IN THE COURT OF APPEALS OF IOWA

No. 21-0395

No. 21-0779

Filed January 12, 2022

IN THE INTEREST OF P.S.,

Minor Child,

K.S., Mother,

Appellant,

K.S., Father,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Madison County, Kevin Parker, 

District Associate Judge.

The mother and father separately appeal the termination of their parental 

rights. AFFIRMED ON BOTH APPEALS.

Raya D. Dimitrova of Carr Law Firm, P.L.C., Des Moines for appellant 

mother.

Christine E. Branstad of Branstad & Olson Law Office, Des Moines for 

appellant father.

Thomas J. Miller, Attorney General, and Natalie Deerr, Assistant Attorney 

General, for appellee State.

Erica D. Parkey, Des Moines, attorney and guardian ad litem for minor child.

Considered by Mullins, P.J., and Schumacher and Ahlers, JJ.
2

AHLERS, Judge.

The mother and father separately appeal the termination of their parental 

rights to P.S., who was born in February 2020. The child tested positive for 

methamphetamine at birth. Shortly after birth and before the child left the hospital, 

the parents consented to removal of the child from their care. The child was soon 

adjudicated in need of assistance. 

The Iowa Department of Human Services (DHS) has been involved with the 

mother since December 2018, when she gave birth to another child1 who also 

tested positive for methamphetamine. Shortly after P.S.’s birth in February 2020, 

the mother claimed she last used methamphetamine “a couple months” ago, and 

the DHS recommended the mother undergo substance-abuse and mental-health 

evaluations and treatment. The mother obtained a substance-abuse evaluation, 

which recommended inpatient treatment. The mother enrolled in outpatient 

treatment instead, which she only attended sporadically. She was unsuccessfully

discharged due to lack of attendance. After discharge, the DHS asked the mother 

to submit to a drug test. The mother failed to attend testing, claiming she lacked 

transportation and it would be an “inconvenience” to travel to the testing facility. 

The DHS also became involved with the father in December 2018 when the 

older child was born. Paternity testing showed he was not the biological father of 

the older child, so services stopped. He acknowledges he continued to use drugs 

after he was excluded as the older child’s father. The DHS became involved with 

 

1 The rights of both parents of this older child were separately terminated in 

January 2021. The father of P.S. is not the father of the older child. Neither parent 

of the older child appealed the termination.
3

the father again in February 2020 when P.S. was born, and the father provided a 

negative drug test at the time. P.S.’s paternity was initially in question, and the 

father largely refused the DHS services after P.S. was born. In June, a paternity 

test showed the father was P.S.’s biological father, and the father began to 

reengage with the DHS. In July, the DHS requested the father submit to a drug 

screen. The father failed to attend testing. In August, the father entered a 

residential substance-abuse treatment facility. The father testified he last used 

illegal substances about two weeks before entering the residential facility. The 

father continued living in the residential facility through the end of the termination 

hearing. 

The State filed a petition to terminate parental rights of both parents in 

August 2020. The juvenile court held a concurrent permanency and termination 

hearing on November 19, December 7, and December 14. The court filed its order 

terminating the rights of both parents in March 2021. The court issued a 

corresponding permanency order on the same date. The mother appealed shortly 

after the termination order, and the father filed post-termination motions asking the 

court to reopen the record and reconsider its termination order. The court denied 

the father’s motions, and the father appealed. We address both parents’ appeals 

in this consolidated opinion.

I. Standard of Review

We review termination-of-parental-rights proceedings de novo.2 We give 

weight to the juvenile court’s findings of fact, especially as to witness credibility, 

 

2

In re A.B., 957 N.W.2d 280, 293 (Iowa 2021).
4

but we are not bound by them.3 “We will uphold an order terminating parental 

rights if there is clear and convincing evidence of grounds for termination under 

Iowa Code section 232.116 (2020). Evidence is ‘clear and convincing’ when there 

are no ‘serious or substantial doubts as to the correctness or conclusions of law 

drawn from the evidence.’”4

II. The Father’s Procedural Claims

Before proceeding to the merits of termination, we address the father’s 

procedural claims. 

A. Combined Hearing

The father argues the juvenile court should have granted his motion to sever 

the concurrent permanency and termination hearing on both statutory and 

constitutional grounds. As to the statutory grounds, we have already held “our 

statutory scheme does not bar holding a concurrent permanency and termination 

hearing.”5 We continue to hold nothing in the statutes or rules prohibits a 

concurrent permanency and termination hearing. 

