IN THE COURT OF APPEALS OF IOWA

No. 20-0426

Filed June 17, 2020

IN THE INTEREST OF N.W.,

Minor Child,

T.N., Mother,

Appellant,

D.W., Father,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Thomas J. Straka, 

Associate Juvenile Judge.

A mother and father separately appeal the termination of their parental 

rights to one child under Iowa Code chapter 232 (2019). AFFIRMED ON BOTH 

APPEALS.

Gina L. Kramer of Reynolds & Kenline, L.L.P., Dubuque, for appellant 

mother.

William A. Lansing of William A. Lansing, P.C., Dubuque, for appellant 

father.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant 

Attorney General, for appellee State.

Patricia Reisen-Ottavi, Dubuque, attorney and guardian ad litem for minor 

child.

Considered by Bower, C.J., and Greer and Ahlers, JJ.
2

GREER, Judge.

A mother and father separately appeal the termination of their parental 

rights to one child under Iowa Code chapter 232 (2019). After considering the 

parties’ arguments, we affirm the order terminating parental rights.

I. Background Facts and Proceedings.

D.W. is the father and T.N. is the mother of N.W., born in March 2019. The 

parents, as a result of their substance-abuse issues, have a history of involvement 

with the Iowa Department of Human Services (DHS) for all of their children. Two 

weeks before N.W. was born, the parents did not contest the termination of their 

rights to another child, born in 2017. That child, who was born with 

methamphetamine in her system, was adopted by the mother’s sister. The father 

has an eight-year-old child from a previous relationship who lives with the child’s 

mother and visits the father on some weekends. The mother has four older 

children who live with their father in Elgin, Iowa, who she visits twice monthly. 

In early March 2019, DHS received a report that the parents were using 

illegal substances while caring for the father’s then seven-year-old child. This child 

reported that T.N. was “going crazy” and he could not wake his father. This 

resulted in a founded child-abuse assessment for denial of critical care against 

both D.W. and T.N. This incident did not lead to any juvenile court proceedings.

DHS most recently became involved with this family after N.W. was born.

The child was born prematurely after the mother experienced a stroke at thirty-two 

weeks pregnant. The stroke left the mother vision impaired. The mother tested 

positive for methamphetamine at the hospital, but the child tested negative. 

Because of her prematurity, the child remained hospitalized for over a month. As 
3

the child was nearing the discharge date, the hospital, after being unable to contact 

the parents for two weeks, contacted DHS. DHS then began removal proceedings. 

The child was removed from the parents’ custody on April 22 and placed in 

a maternal cousin’s care about 120 miles from the parents’ home in Dubuque. The 

child was adjudicated in need of assistance in May.

Throughout the case, the overarching challenge was the parents’ struggle 

with sobriety. The mother denied using methamphetamine before N.W.’s birth but 

acknowledged a relapse in April, after the child was born. She tested positive for 

methamphetamine in July. Also in July, the mother started substance-abuse 

treatment. She successfully completed the program three months later. But the 

mother tested positive for methamphetamine in August and September. The 

mother claimed all of the positive results were false positives resulting from her 

blood-pressure medication. To further complicate matters, the parents have also 

tested positive for THC during this case. The father acknowledged his use of 

marijuana; the mother denied ever using marijuana but acknowledged being 

around others using it. 

On a positive note, the parents participated in weekly four-hour supervised 

visits with the child, and by all accounts the visits have gone well. But the parents 

were given the opportunity to have additional visits with the child by contacting the 

relative placement directly, yet the parents did not set up those visits. The parents 

never progressed beyond supervised visits, and the child never returned to the 

parents’ care, even on a trial basis, because of the parents’ ongoing substanceabuse concerns. 
4

The State filed the termination petition on October 7. Both parents tested 

positive for THC in early January 2020. The court held the termination hearing on 

January 30, 2020. 

At the termination hearing, the court received deposition testimony from two 

experts about whether it was possible the mother was having false positive results

for methamphetamine on her drug tests because of her blood-pressure 

medication. Both experts testified that there are two kinds of methamphetamine, 

the “D” form, which is illegal methamphetamine, and an “L” form, which can appear 

on a drug test when a person uses certain over-the-counter substances, such as 

Vicks inhalers ingested in large quantities. 

The mother’s expert, Dr. Lee Berman, was her treating psychiatrist. Dr. 

Berman opined that in his clinical experience he has seen people with false 

positive drug screens while taking the same blood pressure medication as the 

mother. Dr. Berman generally referenced peer-reviewed studies showing the 

possibility for false positives, but he could not cite or produce any of this literature 

by name. 

The State’s expert, Dr. David Kuntz, is the executive director for analytical 

toxicology and the laboratory director at Clinical Reference Laboratory in Kansas. 

