In the Interest of A.M. and K.M., Minor Children ( 2020 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 20-1005
    Filed November 30, 2020
    IN THE INTEREST OF A.M. and K.M.,
    Minor Children,
    J.M., Father,
    Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Madison County, Brendan Greiner,
    District Associate Judge.
    A father appeals the termination of his parental rights. AFFIRMED.
    Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, for appellant father.
    Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
    General, for appellee State.
    Penny B. Reimer of Neighborhood Law Group of Iowa, P.C., West Des
    Moines, attorney and guardian ad litem for minor children.
    Considered by Mullins, P.J., and May and Schumacher, JJ.
    2
    SCHUMACHER, Judge.
    A special agent with the Iowa Division of Criminal Investigation (DCI)
    interviewed the father of A.M. and K.M. on May 28, 2019, following the death of
    A.M. and K.M.’s mother the previous day. During the interview, the father reported
    to the agent that on May 27, 2019, after drinking for the majority of the day, he
    pried open a gun safe located at his parents’ home and drove with a loaded
    shotgun to the home where the children’s mother and her three daughters were
    staying. He entered the mother’s bedroom and shot the mother.1 All three girls,
    ages six years, four years, and two years, were in the home at the time of their
    mother’s death.2
    I.       Standard of Review
    The proper standard of review “for all termination decisions” isde novo. In
    re P.L., 
    778 N.W.2d 33
    , 40 (Iowa 2010) (overruling prior cases applying an abuse-
    of-discretion standard of review to the question of whether termination is in the
    best interests of the children); In re A.D.W., No. 12-1060, 
    2012 WL 3200891
    , at *2
    (Iowa Ct. App. Aug. 8, 2012). We give deference to the factual findings of the
    juvenile court, especially those relating to witness credibility, but we are not bound
    by those determinations. In re G.A., 
    826 N.W.2d 125
    , 127 (Iowa 2012). Our
    primary concern in termination proceedings is the best interests of the child. In re
    L.T., 
    924 N.W.2d 521
    , 529 (Iowa 2019); In re L.H., 
    949 N.W.2d 268
    , 270 (Iowa Ct.
    App. 2020).
    1Along  with this admission to the DCI agent, the father told the paternal
    grandmother, his sister, and his best friend that he had shot the mother.
    2 A.M. was born in 2012 and K.M. was born in 2014. S.M., born in 2016, is not the
    biological child of the father and is not at issue here.
    3
    II.    Procedural History
    A brief procedural history is beneficial to this appeal. Following the death
    of the mother and the incarceration of the father, the State secured a removal order
    that placed the children in the temporary custody of the Iowa Department of Human
    Services (DHS).      The children were placed in the care of the maternal
    grandmother. A child-in-need-of-assistance (CINA) petition was filed two days
    later on June 5, 2019. When the father consented to the continued removal of the
    children from parental custody, the removal hearing set for June 6 was canceled.
    The children were adjudicated to be CINA by order filed June 20, 2019, pursuant
    to Iowa Code section 232.2 6(c)(2) and (n) (2019). The court further found that the
    aid of the court was required. Following adjudication, custody of A.M. and K.M.
    was placed with the maternal grandmother subject to the supervision of DHS. S.M.
    also resided with the maternal grandmother and her sisters.           A motion for
    placement filed by the paternal grandparents came before the court for hearing
    simultaneously with a dispositional hearing.
    On September 16, 2019, the district court filed a dispositional order denying
    the paternal grandparents’ motion for placement.       Custody of A.M. and K.M.
    remained with the maternal grandmother, subject to the supervision of DHS. Both
    the maternal grandmother and the paternal grandparents were allowed to
    intervene as parties at different times in the underlying CINA case. Following a
    permanency hearing, the court directed the State to initiate termination
    proceedings between the father and A.M. and K.M.
    A termination hearing was held on July 10, 2020, at which time the court,
    without objection, took judicial notice of the underlying CINA files and the father’s
    4
    pending criminal matter in FECR109148, including the trial information and
    minutes of evidence. Also included in the admitted evidence were the transcripts
    of the combined dispositional/placement hearing, a dispositional review hearing,
    and the permanency hearing. Following the termination hearing, the court entered
    an order terminating the parental rights of the father as to A.M. and K.M. pursuant
    to Iowa Code section 232.116(1)(f) (2020).3
    The father now appeals. He does not contest the statutory ground relied on
    by the district court for termination. Thus, we need not address the ground relied
    upon by the district court. See P.L., 
    778 N.W.2d at 40
    . Rather, the father argues
    the district court erred in not granting guardianship of the children to the paternal
    grandparents and further argues DHS failed to make reasonable efforts for
    reunification purposes. He does not argue termination is not in the children’s best
    interest, but rather, contends placement with the maternal grandmother was
    contrary to the children’s best interests. We address each argument in turn.
    III.   Post-Termination Placement and Exception to Termination
    The father argues, “The trial court erred when it ordered the children to
    remain in the custody of their maternal grandparents.”         With respect to this
    argument, we first note that following the termination, the district court placed
    custody and guardianship of A.M. and K.M. with DHS, rather than the maternal
    grandmother. Secondly, we question the father’s standing to raise this issue. See
    In re K.A., 
    516 N.W.2d 35
    , 38 (Iowa Ct. App. 1994) (concluding the parent had no
    3On remand from the supreme court, the district court amended the termination
    order to reflect that following entry of the termination of parental rights, custody
    and guardianship of the children was placed with DHS.
    5
    right to participate in a placement hearing following termination because “[t]he
    termination of [the mother’s] rights concerning these three children divest[ed] her
    of all privileges, duties, and powers with respect to the children.”); In re D.B., 
    483 N.W.2d 344
    , 346 (Iowa Ct. App. 1992) (refusing to consider mother’s argument
    about where child should be placed following termination because the proper
    termination of the mother’s rights divested her of “any legally recognizable interest
    she would have concerning the guardianship or custody” of the child); In re J.C.,
    No. 19-1985, 
    2020 WL 1049840
    , at *2 (Iowa Ct. App. Mar. 4, 2020).
    The district court did not establish guardianship in either the maternal
    grandmother or the paternal grandparents. However, the court had the authority
    to place guardianship with a relative under Iowa Code section 232.117(3). Here,
    the court was presented with two homes, that of the maternal grandmother and
    that of the paternal grandparents. The evidence presented at the hearing indicated
    both families could provide a home for the children. Following the death of the
    mother, the children have resided continuously with the maternal grandmother.
    Both DHS and the guardian ad litem advocated for as little disruption as possible
    for the children. We find the district court acted in the children’s best interest in
    placing custody and guardianship with DHS for determination of a pre-adoptive
    placement.
    To the extent the father argues an exception to termination should apply
    pursuant to Iowa Code section 232.116(3)(c), we find he falls short of his burden
    to demonstrate that an exception should be applied to prevent termination.
    Guardianships are not “legally preferable” alternatives to termination. In re A.S.,
    
