IN THE COURT OF APPEALS OF IOWA

No. 19-0296

Filed June 5, 2019

IN THE INTEREST OF A.L.,

Minor Child,

A.L., Father,

Appellant,

D.W., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Colin J. Witt, District 

Associate Judge.

A mother and father separately challenge the termination of their parental 

rights. AFFIRMED ON BOTH APPEALS.

Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant 

father.

Elizabeth A. Ryan of Benzoni Law Office, P.L.C., Des Moines, for appellant 

mother.

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

Attorney General, for appellee State.

Chuck Fuson of Youth Law Center, Des Moines, attorney and guardian ad 

litem for minor child.

Considered by Vogel, C.J., and Mullins and Bower, JJ.
2

MULLINS, Judge.

A mother and father separately challenge the termination of their parental 

rights to their minor child. 

I. Background Facts and Proceedings

The mother and father are the parents of A.L., born in July 2015. The child 

came to the attention of the Iowa Department of Human Services (DHS) in January 

2017. As the mother was in the process of being arrested for operating a motor 

vehicle while intoxicated, she disclosed to police that she had left her five children 

unattended in a hotel room. The children’s ages ranged from ten years old to one

year old, the youngest being the child in interest.

1

 When police arrived at the hotel, 

they found the children in a room in deplorable condition. Soiled diapers, dirty 

laundry, and trash littered the floor; the room had a foul odor; mattresses were torn 

apart; and electrical wires were exposed. The younger children’s diapers were 

soiled and had not been changed for several hours. Police believed the mother 

had likely left the children unattended on previous occasions. The police also 

believed the older children’s responses to questions suggested the mother 

coached the children on what to say. The mother was subsequently charged with 

multiple counts of child endangerment and jailed. After its investigation, DHS 

returned founded child-abuse assessments against the mother for denial of critical 

care in relation to each child.2 

 

1 The father in this case is only the father of A.L. 

2 DHS previously returned several founded child-abuse assessments against the mother 

in March 2011 for denial of critical care. The mother had allowed an individual charged 

with child endangerment and assault to take care of one of her children. The mother was 

aware the individual was working with DHS regarding issues with his own children. Later, 

DHS returned a founded assessment against this individual after he committed domestic 

violence against the mother when the children were present. 
3

The court ordered the children’s immediate removal from the mother’s care 

and placed the children in the temporary custody of DHS. None of the children’s 

fathers were in a position to have the children placed with them, so the children 

ultimately ended up in foster care. DHS provided supervised visitation for the 

mother and father of A.L. DHS recommended substance-abuse treatment, 

individual therapy, and parenting classes for the mother and recommended 

substance-abuse treatment and individual therapy for the father. 

The court adjudicated A.L., along with the other children, to be a child in 

need of assistance (CINA) in February. Because none of the children’s fathers 

were in a position to care for the children when they were removed from the 

mother’s care, the court also considered this a removal from all the fathers’ care. 

The father of A.L. suffers from several mental-health issues and takes 

medication. He also has a history of drug use, including cocaine, heroin, and 

methamphetamine. The father suffered a stroke when he was twenty-one years 

old due to excessive methamphetamine use. The father attended treatment but 

relapsed in May 2017. He also had a mental breakdown and was subsequently 

hospitalized in a psychiatric unit. The father stopped attending treatment and 

therapy services after claiming his counselor suggested they go buy some 

methamphetamine together. The father struggled with housing and employment. 

After his relapse, the father became inconsistent with his visitation, missing a 

month’s worth of visits. He informed DHS this was due to needing some personal 

time. Due to his behaviors, DHS believed the father had relapsed again. The 

mother reported that domestic violence was present in all of her relationships, 

including with the father. The father denied physically abusing the mother but 
4

admitted the relationship with his paramour was volatile and he had physically 

abused her. He was arrested in June for throwing a brick through his paramour’s 

window.