Dr. Kuntz has a master’s degree and doctorate degree in pharmaceutical sciences, 

has specialized training in forensic toxicology, is a fellow of the American Board of 

Forensic Toxicologists, and has over thirty years of experience in the field of 

forensic toxicology. Dr. Kuntz opined the mother’s blood pressure medication was 

not a “drug[] of concern to create any type of false positive for methamphetamine, 
5

either as a D isomer or L isomer.” He was unaware of any studies linking the

blood-pressure medication to a false positive for methamphetamine. 

The court noted that the test used in the mother’s earlier positive results did 

not differentiate between “D” and “L” forms of methamphetamine. Because the lab 

had retained the samples and they could be retested, the court authorized more 

specific drug testing. The results of the retesting of samples were still pending at 

the time of the hearing. The court, by agreement of the parties, left the record 

open after the termination hearing to receive the results of the testing. The results 

came back positive for the “D” form of methamphetamine, proving the mother was 

using illegal substances.

On February 24, the court entered an order terminating both the mother and 

father’s parental rights under Iowa Code section 232.116(1)(g), (h), and (l). Both 

the mother and father appeal. 

II. Standard of Review.

We review termination-of-parental-rights proceedings de novo. In re L.T., 

924 N.W.2d 521, 526 (Iowa 2019). “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.” In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). Our primary concern 

is the best interests of the child. In re M.D., 921 N.W.2d 229, 232 (Iowa 2018). 

III. Father’s Appeal.

On appeal, the father does not contest any of the grounds for termination. 

Instead, he claims it violated his due process rights under the United States and 

Iowa Constitutions to require him to file the petition on appeal prior to receiving 

and reviewing the transcript of the termination hearing; DHS did not make 
6

reasonable efforts toward reunification; and the court should have granted him an 

extension of time to reunify with the child. We will address his claims in turn.

A. Due Process. The father first argues it violates his due process rights 

under the United States and Iowa Constitutions to require him to file a petition on 

appeal before receiving a transcript of the termination hearing. Our court has 

previously considered and rejected this argument. See In re T.S., 868 N.W.2d 

425, 432–34 (Iowa Ct. App. 2015); In re R.K., 649 N.W.2d 18, 20–22 (Iowa Ct. 

App. 2002). The Iowa Supreme Court reached a similar conclusion about the lack 

of full briefing in termination appeals. See In re C.M., 652 N.W.2d 204, 212–13 

(Iowa 2002). We likewise reject the father’s due process challenge.

B. Reasonable Efforts. The father next argues DHS failed to provide him 

with resources for anxiety medication and inpatient substance-abuse treatment. 

The father raised this argument for the first time at the termination hearing. “[T]he 

State has the obligation to provide reasonable reunification services,” but the 

parent “ha[s] the obligation to demand other, different, or additional services prior 

to the termination hearing.” In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999). 

“Where a parent ‘fails to request other services at the proper time, the parent 

waives the issue and may not later challenge it at the termination proceeding.’” 

T.S., 868 N.W.2d at 442 (citation omitted). The father’s failure to raise a 

reasonable-efforts complaint before the termination hearing waives the issue on 

appeal. 

C. Extension of Time. Finally, the father argues he should have been 

granted six more months to pursue reunification with the child. Iowa Code section 

232.117(5) allows the court to grant an extension of time if parental rights are not 
7

terminated following the termination hearing. But to continue placement for six 

more months, the juvenile court must determine that “the need for removal will no 

longer exist at the end of the extension.” In re A.A.G., 708 N.W.2d 85, 92 (Iowa 

Ct. App. 2005). “The judge considering [the extension] should however 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.” Id. at 92–93 (citation 

omitted).

Here, the court declined to grant the father an extension of time because it 

could not determine that the need for removal would no longer exist at the end of 

the extension. The court pointed to the parents’ lack of progress throughout the 

case, and it noted that it had granted continuances for discovery and depositions 

during the termination case and the parents did not make any progress in spite of 

the additional time allowed. The parents never progressed beyond fully supervised

visits, did not exercise any additional visitation the child’s caregiver offered, and

continued to use illegal substances. We conclude the juvenile court properly 

declined to grant the father an extension of time to reunify with his child. Finding 

all the father’s arguments without merit, we affirm the juvenile court order 

terminating his rights to N.W.

IV. Mother’s Appeal.

On appeal the mother claims the State failed to prove grounds for 

termination and DHS failed to make reasonable efforts toward reunification.

A. Grounds for Termination. The court terminated the mother’s parental

rights under Iowa Code section 232.116(1)(g), (h), and (l). “On appeal, we may 

affirm the juvenile court’s termination order on any ground that we find supported 
8

by clear and convincing evidence.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). 