To the extent the father challenges the juvenile court’s discretion in denying 

his motion to sever, a court may sever proceedings “for convenience or to avoid 

prejudice.”6 The court first held a permanency hearing on August 27, 2020. During 

 

3

Id.

4

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)).

5

In re H.V., No. 15-1481, 2015 WL 6507559, at *1 (Iowa Ct. App. Oct. 28, 2015); 

accord Iowa R. Civ. P. 1.913 (allowing the court to consolidate separate actions 

involving “common questions of law or fact,” unless a party shows prejudice).

6

Iowa R. Civ. P. 1.914; accord Handley v. Farm Bureau Mut. Ins. Co., 467 N.W.2d 

247, 249 (Iowa 1991) (reviewing a ruling on a motion to sever for abuse of 

discretion).
5

the hearing, all parties—including the father—agreed to continue the permanency 

hearing and hold a concurrent hearing in October. The concurrent hearing aided

in judicial economy and in placing the child in a permanent home as soon as 

possible. On the father’s motion, the concurrent hearing was then continued to 

November. The father filed his motion to sever the hearing on November 17, two 

days before the beginning of the rescheduled concurrent hearing. Considering the 

delay in the concurrent hearing on the father’s motion and his late request to sever 

the hearing, we find no abuse of discretion in the court’s refusal to sever the 

hearing.

On constitutional grounds, the father objects to the concurrent hearing on

procedural due process, substantive due process, and equal protection grounds. 

We review these constitutional claims de novo.7 Procedural due process entitles 

the father to “notice and a meaningful opportunity to be heard.”8 The father does 

not explain how the concurrent hearing deprived him of notice or a meaningful 

opportunity to be heard, as the father had notice of and fully participated in the 

entire concurrent hearing. Thus, we find no violation of his procedural due process 

rights. 

Substantive due process prohibits state action that is not “narrowly tailored 

to serve a compelling state interest” or that “shocks the conscience or otherwise 

offends judicial concepts of fairness and human dignity.”9 The father asserts the 

concurrent hearing created “risks of hurrying, miscommunications, and failures by 

 

7

In re C.M., 652 N.W.2d 204, 209 (Iowa 2002).

8

In re K.M., 653 N.W.2d 602, 607 (Iowa 2002).

9

Id.
6

witnesses, parties and counsel to appropriately address testimony and arguments 

towards one hearing or issue versus another.” While parental rights are 

fundamental and terminating parental rights always invokes substantive due 

process, substantive due process is satisfied if at least “one of the ‘statutory 

grounds for termination . . . [is] established by clear and convincing evidence.’”10 

Despite the father’s concerns, the concurrent hearing did not prevent the father 

from contesting the statutory grounds for termination. Again, the father fully 

participated in the entire concurrent hearing and, as explained below, the State 

proved a statutory ground for termination. Thus, we find no violation of substantive 

due process. 

Finally, equal protection requires “that similarly-situated persons be treated 

alike.”11 A heightened level of scrutiny applies when government action “classifies 

persons in terms of their ability to exercise a fundamental right.”12 Under this

highest level of scrutiny, “the State must show ‘that the classification is narrowly 

tailored to serve a compelling government interest.’”13 The father asserts he was 

treated differently from parents with separate permanency and termination 

proceedings. Even assuming the father’s claim triggers the highest level of 

scrutiny, our supreme court has found “the State’s interest in obtaining a 

permanent home for a child as soon as possible is a compelling governmental 

 

10 Id. at 608 (alterations in original) (quoting In re D.J.R., 454 N.W.2d 838, 845 

(Iowa 1990)).

11 C.M., 652 N.W.2d at 210 (quoting Bowers v. Polk Cnty. Bd. of Supervisors, 638 

N.W.2d 688, 689 (Iowa 2002)).

12 Id. (quoting In re Det. Of Williams, 628 N.W.2d 447, 452 (Iowa 2001)).

13 Id. (quoting Williams, 628 N.W.2d at 452). 
7

interest.”14 The concurrent hearing allowed the child to be placed in a permanent 

home as soon as possible while providing the father with a full opportunity to 

challenge termination. Thus, we find no equal protection violation. We therefore

reject the father’s constitutional challenges to the concurrent hearing.

