IN THE COURT OF APPEALS OF IOWA

No. 22-0496

Filed May 11, 2022

IN THE INTEREST OF G.M.,

Minor Child,

Z.M., Father,

Appellant,

E.M., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, 

District Associate Judge.

Parents separately appeal the termination of their parental rights. 

AFFIRMED ON BOTH APPEALS.

J. Joseph Narmi, Council Bluffs, for appellant father.

Kyle E. Focht of Focht Law Office, Council Bluffs, for appellant mother. 

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney 

General, for appellee State. 

Roberta J. Megel of Public Defender Office, Council Bluffs, attorney and 

guardian ad litem for minor child.

Considered by Greer, P.J., Chicchelly, J., and Mullins, S.J. *

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2022).
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MULLINS, Senior Judge.

Parents separately appeal the termination of their parental rights to their 

child, born in 2021, pursuant to Iowa Code section 232.116(1)(e) and (h) (2021). 

While the father entitles his arguments as challenges to the sufficiency of the

evidence supporting the grounds for termination and the juvenile court’s bestinterests determination, the substance of those arguments really only suggests 

that, in light of his cognitive issues, the State failed to make reasonable efforts at 

reunification and he should have been granted additional time at reunification. He 

also requests the application of the statutory exception to termination contained in 

Iowa Code section 232.116(3)(c) based on alleged detriment to the child resulting 

from severance of the parent-child bond. For her part, the mother argues the 

evidence was insufficient to support termination, termination should have been 

averted pursuant to section 232.116(3)(c), and she should have been granted 

additional time to work toward reunification. 

I. Background

The child was born in April 2021. Medical providers observed hostile 

tendencies on the part of the father in the child’s presence at the hospital. Various 

concerns about the parents’ ability to properly care for the child were also noted. 

The mother left the hospital against medical advice and attempted to sign the child 

out of the hospital as well. Due to the father’s anger issues, both parents mentalhealth and cognitive issues, and their inability to provide safe care for the child, a 

physician took the child into protective custody. The Iowa Department of Human 

Services (DHS) became involved, and the State sought and obtained an order for 
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temporary removal. The court subsequently adjudicated the child as in need of 

assistance (CINA), pursuant to Iowa Code section 232.2(6)(c)(2) and (n). 

The parents began attending supervised visits and participating in a safecare program. While the parents consistently attended visits early on, the 

supervisor reported they “often struggle[d]” and frequently needed to be reminded 

to support the child’s head and not leave her unattended. The parents’ attendance 

at visitations waned as time marched forward. The parents made “limited 

progress” toward the safe-care goal of learning how to care for an infant. Their 

progress in safe care did not improve for the remainder of the CINA proceeding. 

The parents did not comply with ongoing recommendations to obtain psychological 

evaluations and IQ testing or complete a parenting course. Their housing situation 

remained unstable despite receiving services aimed at rectifying that situation. 

They blamed their inability to obtain housing on the father’s status as a sex 

offender. The parents eventually moved to Nebraska, which created additional 

difficulties with their ability to attend visits. Ultimately, following a November 

permanency-review hearing, the court found the parents “have been unable to 

demonstrate any substantial progress for reunification” and ordered the State to 

initiate a termination proceeding. The State did so in December.

By the time of the January 2022 termination trial, the mother only recently 

reported she obtained an apartment. The apartment was in Nebraska and had yet 

to be furnished. The father had been released from jail for a probation violation 

the day before the hearing. He had not had any contact with the child for more 

than a month. The social worker testified to her opinion that the child could not be 

returned to either parent’s care because they are incapable of providing adequate 
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care or rudimentary necessities for this young child. She also opined additional 

time would not alleviate the need for removal. The mother testified to her plans to 

comply with prior recommendations regarding services, and she agreed it would 

be “several months” before the child could be returned to her care. The father also 

insisted he was ready to get things squared away as far as servicerecommendations go, and he opined the child could be placed in the parents care 

in “about April.” The mother was also pregnant with a second child, and she was 

due to give birth in May.

The court ultimately terminated the parents’ rights finding, based on the 

parents’ failure to comply with service recommendations aimed at reunification, 

“that both parents have failed to place themselves in a position to safely and 

appropriately care for their minor child.” 

Both parents appeal.

II. Standard of Review

We review termination proceedings de novo. In re A.B., 956 N.W.2d 162, 

168 (Iowa 2021); In re C.Z., 956 N.W.2d 113, 119 (Iowa 2021). Our primary 

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

(Iowa 2006), the defining elements of which are the child’s safety and need for a 

permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011). 

III. Discussion

A. Reasonable Efforts

We begin with the father’s claim that the DHS did not make reasonable 

efforts at reunification. He argues the DHS “threw in the towel on these low 

functioning people without ever really working with them and giving them a 
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chance.” But the father does not offer an opinion on what additional services 

should have been provided. And, as the State points out, the father did not raise 

a complaint regarding the sufficiency of reunification efforts until the termination 

hearing, which is too late to preserve error. See In re A.A.G., 708 N.W.2d 85, 91 

(Iowa Ct. App. 2005). Furthermore, the record belies the father’s reasonableefforts challenge. Various services were court ordered or recommended by DHS, 

and the father did not meaningfully follow through. Of the services in which he did 

participate, he showed little, if any, progress. 

B. Grounds for Termination

As noted, the juvenile court terminated both parents’ rights under Iowa Code 

section 232.116(1)(e) and (h). The mother challenges the sufficiency of the 

evidence supporting both grounds. Without providing a substantive argument 

challenging either ground, the father claims “[t]he State clearly has not met its 

burden of proof in terminating [his] parental rights.” 