In June, the mother was arrested for driving while barred as a habitual 

offender and spent over a month in jail. Once released, she was homeless. She 

stayed with family or friends, including an uncle who was an active alcoholic. In 

July, the mother reported she was pregnant. In August, she entered Hope 

Ministries shelter and began engaging in its substance-abuse and mental-health 

services. Due to the mother’s progression in services, her visitation with the 

children increased and ultimately the two oldest children were returned to her care 

in December. The mother also gave birth to another child in December. The three 

youngest children were returned to her care in January 2018. The court 

conditioned the children’s return to the mother’s care on her continued placement 

at Hope Ministries.

After the children were placed with the mother, she struggled to balance her 

treatment with meeting the children’s needs. She often blamed her inability to gain 

insight and attend required classes on the fact that she had six children. The room 

she shared with the children was in disarray and appeared to be on a path to the 

deplorable conditions found in the hotel, which led to the children’s removal and 

DHS’s intervention. In May, the mother was discharged from Hope Ministries after 

being unable to successfully complete its program. She failed to follow through on 

expectations, had unauthorized medication, and failed to take accountability. Due 

to having no housing, the mother became despondent and threatened to kill 

herself. She was hospitalized for a short period of time on a psychiatric evaluation 
5

hold. All the children were again removed from her care. A.L. was placed with the 

paternal grandmother, and the other children were placed in foster care. When 

DHS spoke with the mother about the importance of ongoing therapy, the mother 

reported she had reengaged in mental-health services. However, her therapist 

reported to DHS that she had not seen the mother in over a year and the mother 

failed to attend a recent appointment. The mother then began sessions with a new 

therapist.

The father was incarcerated on two occasions for forgery during the 

proceedings, in December 2017 and August 2018. In its October permanency 

order, the court found the father was not in a position to have custody and that 

both the mother and father were not making reasonable progress to achieve the 

permanency goal of reunification or complying with other provisions of the 

permanency plan. The court modified the permanency goal from reunification to 

termination of parental rights. In December, the State petitioned to terminate both 

parents’ rights. It sought to terminate the mother’s rights pursuant to Iowa Code 

section 232.116(1)(h) and (l) (2018) and the father’s rights pursuant to section 

232.116(1)(b), (e), and (h). 

At the beginning of the termination hearing, the State requested A.L.’s case 

be continued to allow more time for reunification with the parents. The State 

explained that its position on A.L.’s case shifted due to the continuance of A.L.’s 

younger sibling’s case. The State was willing to continue the hearing on A.L. to 

allow the parents time to show consistency in their progress, as both parents had 

been taking positive steps. The court refused to continue A.L.’s case, determining 

that A.L. had been out of the parents’ care for approximately eighteen of the last 
6

twenty-four months and needed permanency. Following the hearing, the juvenile 

court terminated the mother’s and father’s parental rights to A.L.3 The mother and 

father separately appeal. 

II. Standard of Review

We review termination-of-parental-rights proceedings de novo. In re A.S., 

906 N.W.2d 467, 472 (Iowa 2018). “We are not bound by the juvenile court’s 

findings of fact, but we do give them weight, especially in assessing the credibility 

of witnesses.” Id. (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa 2014)). “Our 

primary concern is the best interests of the child.” In re J.E., 723 N.W.2d 793, 798 

(Iowa 2006). 

“[R]eview of termination of parental rights under Iowa Code chapter 232 is 

a three-step analysis.” In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). We must 

first determine if “any ground for termination under section 232.116(1) has been 

established.” Id. If a “ground for termination has been established, then we 

determine whether the best-interest framework as laid out in section 232.116(2) 

supports the termination of parental rights.” Id. at 219–20. “Finally, if we do find 

that the statutory best-interest framework supports the termination of parental 

rights, we consider whether any exceptions in section 232.116(3) apply to preclude 

termination of parental rights.” Id. at 220. 

 

3 The mother’s parental rights to four older children were terminated at the hearing. The 

court continued the termination hearing of the mother’s youngest child.
7

III. Analysis

A. Mother’s Appeal

The mother challenges the sufficiency of the evidence supporting the 

statutory grounds for termination cited by the juvenile court, section 232.116(1)(h)

and (l). “On appeal, we may affirm the juvenile court’s termination order on any 

ground that we find supported by clear and convincing evidence.” In re D.W., 791 

N.W.2d 703, 707 (Iowa 2010). We choose to focus on paragraph (h), which

requires the State to establish:

(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.