B. Reopening the Record

The father argues the juvenile court should have granted his motion to 

reopen the record after the termination order so he could introduce evidence of his 

progress in substance-abuse treatment. “When a juvenile court diligently enters a 

termination order after a hearing, there is generally no basis to complain about a 

discretionary refusal of the juvenile court to reopen the record . . . .”15 The father 

asserts his situation is similar to L.T., where the supreme court found an abuse of 

discretion in denying the parent’s motion to reopen the record based on “the long 

delay between the original hearing and the [parent’s] motion to reopen the record, 

the fact that no final order had been entered, the germaneness of the matters that 

the [parent] sought to introduce, and the juvenile court's willingness to grant a 

similar motion to the State.”16 Most of the factors in L.T. are absent here. Almost 

twenty months passed between the end of the termination hearing and the motion 

to reopen in L.T., compared to only three months here.17 While the father sought 

to introduce germane evidence here, he filed his motion after entry of the 

termination order, and the juvenile court never allowed the State to reopen the 

 

14 Id.

15 In re L.T., 924 N.W.2d 521, 526 (Iowa 2019).

16 Id. at 526–27.

17 See id. 
8

record.18 Also, the concurrent hearing, originally scheduled for October, concluded 

in December, providing the father additional time to introduce evidence of his 

progress. We find no abuse of discretion in denying the father’s motion to reopen 

the record.

III. Statutory Grounds for Termination.

Both parents challenge the statutory grounds for termination. The juvenile 

court terminated the mother’s parental rights under Iowa Code section 

232.116(1)(e), (g), (h), and (l). The court terminated the father’s parental rights 

under section 232.116(1)(h) and (l). “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.”19 We choose to examine 

termination under section 232.116(1)(h).

Under section 232.116(1)(h), the juvenile court may terminate parental 

rights if it finds all of 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.

(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.

 

18 See id.

19 In re A.B., 815 N.W.2d 764, 774 (Iowa 2012).
9

Both parents challenge only the fourth element—that the child could not be 

returned to the parent’s care at the end of the termination hearing without suffering 

adjudicatory harm.

20

The mother argues the child could be returned to her care because she has 

maintained sobriety, is employed, and has housing and all other essentials to meet 

the child’s needs. The mother’s claims of sobriety are wholly unverified, as the 

mother failed to submit to drug testing and has not successfully participated in 

substance-abuse treatment. The mother has been vague about her sobriety 

throughout DHS involvement. Even though the DHS has been involved with the 

mother since December 2018, a DHS worker testified the mother consistently 

claims she has been sober for at most six months and the mother only 

acknowledges past substance abuse. A service provider noted that the mother 

did not appear sober during some interactions, and the mother showed a tendency 

to unexpectedly fall asleep during visits and services throughout DHS involvement. 

The mother inconsistently participated in substance-abuse treatment and was 

involuntary discharged due to lack of attendance. The mother only recently 

reengaged with substance-abuse treatment, and she has still not undergone a

requested mental-health evaluation. Due to ongoing concerns about the mother’s 

mental health and substance abuse, we agree the child cannot be safely placed in

 

20 See D.W., 791 N.W.2d at 707 (interpreting the statutory language “at the present 

time” to mean “at the time of the termination hearing”); In re M.M., 483 N.W.2d 

812, 814 (Iowa 1992) (“[A] child cannot be returned to the custody of the child’s 

parent under section 232.102 if by doing so the child would be exposed to any 

harm amounting to a new child in need of assistance adjudication.”).
10

her care, and the State proved a ground to terminate her parental rights under 

section 232.116(1)(h).

21

Regarding the father, he testified on the final day of the hearing that he was 

still living at the residential treatment facility and unable to live with the child at the 

time. For this reason alone, the child could not be placed in his care at the time of 

the termination hearing, and the father’s challenge fails. However, even if the 

father were living independently in a location where the child could also live, the 

risk of adjudicatory harm is too great to allow the child to be placed in his care.

