, Charles would speak unduly harshly to the boys and

was physically aggressive toward them. For example, on one occasion, Charles



2
  Still, the social worker assisting with budgeting testified she was unable to account for
between $1000 and $1200 of their earnings each month. Charles continued to drive on a
suspended license, including driving with the children in the car during their unsupervised
visitations. Eventually, he was arrested for driving with a suspended license. Rather than
serve the ninety days in jail, he opted to have in-home monitoring, which cost the family
$600 per month.
3
  Charles is himself a registered sex offender, stemming from a conviction more than
twenty years ago.
                                          5


grew frustrated B.B. was not listening and forcefully pushed B.B.’s legs into a car

seat. Charles would often forcefully grab things from the children’s hands.

       A social worker testified the boys were energetic and loved to climb and run

around. But the parents would not intervene to ensure their safety (for example,

when the boys were climbing on top of a picnic table) until prompted by the social

worker. When the children did not mind their warnings, the parents did not persist,

and the social worker had to step in to ensure the children’s safety. One social

worker testified she carried out most of the parenting responsibilities during visits.

Another social worker testified the parents had improved a little closer to the

termination hearing but “once we left PCIT, all of those skills kind of went out the

door.” The parents struggled to implement tools like instilling praise, redirecting

problematic behaviors, and providing activities to keep the children busy during

visitations without becoming frustrated and resorting to harsh language and

aggressive contact.

       The DHS ended the parents’ overnight visitations out of concern for the

children’s safety. During one weekend visit, Charles was caring for the children

alone while Joni was at work. Overwhelmed by the responsibility, Charles called

the foster parents to come get the children early. Later that day, B.B. told his foster

mother Charles had hit him in the face with a sock as a punishment. DHS ended

unsupervised visits at that time. Later, visits returned to semi-supervised, but an

incident involving Charles becoming physically aggressive toward the children and

then angry at the social worker who pointed it out led DHS to resume fully

supervised visits. According to the social workers, the longer the visits lasted, the

more weighed down the parents appeared. For most of the six months before the
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termination petition, visitation lasted two hours two days per week. The parents

twice asked for additional visitation time, in January and July 2017, but these

requests were denied.

          Joni’s mother testified she did not believe Joni and Charles could be full-

time parents. In her view, classes had not yet worked to improve their parenting.

She believed parental rights should be terminated and the children adopted. The

grandmother testified she did not think the parents were able to provide for the

children—even basic needs like food—because they had a difficult time caring for

themselves and participating in services.          Both Joni and Charles have some

cognitive deficiencies and mental-health disorders that affect their ability to parent.

Both parents have attended some individual therapy. Joni has been prescribed

medication for bipolar disorder, and Charles has been prescribed medication for

anxiety. At the termination hearing, the therapist testified Charles’s anxiety had

improved. Following psychological evaluations, the therapist recommended they

continue with individual therapy and medication management.

         The PCIT provider informed the court in a letter the parents had completed

one of two steps of the PCIT program. She could not predict how long it would

take the parents to finish the second step of the program.

         In the summer of 2017, the children were transferred to a new foster home,4

but B.B. acted out by scratching himself, banging his head on a wall, and

destroying things in the new home. When returned to the prior foster home, he

quickly reintegrated into the family and his problematic behaviors stopped. The



4
    This was due to some medical concerns of the first foster mother.
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children view their foster parents as their source of safety; they cling to the foster

parents and had to be encouraged to greet Joni and Charles. A social worker

testified the children are safe and adjusting well to their foster homes. Neither

foster family is able to adopt the brothers together.5 But they are committed to

maintaining contact between the siblings and with the maternal grandparents. The

social worker who worked with the family leading up to the termination hearings

noted, although Joni and Charles love the children, they do not have the necessary

abilities, foresight, or insight when it comes to parenting. She testified, in contrast,

the foster parents impose appropriate discipline and structure and the children are

better behaved with them.

       Ultimately, the juvenile court determined Joni and Charles “lack the

necessary parenting skills to exercise a reasonable degree of care in supervising”

the children, and the children could not be returned to their care at the time of the

termination hearing. Joni and Charles appeal. The State and the children’s

guardian ad litem both defend the order terminating parental rights.

II.    Analysis

       A. Return to Parental Custody

       The court terminated parental rights under Iowa Code section 232.116(1)(f)

with respect to B.B. and under section 232.116(1)(h) with respect to T.B., based

on their respective ages.6 Both paragraphs (f) and (h) require clear and convincing


5
  At the close of the hearings, B.B.’s foster family had not yet decided if they were able to
adopt. T.B.’s foster family expressed willingness to adopt.
6
  We review termination-of-parental-rights proceedings de novo, which means examining
both the facts and law and adjudicating anew those issues properly preserved and
presented. In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We are not bound by
the juvenile court’s factual findings, but we give them weight, especially when witness
credibility is critical to the outcome. See In re M.W., 876 N.W.2d 212, 219 (Iowa 2016).
                                             8


evidence the children cannot be returned to the custody of their parents due to a

risk of further harm. See Iowa Code § 232.102; see also id. § 232.116(1)(f)(4),

(h)(4). The parents contest only this common element of paragraphs (f) and (h).

