IN THE COURT OF APPEALS OF IOWA

No. 17-1184

Filed September 27, 2017

IN THE INTEREST OF M.C.,

Minor Child,

K.S., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County, DeDra L. 

Schroeder, Judge.

The mother appeals from an order terminating her parental rights pursuant 

to Iowa Code chapter 232 (2017). AFFIRMED.

Jane M. Wright, Forest City, for appellant mother.

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

Attorney General, for appellee State.

Crystal L. Ely of North Iowa Youth Law Center, Mason City, guardian ad 

litem for minor child.

Considered by Danilson, C.J., and Tabor and McDonald, JJ.
2

MCDONALD, Judge.

The juvenile court terminated Kelly’s parental rights in her child, M.C., 

pursuant to Iowa Code section 232.116(1)(e) and (h) (2017). On appeal, Kelly 

argues: (1) there was not clear and convincing evidence to terminate her rights 

pursuant to section 232.116(1)(e); (2) the Iowa Department of Human Services

(IDHS) failed to make reasonable efforts towards reunification; (3) the juvenile 

court should have granted a six-month extension of time to work toward 

reunification; (4) termination of Kelly’s parental rights was not in the best interest 

of M.C.; and (5) the juvenile court should have preserved the parent-child 

relationship pursuant to section 232.116(3).

I.

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

A.M., 843 N.W.2d 100, 110 (Iowa 2014). The legal framework for termination 

appeals is well established and need not be repeated in full herein. See id.; In re 

M.W., 876 N.W.2d 212, 219–20 (Iowa 2016) (stating review is de novo and 

setting forth the applicable “three-step inquiry”). 

A.

Kelly first challenges the sufficiency of the evidence supporting termination 

of her parental rights pursuant to Iowa Code section 232.116(1)(e). But she does 

not challenge the sufficiency of the evidence authorizing termination of her 

parental rights pursuant to section 232.116(1)(h). “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). 
3

We conclude there is clear and convincing evidence supporting the 

termination of Kelly’s rights pursuant to section 232.116(1)(h). As relevant here, 

the State must prove the child cannot be returned to the custody of the child’s 

parent at the time of the termination. See Iowa Code 232.116(1)(h)(4). To make 

this determination, we ask 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 id.; In re M.M., 483 N.W.2d 812, 814 (Iowa 1992). “We have 

interpreted this to require clear and convincing evidence the children 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).

IDHS has been involved with this family for some period of time with little 

success in resolving the issues giving rise to State intervention. Kelly is the 

biological mother of A.C. and M.C. A.C. was removed from Kelly’s care in 

October 2015, shortly after A.C. tested positive for controlled substances. M.C. 

was born in July 2016. Like A.C., M.C. tested positive for controlled substances. 

M.C. was removed from Kelly’s care two days after birth and placed in the same 

foster home as A.C. and has resided there since birth. Despite the receipt of 

numerous services, Kelly failed to show the ability to provide care for her 

children, and her rights in A.C. were terminated in September 2016. This court 

affirmed the termination of parental rights. See In re A.C., No. 16-1636, 2017 WL 

512732, at *1 (Iowa Ct. App. Feb. 8, 2017). 

As in many child-welfare cases, the primary obstacle to reunification is the 

use and abuse of controlled substances. Kelly has an extensive history of 
4

involvement with controlled substances. In August 2016, the Northern Iowa drug 

task force found eight bags of methamphetamine, eight bags of marijuana, and 

drug paraphernalia in the home Kelly shared with M.C.’s father, Seth. She 

pleaded guilty to two counts of possession of methamphetamine and marijuana 

in January 2017 and was sentenced to one year of probation. Both of her 

children tested positive for controlled substances at birth. She has been 

unsuccessfully discharged from several substance-abuse treatment programs 

over the life of this case. She most recently left inpatient treatment, against the 

recommendation of her substance-abuse counselor in May 2017. She tested 

positive for methamphetamine and marijuana in April and May 2017, shortly prior 

to the termination hearing. While Kelly did complete a short inpatient program 

immediately prior to the termination hearing in this case, she has not 

demonstrated an ability to maintain sobriety outside of custodial setting for any 

meaningful period of time. Kelly’s substance abuse supports the termination of 

her parental 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 parental rights when parent had history of substance abuse).

Kelly also admittedly cannot provide for the basic needs of the child. She 

lacks employment and financial security. She lacks safe and appropriate 

housing which has been a significant detriment in her reunification efforts. After 

Seth was incarcerated, Kelly began living at the home of her friend. Kelly’s friend 
5

was a known drug user who had rights in her child terminated in 2016. In late 

May 2017, Kelly moved from this home into the home of Seth’s uncle. But Kelly 

still spends most of her time at her friend’s home. This also places M.C. at risk of 

appreciable harm if returned to Kelly’s care. See In re M.W., 876 N.W.2d at 223 

(inappropriate housing and inconsistent employment “reflect[] [a mother’s] prior 

pattern of irresponsibility and lack of planning when it comes to her children”); In 

re R.C., No. 03-1134, 2003 WL 22092677, at *2 (Iowa Ct. App. Sept. 10, 2003) 

(finding among other factors, a father’s “history of unstable housing and 

employment” provided “evidence beyond a reasonable doubt” that the child could 

not be placed in his care).

Little has changed since the prior appeal in which we affirmed the 

termination of Kelly’s parental rights in A.C. There is clear and convincing 

evidence supporting the statutory ground authorizing the termination of Kelly’s 

parental rights.