As with the mother, the DHS requested the father undergo substance-abuse 

and mental-health evaluations and treatment shortly after the child’s birth in 

February 2020. Despite these requests, the father largely failed to engage with 

services until paternity was established in July.22 The father has never undergone 

a mental-health evaluation. The father has not addressed allegations he 

committed domestic violence.23 The father entered substance-abuse treatment in 

August, around the same time the State filed the petition to terminate parental 

 

21 See In re D.H., No. 18-1552, 2019 WL 156668, at *2 (Iowa Ct. App. Jan. 9, 2019) 

(collecting cases and finding failure to meaningfully address mental-health issues

to be a valid basis for terminating parental rights); A.B., 815 N.W.2d at 776 (“We 

have long recognized that an unresolved, severe, and chronic drug addiction can 

render a parent unfit to raise children.”).

22 Given the father’s continued involvement with the mother, his knowledge of her 

pregnancy, his belief that he was the father, his knowledge of the child’s birth, and 

the offering of services to him before paternity was established, we consider the 

father’s efforts before paternity was formally established. See In re T.O., No. 16-

1963, 2017 WL 710560, at *2 (Iowa Ct. App. Feb. 22, 2017) (considering actions 

by the father prior to paternity being established when the father was still involved 

with the mother, knew she was pregnant, suspected he was the father, and was 

offered services).

23 See In re J.R., No. 17-0556, 2017 WL 2684405, at *3 (Iowa Ct. App. June 21, 

2017) (“The threat to children posed by domestic violence in their home may serve 

as the basis for terminating parental rights.”).
11

rights, but the father has not provided a full release of information for the DHS to 

monitor his progress.24 Other than a test soon after the child was born, the father 

has never submitted to drug testing at the DHS’s request. The father offered into 

evidence a printed summary of his drug test results for the treatment facility, which 

shows fourteen negatives and no positives during September and October. 

However, the father has not allowed the DHS to verify the accuracy of this 

summary with the facility. Even assuming the summary is accurate—a dubious 

assumption given the father’s efforts to avoid DHS access to his records—the 

summary does not show the type of tests administered or the substances covered 

by the tests. Accepting as true the father’s testimony that he has maintained 

sobriety since August, he only claims four months of sobriety after he has 

admittedly struggled with substance abuse since he was a teenager. On the final 

day of the termination hearing, the father testified he believes he could take care 

of the child while under the influence, indicating he still does not understand the 

effects of his substance abuse. We recognize the father’s progress in substance-

 

24 There was disagreement during the termination hearing as to whether the father 

provided a release so the DHS could monitor his progress at the substance-abuse 

treatment facility. Despite the father’s testimony that he submitted releases to the 

facility, the DHS worker testified the facility said the father had not authorized the 

release of his information. The father submitted as evidence copies of two 

releases he claims he provided to the facility. Both of these documents only allow 

a partial release of information to the DHS, most notably refusing to release test 

results to the DHS. Even if we assume the father provided these releases to the 

facility and the facility erroneously declined to share some of the father’s 

information, the father still refused to allow the DHS to fully monitor his progress in 

treatment.
12

abuse treatment, but it simply comes too late in the termination process, after the 

father ignored the DHS’s offered services for months.

25

Due to the father’s living situation and ongoing substance-abuse and 

mental-health concerns, we agree the child could not be returned to his care, and 

the State proved a ground to terminate his parental rights under section 

232.116(1)(h).

IV. Additional Time for Reunification

Both parents argue the juvenile court should have granted their requests for 

additional time for reunification.26 In granting an extension, the court must 

“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.”27 

However, “[w]e will not gamble with a child’s future by asking [the child] to 

continuously wait for a stable biological parent, particularly at such a tender age.”28 

In evaluating the parents’ requests for additional time, we recognize the 

termination hearing was originally scheduled to begin in October and concluded in 

 

25 See C.B., 611 N.W.2d at 495 (“Time is a critical element. A parent cannot wait 

until the eve of termination, after the statutory time periods for reunification have 

expired, to begin to express an interest in parenting.”). 

26 See Iowa Code §§ 232.117(5) (permitting the court to enter a permanency order 

pursuant to section 232.104 if the court decides to not terminate parental rights); 

see also id. § 232.104(2)(b) (establishing a permanency option to authorize a sixmonth extension of time if the court determines “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”). 

27 Id. § 232.104(2)(b).

28 In re D.S., 806 N.W.2d 458, 474 (Iowa Ct. App. 2011).
13

December, providing the parents with an additional two months to demonstrate 

their progress.

