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IN THE COURT OF APPEALS OF IOWA No. 0-837 / 10-1586 Filed December 8, 2010 IN THE INTEREST OF L.W., N.W., A.W., A.K., and O.W., Minor Children, B.W., Father of L.W., N.W., and O.W., Appellant, L.D., Mother, Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge.

A mother and father appeal the termination of their parental rights to their children. AFFIRMED.

Jason T. Hauser of Pargulski, Hauser & Clarke, P.L.C., Des Moines, for appellant-father. Stephie N. Tran, Des Moines, for appellant-mother. Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie Brown, Assistant County Attorney, for appellee. Kimberly Ayotte, Des Moines, attorney and guardian ad litem for minor children. Considered by Mansfield, P.J., and Danilson and Tabor, JJ.

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TABOR, J. This termination of parental rights case involves five children: A.K., A.W., N.W., L.W., and O.W. At the time of the termination hearing, the children ranged from eight to two years of age. Their mother challenges the juvenile courts termination of her parental rights to all five children. She asserts the State failed to prove the children cannot be returned to her care. The mother further argues that termination is not in the childrens best interests and seeks a six -month extension to regain custody. The father of the three youngest children--N.W., L.W., and O.W.--also appeals the order terminating his parental rights.1 He likewise asks for additional time for reunification and alleges that termination is not in the childrens best interest because he enjoys a strong bond with them. In our de novo review, we conclude that neither parent is currently in a position to properly care for these children. Convinced by the testimony of

professionals concerning the childrens urgent need for permanency, we reject the parents requests for additional time and affirm the juvenile courts termination order. I. Background Facts and Proceedings This case involves a very young mother, who gave birth to her oldest child when she was sixteen years old. She had four more children before her twentyfifth birthday and cared for them with little family support. The mother has been diagnosed with depression and has used marijuana and methamphetamine in
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The biological father of the two oldest children--A.K. and A.W.--did not contest the termination of his parental rights at the juvenile court and does not do so on appeal.

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the past.

She became involved with B.W., the father of the three youngest

children, in 2003 when she was pregnant with her second child. B.W. has a history of substance abuse, violence, and criminal activity. He was serving a prison sentence for conspiracy to deliver controlled substances and assault causing injury at the time of the termination hearing. The family has participated in programming offered by the Department of Human Services since April 2007. In October 2008, the State filed petitions alleging the children to be in need of assistance (CINA) given three founded reports of failure to supervise, including an incident where the father, B.W., had smoked marijuana and passed out on the couch while caring for the two youngest children. In December 2008, the juvenile court adjudicated all five Due to his

siblings as CINA, but left them in the custody of their mother.

incarceration, B.W. did not appear at review hearings held in February, May, July, and October of 2009. By contrast, the juvenile court found the mother was making "remarkable progress" maintaining the children safely in her care during most of 2009. But the mothers progress derailed when she left the four youngest children home alone and they were found wandering outside clad only in their underwear in very cold temperatures. On January 20, 2010, the juvenile court ordered the children removed from their mothers custody. They have been out of the home ever since.

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The juvenile court observed little progress in the mothers efforts toward reunification with her children by the time of a June 2010 review hearing. The mother struggled to manage all five children at the same time during the supervised visitations. To allow the mother to better engage with each child, the social workers divided the sessions so that the mother would spend one hour with three children and another hour with the other two children. The workers described the overlap of twenty minutes, where all five children were present, as "chaotic." The visits were especially stressful for the oldest child, A.K., who felt guilty for his younger siblings removal from their mothers care, and for L.W., who was angry with her mother and had frequent outbursts during and after visits. Despite her case plan, which had recommended since April 2010 that the mother seek placement at Hope Ministries or a similar recovery program, she did not follow through with entry into that program until July 2010. On July 9, 2010, the State filed a petition to terminate the parental rights of the mother and both fathers. The juvenile court held a hearing on September 3, 2010, and issued its order terminating parental rights on September 17, 2010. The juvenile court determined the State offered clear and convincing evidence to support termination of the mothers parental rights under Iowa Code sections 232.116(1)(d) and (k) (2009)2 as to the four oldest children and sections 232.116(1)(d), (h), and (k) as to the youngest child. The juvenile court found the

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The court also listed section 232.116(1)(f) as a ground for termination, but the State concedes on appeal that this ground was not pled with respect to the mother in the termination petition.

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State had not proved the elements of section 232.116(1)(l), alleging a severe and chronic substance abuse problem. As for the father, B.W., the juvenile court relied on section 232.116(1)(b), (d), (e), (f), (k), and (l) for N.W. and L.W. and section 232.116(1)(b), (d), (e), (h), (k), and (l) for O.W. The mother and father now appeal. II. Standard of Review We review termination orders de novo. In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). We are not bound by the district courts factual findings, but we give weight to them, especially those that involve witness credibility. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). The grounds for termination must be

supported by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000). Evidence is clear and convincing when it leaves ",,no serious or substantial doubt about the correctness of the conclusion drawn from it. " In re D.D., 653 N.W.2d 359, 361 (Iowa 2002) (citation omitted). III. Analysis A. The juvenile court appropriately terminated the mother's rights. The mothers petition argues for reversal of the termination decision based on section 232.116(1)(d) and (h) only. She mentions subsection (k) in the issue heading but does not advance an argument contesting that ground. Accordingly, any objection to termination based on subsection (k) is waived. See In re Det. of Garren, 620 N.W.2d 275, 285 (Iowa 2000) (holding the vagueness issue was waived when it was raised only in division heading of a brief).

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Although we may affirm the termination based on subsection (k) alone, we also believe the State proved the elements for termination under section 232.116(1)(d)3 for all of the children and section 232.116(1)(h)4 for O.W. See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999) (allowing appellate court to affirm on any of multiple grounds found by the juvenile court). The mother

admitted at the termination hearing that even with the DHS services she struggled with parenting all five children. She acknowledged failing to

consistently get the children to school; allowing her oldest child, A.K., to feel like he was shouldering parental responsibility for his siblings at age seven; failing to apply consistent discipline; and failing to maintain a healthy and clean environment for the children to live in. The social worker testified the mother was

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The court finds that both of the following have occurred: (1) The court has previously adjudicated the child to be a child in need of assistance after finding the child to have been physically or sexually abused or neglected as the result of the acts or omissions of one or both parents, or the court has previously adjudicated a child who is a member of the same family to be a child in need of assistance after such a finding. (2) Subsequent to the child in need of assistance adjudication, the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services. Iowa Code

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