B.

Kelly contends the State failed to make reasonable efforts towards 

reunification. As part of its ultimate proof, the State must establish it made 

reasonable efforts to return the child to the care of the parent to proceed with 

termination. See Iowa Code § 232.102(9). This requires IDHS to 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.” Id. Reasonable efforts “facilitate 

reunification while protecting the child from the harm responsible for the 

removal.” In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App. 1996). “[W]hat 
6

constitutes reasonable services varies based upon the requirements of each 

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

Kelly has not preserved her challenge to the efforts made in this case. On 

appeal, Kelly has not identified any specific service that should have been 

offered to facilitate reunification. Nor has she identified any particular deficiency 

in the services offered. In the juvenile court, Kelly did not request additional 

services. Nor did she identify any particular deficiency in the services offered. 

“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 C.B., 

611 N.W.2d 489, 493–94 (Iowa 2000). “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 In re S.R., 

600 N.W.2d 63, 65 (Iowa Ct. App. 1999) (concluding it is a parent’s responsibility 

to demand other, different, or additional services in order to preserve error); see 

also Iowa Code § 232.99(3). The failure to request different or better services in 

the juvenile court proceeding waives any challenge to the department’s efforts on 

appeal.

Independently, even if the issue were presented for appellate review, we 

conclude the department made reasonable efforts to facilitate reunification. Kelly 

was offered therapy referrals; mental-health evaluations; substance-abuse 

evaluations; visitation; family safety, risk, and permanency services; drug testing;

family team meetings; housing assistance; a parent partner; transportation 

assistance; family-preservation court; and employment assistance. This is not a 
7

case where the department failed to make reasonable efforts; this is a case 

where the mother failed to avail herself of the services offered.

C.

Kelly argues in light of her recent treatment progress, she is entitled to six 

more months to reunify with M.C. pursuant to Iowa Code section 232.104(2)(b). 

Pursuant to section 232.104(2)(b), the juvenile court may enter an order 

deferring permanency upon a finding the need for the child’s removal will no 

longer exist at the end of the additional six-month period. Iowa Code 

§ 232.104(2)(b). 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. Id. In 

determining whether to grant six additional months, “[t]he court may look at a 

parent’s past performance.” In re T.D.H., 344 N.W.2d 268, 269 (Iowa Ct. App. 

1983). In considering whether deferral is proper, “[t]he judge considering [an 

extension] should . . . 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 this record to conclude removal would no longer be 

necessary at the end of the six-month period. Kelly has a long history of 

methamphetamine and marijuana use. She has completed treatment and 

relapsed before, including during termination proceedings for her older child. 

See In re A.C., 2017 WL 512732, at *1. Her past behavior gives little reason for 

optimism. See In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (stating “we 

must consider the treatment history of the parent to gauge the likelihood the 
8

parent will be in a position to parent the child in the foreseeable future”); T.D.H., 

344 N.W.2d at 269. Kelly’s last-minute improvements are simply not enough to 

demonstrate a reasonable likelihood of sustained success. See 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.”). 

D.

Kelly argues termination of her parental rights was not in the best interest 

of M.C. She notes she has been an appropriate caregiver during supervised 

visitation and claims “[t]here was no evidence presented by the State that M.C. 

has become integrated into the foster family to the extent that the child’s familial 

identify is with the foster family.” “When considering a child’s best interests, we 

‘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.’” In re M.T., No. 14-

2133, 2015 WL 1055518, at *2 (Iowa Ct. App. Mar. 11, 2015) (quoting Iowa Code 

§ 232.116(2)). 

When we consider what placement facilitates the healthy development of 

the child, we have little trouble concluding termination of Kelly’s rights is in the 

best interest of the child. As noted above, Kelly exposed the child and the child’s 

older sibling to controlled substances. She has long struggled with addiction and 
9

has not demonstrated any capacity to maintain sobriety outside a custodial 

setting. Kelly’s substance abuse, among other things, has prevented her from 

maintaining employment and being able to meet the child’s most basic needs for 

food, clothing, and shelter. “It is well-settled law that we cannot deprive a child of 

permanency after the State has proved a ground for termination under section 

232.116(1) by hoping someday a parent will learn to be a parent and be able to 

provide a stable home for the child.” In re A.B., 815 N.W.2d at 777; In re P.L., 

778 N.W.2d 33, 41 (Iowa 2010). We find this argument without merit.

E.

Kelly argues the statutory exceptions set forth in Iowa Code section 

232.116(3) make termination improper in this case. Specifically, she claims 

“there is clear and convincing evidence that the termination would be detrimental 

to the child . . . due to the closeness of the parent-child relationship” 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). The appropriate inquiry is whether the harms associated 

with termination outweigh the benefits to the child. See In re C.L., No. 14-1973, 

2015 WL 408392, at *3 (Iowa Ct. App. Jan. 28, 2015). 

M.C. is a young child who has been out of Kelly’s care since birth. Kelly 

has exercised regular visitation with the child over the life of this case. The 

evidence showed Kelly was appropriate during the visitations. However, Kelly 

never progressed past supervised visitation. In addition, Kelly’s caseworker 

testified she has no more than a “caregiver” relationship with M.C. She does not 

have a strong bond with this child, and the child does not have a strong bond 
10

with Kelly. M.C. looks to the foster parents for comfort and security. We decline 

to exercise this permissive consideration to preserve the parent-child 

relationship. 

II.

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

rights in M.C. 

AFFIRMED.