Iowa Code § 232.116(1)(h). “At the present time” has been interpreted to mean 

“at the time of the termination hearing.” D.W., 791 N.W.2d at 707.

The mother does not challenge the State’s establishment of the first three 

elements. She challenges the establishment of the fourth, claiming there was 

insufficient evidence presented that the child could not be returned to her custody 

at the time of the termination hearing. She also argues she received ineffective 

assistance of counsel from her attorney during the termination hearing because 

the attorney failed to address or correct the court’s perception that the mother’s 

nod during the court’s summation of A.L.’s case was indicating her agreement with 

the court’s summation. 
8

“The test for ineffective assistance of counsel in termination cases is 

generally the same as in criminal proceedings.” In re A.R.S., 480 N.W.2d 888, 891 

(Iowa 1992). “In order to establish an ineffective assistance claim, it must be 

shown that (1) counsel’s performance is deficient, and (2) actual prejudice 

resulted.” Id. “We presume that counsel’s conduct falls within the range of 

reasonable professional competency,” and it is the mother’s burden to prove 

ineffective assistance. Id. 

Near the conclusion of the hearing, the court made several findings on the 

record:

[The mother] is doing well. She is making mental health therapy 

gains, better than she has her entire life. But I interpret her 

statement, which was unsolicited when she said I could not have 

both children in my care today. I agree that would be too much. That 

was a statement she was making from maintaining her mental health. 

And I see her nodding. 

 

The mother claims that her nod indicated her agreement to a staggered 

return of the two youngest children to her care, not that she agreed she could not 

care for both of the children at the time of the hearing. However, immediately prior 

to the mother’s nod, the court clarified with the mother’s attorney about the 

mother’s position and the following exchange occurred:

[COUNSEL]: Thank you, Your Honor. [The mother] is ready 

to have her children returned to her care today, Your Honor. She’s 

addressing her mental health needs and working—

THE COURT: Well, your client just said she could not have 

both returned to her care today at the same time.

[THE MOTHER]: Correct.

We find the mother has not established deficient performance as the mother’s 

attorney did not need to address the nod or correct the court’s perception when 

the mother herself verbally agreed with the court’s statement. There is no 
9

evidence the court misinterpreted the mother. Accordingly, the ineffectiveassistance-of-counsel claim fails. 

Further, while the mother argues that the court’s willingness to return her 

youngest child to her care at a future date is evidence that A.L. should have been 

returned to her care at the time of the termination hearing, we do not agree. The 

court was not willing to return the youngest child at the time of the termination 

hearing because it wanted more visitation to occur before the child would be 

returned to ensure a positive transition. In contrast with the youngest sibling, A.L.’s 

case has been pending and A.L. had been out of the mother’s care for a much 

longer period of time. 

During the pendency of A.L.’s case, the mother has not been able to show 

sustained progress and stability when any of her children have been in her care. 

When the children were returned to the mother’s care, her progress in treatment 

waned and she was unable to balance taking care of her children and her issues. 

While the mother has engaged in mental-health services, she did not do so 

consistently until a few months prior to the termination hearing. Based upon our 

de novo review of the record, we find sufficient evidence was presented to 

establish A.L. could not be returned to the mother’s care at the time of the 

termination hearing. 

The mother also contends termination of her parental rights to A.L. is not in 

the child’s best interest. In our consideration of whether termination is in the child’s 

best interest, “there is no all-encompassing best-interest standard.” In re P.L., 778 

N.W.2d 33, 40 (Iowa 2010). We “give primary consideration to the child’s safety, 

to the best placement for furthering the long-term nurturing and growth of the child, 
10

and to the physical, mental, and emotional condition and needs of the child.” Iowa 

Code § 232.116(2). “Insight for the determination of the child’s long-range best 

interests can be gleaned from ‘evidence of the parent’s past performance for that 

performance may be indicative of the quality of the future care that parent is 

capable of providing.’” In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (quoting In re 

Dameron, 306 N.W.2d 743, 745 (Iowa 1981)). 

The mother admitted she has not remained consistent and stable with 

following through with services and treatment during the pendency of this case. 