       Joni and Charles contend the State failed to offer clear and convincing

evidence the children could not be returned to their care. They emphasize their

progress in finding jobs and a stable home; they completed step one of PCIT and

were moving onto step two.           The parents also seek to minimize Charles’s

aggressive behavior toward the boys by asserting his hearing impairment requires

him to speak louder. The parents also point out the DHS did not reach a founded

child abuse assessment in this case.7 But a founded child abuse assessment is

not a necessary element under section 232.116(1)(f) or (h). Joni and Charles

deserve credit for their efforts to obtain jobs and a stable home, but the record

reveals they have not adequately addressed their parenting deficiencies.

       At each turn, social workers testified the parents cannot safely supervise

the boys without continuous intervention. The parents are unable to apply skills

they have learned in PCIT to even short supervised interactions. The parents’

anger and frustration continued to get the better of them, even when visits were

only twice a week for two hours. The parents’ inability to handle these active

children led the DHS to cancel overnight and unsupervised visitations. Even Joni’s

mother acknowledged Joni and Charles lacked the wherewithal to provide for the



The State must offer clear and convincing proof, which means we see no “serious or
substantial doubts as to the correctness [of] conclusions of law drawn from the evidence.”
In re D.W., 791 N.W.2d 703, 706 (Iowa 2010) (quoting In re C.B., 611 N.W.2d 489, 492
(Iowa 2000)).
7
  B.B.’s allegation that Charles hit him with a sock was investigated but unfounded and left
with the social workers to address.
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children’s most basic needs. The grandmother saw no parenting improvement

despite the PCIT lessons.

       Joni and Charles both have intellectual challenges and ongoing mental-

health issues that impact their ability to assume the responsibility of full-time

parenting. We recognize “lower mental functioning alone is not sufficient grounds

for termination.” In re A.M., 843 N.W.2d 100, 111 (Iowa 2014) (citing D.W., 791

N.W.2d at 708). Nor can termination be based solely on economic factors. Id. In

this case, as in A.M., “the parents’ overall decision making, not their level of

resources, was the fundamental problem.” Id. Joni and Charles have not been

able to “internalize the necessary skills to keep [the children] safe and developing

properly without the hovering supervision of DHS workers.” Id. at 111-12. The

children have been placed outside the home continuously since May 2016. Joni

and Charles still lack the skills to exercise a reasonable degree of care in

supervising an active toddler and preschooler. They have made some progress in

their PCIT lessons but demonstrate minimal application of those lessons in real-

world situations. We find clear and convincing evidence in the record the children

could not be safely returned to the parents’ care at the time of the hearings.

       B. Closeness of Parental Relationship

       The parents further argue the court should have found “termination would

be detrimental to the child[ren] at the time due to the closeness of the parent-child

relationship.” Iowa Code § 232.116(3)(c). The parents contend they have a close

bond with the children and the brothers have a close bond with each other, which

would be disrupted as the foster families are unable to adopt the siblings together.

The juvenile court agreed the parents were bonded with the children but not so
                                         10


strongly that termination would be detrimental to B.B. and T.B. The factors under

Iowa Code section 232.116(3) are permissive and within the sound discretion of

the juvenile court. In re P.L., 778 N.W.2d 33, 39-40 (Iowa 2010).

       The children have been out of the parents’ care for nearly two years. A

social worker testified a bond still existed between the children and their biological

parents but both children call their foster parents “mom” and “dad.” The children

have a sense of safety and belonging with their foster families.         We cannot

conclude termination of parental rights would be detrimental to the children,

especially since B.B. has spent almost half his life and T.B. almost his entire life

out of their care.

       Section 232.116(3)(c) applies to the parent-child relationship, not the

relationship between siblings. But the sibling bond and the prospect that the boys

will be adopted separately is a relevant factor in considering their best interests.

Wherever possible, siblings should be kept together. See In re L.B.T., 318 N.W.2d

200, 202 (Iowa 1982). Here, the foster parents have expressed a commitment to

maintaining contact between the children, even if they cannot be adopted together.

And the paramount concern is the best interests of the children. Id. at 201. In this

case, their best interests are met by terminating parental rights.

       C. Additional Six Months

       Finally, the parents ask for six more months to work toward reunification.

They point to their success in securing housing and employment, and they assert

their therapists were optimistic about their progress.

       The juvenile court may enter an order extending permanency if it

determines “the need for removal of the child from the child’s home will no longer
                                         11


exist at the end of the additional six-month period.” Iowa Code § 232.104(2)(b).

By the time of termination, the children had been out of the home for nearly two

years with no trial periods at home and progressively more restrictive visitation due

to the parents’ actions. The court delayed a permanency hearing twice, giving the

parents an additional three months to work toward reunification in April 2017 and

another three months in July 2017. But after those six months, the court found

insufficient progress to return the children home. The therapist praised their

completion of step one of the two-step PCIT program, but it is not clear that, at the

end of six months, they will have finished the second step. Even if they finished,

their inability to apply the skills from step one bodes poorly for lasting change.

       “A parent does not have an unlimited amount of time in which to correct his

or her deficiencies.” In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct. App. 1997).

Once statutory timelines have run, the best interests of the child are promoted by

termination. In re L.M.F., 490 N.W.2d 66, 68 (Iowa 1992). Young children cannot

wait indefinitely for stable parents. D.W., 791 N.W.2d at 707. Joni and Charles

had two years to overcome their parenting deficiencies. They have not been able

to do so. Delaying permanency is not appropriate under these circumstances.

       AFFIRMED ON BOTH APPEALS.