“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). Turning our focus to paragraph (h), the mother only 

challenges the final element—that the child could not be returned to her care at 

the time of the termination hearing. See Iowa Code § 232.116(1)(h)(4) (requiring 

clear and convincing evidence that the child cannot be returned to parental custody

at the present time); 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”). At trial, the 

mother cogently agreed, based on her failure to adequately engage in 

recommended services, it would be “several months” before the child could be 
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returned to her care. This concession, which the record supports, “amounts to 

clear and convincing evidence that the child[] could not be returned to her care at 

the time of the termination hearing.” In re A.A., No. 21-1972, 2022 WL 946503, 

at *3 (Iowa Ct. App. Mar. 30, 2022). To the extent the father is claiming the child 

could have been returned to his care at the time of trial, he similarly agreed he 

would need additional time before the child could be returned to his care. The 

record supports his concession as well. We thus find the evidence sufficient to 

authorize termination under section 232.116(1)(h).

C. Best Interests and Statutory Exception

Within her challenge to the sufficiency of evidence supporting the grounds 

for termination, the mother argues termination is not in his child’s best interests, 

see Iowa Code § 232.116(2), due to the closeness of the parent-child bond. See 

id. § 232.116(3)(c). The father passively argues “[t]erminating the parental rights 

of the father would not be in the child’s best interests” and “would be devastating 

to the child.” We address these distinct steps in the three-step termination 

framework separately. See In re A.S., 906 N.W.2d 467, 472–73 (Iowa 2019) 

(discussing three-step termination framework).

In determining whether termination is in the best interests of a child, 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.” Iowa Code § 232.116(2). 

We 

look to the child’s long-range as well as immediate interests. This 

requires considering what the future holds for the child if returned to 

the parents. When making this decision, we look to the parents’ past 
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performance because it may indicate the quality of care the parent is 

capable of providing in the future.

In re J.H., 952 N.W.2d 157, 171 (Iowa 2020) (quoting J.E., 723 N.W.2d at 798).

Both parents acknowledge they have cognitive issues, and the record 

affirmatively establishes these issues affect their ability to properly care for this 

young child. While low mental functioning alone is insufficient to support 

termination, the mental capacity of a parent is a relevant best-interests 

consideration. See Iowa Code § 232.116(2)(a); D.W., 791 N.W.2d at 708. The 

child was removed shortly after her birth, and services specifically aimed at the 

parents’ competency in providing appropriate care were provided. However, those 

ongoing efforts were largely fruitless. While the parents asserted at the termination 

trial that they were ready to comply with all ordered and recommended services in 

order to alleviate the need for removal, waiting that long is too late. In re C.B., 611 

N.W.2d 489, 495 (Iowa 2000). And “we cannot deprive a child of permanency after 

the State has proved a ground for termination” by hoping the parent will rectify the 

situation sometime in the future. See In re A.B., 815 N.W.2d 764, 777 (Iowa 2012). 

On our review, we agree with the juvenile court that the child’s need for stability 

and permanency, and her best interests, are best served by termination. 

Both parents argue termination of their rights would be detrimental to the 

child based on the closeness of the parent-child bonds and termination should 

have been foregone pursuant to Iowa Code section 232.116(3)(c). We first note 

the application of a statutory exception to termination, if applicable, is “permissive, 

not mandatory.” In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (quoting In re A.M., 

843 N.W.2d 100, 113 (Iowa 2014)). It is true the parents have a strong attachment 
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to the child, but the child’s bond with the parents can only be described as minimal 

at best. In any event, we conclude the parents failed to meet their burden to show 

“that the termination would be detrimental to the child . . . due to the closeness of 

the parent-child relationship,” especially given the child’s young age and removal 

from both parents for most of her life. See Iowa Code § 232.116(3)(c); see also 

A.S., 906 N.W.2d at 476 (“[T]he parent resisting termination bears the burden to 

establish an exception to termination . . . .”). The parents presented no evidence 

the child would suffer physical, mental, or emotional detriment if their rights were 

terminated. As such we conclude this exception to termination is not applicable. 

D. Additional Time

Both parents suggest they should have been granted additional time to work 

toward reunification. If, following a termination hearing, the court does not 

terminate parental rights but finds there is clear and convincing evidence that the 

child is a child in need of assistance, the court may enter an order in accordance 

with section 232.104(2)(b). Iowa Code § 232.117(5). Section 232.104(2)(b) 

affords the juvenile court the option to continue placement of a child 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.”

But the parents have failed to present us with any “specific factors, 

conditions, or expected behavioral changes which [would] comprise the basis for 

the determination that the need for removal . . . will no longer exist at the end of” 

an extension of time. See id. § 232.104(2)(b). The main issue in these 

proceedings was the parents’ inability to provide safe care for a young child. The 

parents participated in the safe-care program, which was specifically aimed at 
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remedying that issue. The program consists of various modules. The parents 

went through the modules several times, but the involved provider reported “the 

parents made limited to no progress concerning safe care due to their lack of 

understanding the material” and neither parent has “been able to successfully 

complete any of the modules or lessons throughout the life of the case.” Looking 

in the rearview mirror to assess what the future likely holds, we are unable to 

conclude the need for removal will no longer exist after six additional months, and 

we deny the parents’ request for an extension.

IV. Conclusion

We affirm the termination of both parents’ parental rights.

AFFIRMED ON BOTH APPEALS.