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IN THE COURT OF APPEALS OF IOWA No. 8-110 / 07-2169 Filed February 27, 2008

IN THE INTEREST OF H.D. and R.M., Minor Children, N.K.B., Father, Appellant, S.M.J.D., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Louise Jacobs, District Associate Judge.

A father and mother appeal from the order terminating their parental rights. AFFIRMED AS TO MOTHER'S APPEAL; REVERSED AND

REMANDED AS TO FATHER'S APPEAL.

Marc Elcock, West Des Moines, for appellant father. William Sales of Sales Law Firm, P.C., for appellant mother. Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Chris Gonzales, Assistant County Attorney, for appellee State. Charles Fuson of the Youth Law Center, Des Moines, for minor children.

Considered by Mahan, P.J., and Eisenhauer and Baker, JJ.

2 MAHAN, P.J. Suzanne is the mother of Hannah and Riley, and Nole is the father of Hannah. They each appeal the termination of parental rights to her children and his child. 1 Upon our consideration of the record and arguments of the parties, we affirm termination of Suzanne's parental rights to her daughters but reverse termination of Nole's parental rights to Hannah. I. Background Facts and Proceedings. Hannah and Riley, ages one year and two years, eleven months respectively at the time of termination, first came to the attention of the Iowa Department of Human Services (DHS) in December 2006 when a child protective assessment was opened based upon information concerning risk to the children. In mid-February 2007 Suzanne's paramour and Riley's father, Joseph, was arrested for domestic abuse assault and child endangerment, for physically abusing both Suzanne and Riley. Investigation showed that Suzanne had been previously aware of abuse by Joseph against Riley but failed to report or otherwise address it. The children were removed from the home because of protective concerns due to the domestic abuse and Suzanne's parenting skills. The girls were adjudicated children in need of assistance (CINA) on March 20, 2007. Following receipt of services by Suzanne and attempts by DHS to involve Nole in the case and provide him reunification services, the termination hearing was held in mid-November 2007. The district court found clear and convincing

1

The parental rights of Joseph, Riley's father, were also terminated, but he does not appeal.

3 evidence supported termination of parental rights pursuant to Iowa Code sections 232.116(1)(b) (2007) (abandonment); 2 232.116(1)(d) (child adjudicated CINA for abuse or neglect by parent; circumstance which led to adjudication continues despite offer or receipt of services); 232.116(1)(e) (child CINA, child removed for six months, parent has not maintained significant and meaningful contact with the child) and 232.116(1)(h) (child age three or younger; adjudicated CINA; removed for six of last twelve months, and cannot be returned to parents at time of hearing). 3 The court also concluded termination was in Hannah's and Riley's best interests, as they had bonded with their foster home placement. By order dated December 17, 2007, the parental rights of Suzanne, Joseph, and Nole were terminated. Suzanne and Nole appeal. II. Scope and Standards of Review. We review termination of parental rights de novo. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). Grounds for termination must be proved by clear and convincing evidence. In re Z.H., 740 N.W.2d 648, 650-51 (Iowa Ct. App. 2007). Where the district court terminated the parental rights on more than one statutory ground, we will affirm if at least one ground has been proved by clear and convincing evidence. In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct. App. 1995). Our primary concern is the best interests of the children. Z.H., 740 N.W.2d at 651.
2 3

This ground only applied to termination of Joseph's and Nole's parental rights. The substantive analysis portion of the district court's ruling separately discusses the facts supporting termination of both Nole's and Joseph's parental rights under each of the four grounds listed above, although the order portion only terminates Nole's and Joseph's rights under section 232.116(1)(f), which was not alleged in the termination petition. This appears to be a clerical error by the district court, and our reversal of Nole's termination under the other grounds renders his due process argument as to this error moot.

4 III. Issues on Appeal. A. Suzanne. Suzanne asserts several arguments on appeal against termination of her parental rights by the district court. Her first challenge is that DHS failed to provide adequate services to her during the pendency of the case to promote reunification. A parent's challenge to services by the state should be made when they are offered, not when termination of parental rights is sought after services have failed to remedy a parent's deficiencies. In re C.W., 522 N.W.2d 113, 117 (Iowa Ct. App. 1994). Suzanne fails to indicate that she requested or otherwise challenged the adequacy of services prior to the termination hearing. conclude that this issue has been waived and do not address it on appeal. Suzanne next contends that clear and convincing evidence does not support termination of her parental rights under sections 232.116(1)(d), (e) or (h). The record at termination supports the following facts: Suzanne's intellectual functioning level is lower than average, having been diagnosed with Dysthymic Disorder, depression, and borderline intelligence, although not low enough to be considered for more in-depth adult services which all service providers in the case agreed would be necessary to accomplish reunification with her children. Although DHS provided a myriad of services, including in-home services, supervised visitation, Early Access services, Visiting Nurse services, protective daycare, family team meeting, individual therapy, medication management through Broadlawns Hospital, attachment assessment and dyadic therapy, services through the Young Women's Resource Center, adult services through Easter Seals, and psychological evaluation through Pediatric and Family We

5 Psychology, Suzanne continued to struggle with progress during pendency of the case. Suzanne participated in the services provided, but failed to progress to semi-supervised or unsupervised visitation with her children in the eight months between adjudication and the termination hearing. According to service

providers, she remains unaware of safety precautions necessary for her young children and "requires constant monitoring during visitation to ensure the safety of the children." Suzanne's simultaneous management of both children's needs continued to show need for improvement, and she continued to demonstrate an inability to internalize and incorporate the parenting skills training and services provided to her to promote reunification. All service providers and the DHS

caseworker concluded that Suzanne was not close to achieving or even attempting unsupervised visitation at the time of termination, and would not be ready for such a development for an extensive time period. While she has consistently cooperated with services and attended visitation, we find there is sufficient proof that Suzanne remains unable to provide for her children's needs on a consistent, long-term basis. Z.H., 740 N.W.2d at 651, (citing In re L.L., 459 N.W.2d 489, 495 (Iowa 1990)) (stating "Parenting cannot be turned off and on like a spigot. It must be constant, responsible, and reliable."). Therefore, we conclude clear and convincing evidence exists that Hannah and Riley cannot be returned to Suzanne's care at this time. Because we find statutory grounds for termination under section 232.116(1)(h), we need not address the arguments pertaining to the other statutory grounds supporting termination by the district court or by Suzanne on appeal. See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999) ("When the juvenile court terminates

6 parental rights on more than one statutory ground, we need only find grounds to terminate under one of the sections cited by the juvenile court to affirm."). Suzanne notes that her strong bond with the girls evidences that termination is not in their best interests. While a strong bond between parent and child is a special circumstance that militates against termination when the statutory grounds have been satisfied, see Iowa Code

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