As for section 232.116(1)(h),1the mother challenges only the final element: that 

“[t]here 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)(4).

The mother has a long history of DHS involvement as a result of her 

methamphetamine use. She continued to test positive for methamphetamine and 

THC throughout this case despite her successful discharge from substance-abuse 

treatment. Even more troubling is her denial of her substance-abuse issues. She 

instead blames her positive drug screens for methamphetamine on her blood 

pressure medication, even after the more specific drug testing dispelled that claim, 

and her positive tests for THC on other people. The court found the “mother’s 

claims that her positive test results were due to her medications to be lacking in 

credibility and scientific support.” 

Together with the mother’s drug use, concerns about the father’s drug use

and paternal grandfather’s criminal activities involving drugs also prevented the 

child’s return to the mother’s care. The mother and father continue to live together, 

 

1

Iowa Code section 232.116(1)(h) permits the court to terminate parental rights if 

the court 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.
9

along with the child’s paternal grandfather. The father acknowledged using 

marijuana throughout this case, including shortly before the termination hearing. 

During the pendency of the termination case, the grandfather pled guilty to 

controlled substance violations involving methamphetamine. The juvenile court 

took judicial notice of the grandfather’s criminal case file. 

After considering the evidence presented, we conclude there was clear and 

convincing evidence that the child could not be returned to the mother’s custody 

at the time of the termination hearing. For that reason, the State proved grounds 

for termination under section 232.116(1)(h), and we need not consider the 

mother’s arguments on subsections (g) or (l).

B. Reasonable Efforts. The mother next argues DHS failed to make 

reasonable efforts toward reunification by failing to provide her with additional 

visitation with the child and by placing the child 120 miles away rather than looking 

for a foster home closer to Dubuque. The mother contends that her vision 

impairment, financial condition, and distance from the child all impacted her ability 

to attend visits.

DHS must “make every reasonable effort” to reunify the parent and child “as 

quickly as possible consistent with the best interests of the child.” In re C.B., 611 

N.W.2d 489, 493 (Iowa 2000) (quoting Iowa Code § 232.102(7) (1995)); see also

Iowa Code § 232.102(9) (2019). “[W]hat constitutes reasonable services varies 

based upon the requirements of each individual case.” In re C.H., 652 N.W.2d 

144, 147 (Iowa 2002). Reasonable efforts “includes visitation designed to facilitate 

reunification while providing adequate protection for the child.” C.B., 611 N.W.2d 
10

at 493. “[T]he nature and extent of the visitation is always controlled by the best 

interests of the child.” In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App. 1996). 

Here, the parents opted to have one longer visit per week rather than two 

shorter visits because of the distance. In a cycle of the parents’ making, DHS 

would not progress visits so long as the parents continued to test positive for illegal

substances, and because the parents continued to test positive, they did not 

progress beyond fully supervised visits. 

The parents were, however, given options to have additional contact with 

the child. The DHS caseworker offered to allow the parents to ride along with her 

as she picked up and returned the child for visits. This would have allowed the 

parents to spend additional time with the child. The parents declined. DHS also 

gave the parents the option of setting up additional weekend visits with the relative 

caring for the child. The parents again declined. The relative offered to speak with 

the parents on the phone daily, and, though the child is young, the relative also 

offered to facilitate daily phone contact between the parents and the child. The 

parents did not take advantage of the caregiver’s offer for contact. When the 

mother was asked why the parents did not take advantage of an extra Sunday visit

they had been offered, she testified:

It just didn’t work out for our schedule. We had a visit Saturday until 

like 3:15 and then that would consist of having to drive all the way up 

there and back, and we would have had [the father’s older child] with 

us as well and he had school Monday morning. He has daycare 

anyway.

When asked why she did not use extra visits the caregiver offered, the 

mother testified:
11

Things just feel very uncomfortable between [the caregiver] and I and 

as well as I only get limited time with my other kids as well for visits 

due to everybody’s schedule, and it really makes things hard to pick 

and choose on what children I want to see and what children I can’t.

The court found DHS made reasonable efforts regarding visitation. We 

agree. We acknowledge that the distance and the mother’s vision impairment 

were barriers, but the mother was offered many options to have more contact with 

the child and declined. Even so, the mother’s ongoing substance abuse was the 

biggest barrier to DHS allowing more, and unsupervised, visitation with the child. 

We conclude DHS made reasonable efforts. Finding the mother’s claims without 

merit, we affirm the termination of her parental rights.

V. Disposition. 

We affirm the juvenile court order terminating the mother and father’s 

parental rights to N.W.

AFFIRMED ON BOTH APPEALS.