The mother has ongoing mental-health and substance-abuse concerns, as 

described above. She has not addressed her mental-health issues. She has 

sporadically addressed her substance abuse and only recently reengaged with 

substance-abuse treatment. Therefore, we are not confident the need for removal 

will no longer exist after an additional six months, and we agree with the denial of 

the mother’s request for additional time.

At first glance, the father appears to state a better case for a six-month 

extension. He was in treatment at the time of the termination hearing, supporting 

his claim that some additional time is warranted. However, after a deeper look, we 

reject the father’s claim as well. Like the mother, the father has ongoing mentalhealth and substance-abuse concerns. As explained above, the father’s four 

months of progress in substance-abuse treatment comes too late after failing to 

engage in services for the first five months of the child’s life. We also take into 

account that the father has been at least wily, if not downright obstructive, in his 

efforts to keep the DHS from having full access to his substance-abuse treatment 

details. Considering the child’s need for permanency and the father’s delay in 

seeking treatment for his long-standing substance-abuse issues, we are not 

confident the need for removal will no longer exist after an additional six months. 

So, we agree with the denial of the father’s request for additional time.

V. Reasonable Efforts

For his final issue, the father argues the juvenile court should have ordered 

the DHS to provide him with additional reunification services as part of his 
14

challenge to the DHS’s obligation to make reasonable efforts.

29

 The father filed a 

request for services right after paternity was established. The father filed a motion 

for reasonable efforts about three months later, which was before the termination 

hearing. The motion renewed his earlier request for services. The court denied 

his motion for reasonable efforts at the same time it ordered the termination of his

parental rights. 

The DHS 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.”30 

This “reasonable efforts requirement is not viewed as a strict substantive 

requirement of termination. Instead, the scope of the efforts by the DHS to reunify 

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

termination which require reunification efforts.”

31

 “The State must show 

reasonable efforts as a part of its ultimate proof the child cannot be safely returned 

to the care of a parent.”

32

 

The DHS offered numerous services to the father, including a child 

protective assessment; flex funds; parenting curriculum; visitation; mental-health

 

29 Within a heading in her petition to us, the mother also mentions she should have 

been provided additional services. However, she makes no argument on a 

reasonable-efforts issue. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite 

authority in support of an issue may be deemed waiver of that issue.”). Also, it 

does not appear the mother requested additional services or otherwise challenged 

the DHS’s efforts prior to the termination hearing. See C.B., 611 N.W.2d at 493–

94 (“We have repeatedly emphasized the importance for a parent to object to 

services early in the process so appropriate changes can be made.”). For these 

reasons, the mother has not properly presented a reasonable-efforts claim on 

appeal. Even if the mother did properly raise a reasonable-efforts challenge, we 

would reject her challenge for the same reasons we reject the father’s challenge.

30 Iowa Code § 232.102(7). 

31 C.B., 611 N.W.2d at 493. 

32 Id.
15

evaluation and treatment; and substance-abuse evaluation and treatment. As 

explained above, the father failed to take full advantage of these offered services.33 

Furthermore, the DHS provided some of the services the father requested in his 

initial request when he reengaged with the DHS, including visitation and the 

parenting curriculum. The father particularly complains about the frequency of his 

visitation with the child, but the DHS worker testified the father often refused 

visitation before paternity was established and his treatment facility prevented him 

from attending visitation during the orientation phase. Considering all of the 

services provided to the father and his failure to take full advantage of those 

services, we find reasonable efforts were made to avoid out-of-home placement, 

but placement with the father could not occur despite those reasonable efforts. 

The failure to provide additional services does not prevent termination of the 

father’s rights.

VI. Conclusion

Due to ongoing concerns about the parents’ mental health and substance 

abuse, we find the State proved a statutory ground for termination, and we reject 

their requests for an additional six months for reunification. We also reject the 

father’s statutory and constitutional objections to holding concurrent permanency 

and termination proceedings, find no abuse of discretion in denying the father’s 

 

33 See In re C.P., No. 2018 WL 6131242, at *3 (Iowa Ct. App. Nov. 21, 2018) 

(finding a parent’s “failure to use the services provided defeats [a] reasonableefforts claim”).
16

motion to reopen the record, and conclude reasonable efforts were made to avoid 

out-of-home placement.

AFFIRMED ON BOTH APPEALS.