She recognized that she has had periods of doing well followed by periods where 

she struggled. We, like the district court, recognize the progress the mother has 

made over the pendency of this case, but the mother has not demonstrated the 

sustained progress that would warrant a delay in A.L.’s permanency. Throughout 

this case, A.L. has been in multiple placements. Given the child’s young age, he 

needs “permanency, emotional stability and to attach as part of a family.” In re 

E.B.L., 501 N.W.2d 547, 551 (Iowa 1993). “We will not gamble with [A.L.’s] future 

by asking [the child] to continuously wait for a stable biological parent, particularly 

at such a tender age.” In re D.S., 806 N.W.2d 458, 474 (Iowa Ct. App. 2011). 

Based upon our review of the record, we find termination is in the child’s best 

interest.4 

 

4 The mother’s appellate brief provided the court with information outside of the closed 

record. We do not consider those facts that were not a part of the district court’s record in 

reaching our conclusion. See Iowa R. App. P. 6.801 (the record on appeal consists of “the 

original documents and exhibits filed in the district court case . . . , the transcript of 

proceedings, if any, and a certified copy of the related docket and court calendar entries 

prepared by the clerk of the district court.”); In re Marriage of Keith, 513 N.W.2d 769, 771 

(Iowa Ct. App. 1994) (“[A]ny matters outside the record on appeal are disregarded.”). 
11

B. Father’s Appeal

The father likewise challenges the sufficiency of the evidence supporting 

the statutory grounds for termination of his parental rights under Iowa Code section 

232.116(1)(b), (e), and (h). As to paragraph (h) he only challenges the 

establishment of the final element—that the child could not be returned to his care 

at the time of the termination hearing. He contends that A.L. could have been 

returned to him at the time of the termination hearing or within a reasonable amount 

of time. 

At the time of the termination hearing, the father had just attended 

orientation at a new job and did not have a stable residence. The father had “couch 

surfed” with his friends and, at the time of the termination hearing, he was staying 

at his current paramour’s apartment. The father is not listed on the lease. The 

apartment has only one bedroom, and the father admitted it would be crowded 

since it would be the father, his paramour, and their daughter, in addition to A.L. if 

the child was returned to his care. The father admitted A.L. would possibly have 

to sleep in the same bed with him and his paramour. His testimony throughout the 

termination hearing indicated that he wanted the child returned to the mother’s 

care—not his own. Further, the father only completed substance-abuse treatment 

successfully just prior to the termination hearing. He completed multiple 

substance-abuse evaluations during the pendency of this case, but his prior 

attempts to follow through and complete a treatment program failed. Like the 

mother, the record indicates the father has a history of cycling through periods of 

doing well and then doing poorly; he has been unable to sustain a long period of 

progress. Only a few months prior to the termination hearing did the father begin 
12

to respond to services. “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.” C.B., 611 N.W.2d at 495. Upon our de novo review, we find 

sufficient evidence to establish that the child could not be returned to the father at 

the time of the termination hearing. 

To the extent the father questions whether termination is in the child’s best 

interests, the father, like the mother, has not shown consistent and sustained 

progress in dealing with his issues. He was incarcerated multiple times throughout 

the pendency of this case, interrupting his ability to be a consistent presence in the 

child’s life. Further, he only recently was able to complete a substance-abuse 

treatment program successfully. The father has not had stable employment and 

housing throughout the pendency of the case. At the time of the termination 

hearing, he was staying with his paramour and his daughter and the father 

admitted the home would be crowded if A.L. was returned to his custody. Upon

our review, we find termination is in the child’s best interest.

To the extent that the father is requesting additional time for reunification, 

section 232.104(2)(b) permits the juvenile court to continue the child’s placement 

for an additional six months if the court finds “the need for removal . . . will no 

longer exist at the end of the additional six-month period.” Upon our de novo 

review, we decline to delay the child’s permanency any further, and we decline to 

grant the father an extension. 

Neither parent contends that an exception to termination pursuant to section 

232.116(3) warrants a different result. Therefore, we do not need to address that 
13

step. See P.L., 778 N.W.2d at 40. Accordingly, we affirm the termination of both 

parents’ parental rights.

AFFIRMED ON BOTH APPEALS.