    906 N.W.2d 467
    , 477 (Iowa 2018) (quoting In re B.T., 
    894 N.W.2d 29
    , 32 (Iowa Ct.
    
    6 App. 2017
    )). We have found a guardianship appropriate when “no functional
    difference” existed between guardianship and termination based on a child’s
    placement with his grandmother. See B.T., 894 N.W.2d at 33 (holding ten-year-
    old’s placement with grandmother as his guardian was no less permanent than
    requiring grandmother to adopt child). Here, the children are very young and have
    struggled a great deal since the death of their mother. The maternal grandmother
    and the paternal grandparents have litigated extensively in juvenile court as to the
    appropriate placement for the girls, which has increased the children’s anxiety
    about their immediate and future placement. A termination of parental rights rather
    than a guardianship will provide the children desperately needed permanency
    following a year and a half of tumultuous litigation and the loss of their mother.
    IV.     Reasonable Efforts
    The Code requires DHS to make reasonable efforts to return children to
    their home—consistent with the children’s best interests.                
    Iowa Code § 232.102
    (6)(b). “Reasonable efforts” include services offered to eliminate the
    need for removal or to make it possible for the children to return safely to the family
    home.    
    Id.
       The duty to make reasonable efforts is not “a strict substantive
    requirement of termination,” but the extent of the measures taken by DHS “impacts
    the burden of proving those elements of termination which require reunification
    efforts.” In re C.B., 
    611 N.W.2d 489
    , 493 (Iowa 2000); In re K.C., No. 18-1249,
    
    2019 WL 325863
    , at *2 (Iowa Ct. App. Jan. 23, 2019).
    While not set out as a separate issue, the father appears to also argue a
    lack of reasonable efforts prevented reunification, specifically a lack of visitation
    with his daughters since his incarceration. To the extent he makes this argument
    7
    on appeal, he failed to raise the issue of reasonable efforts at the district court
    level. While he alleges he preserved this issue by contesting the termination
    petition and filing a notice of appeal, filing a notice of appeal is insufficient to
    preserve error for review. See Thomas A. Mayes & Anuradha Vaitheswaran, Error
    Preservation in Civil Appeals in Iowa: Perspectives on Present Practice, 
    55 Drake L. Rev. 39
    , 48 (2006) (“While this is a common statement in briefs, it is erroneous,
    for the notice of appeal has nothing to do with error preservation.” (footnote
    omitted)); In re K.W., No. 15-0790, 
    2015 WL 4642786
    , at *1 (Iowa Ct. App. Aug. 5,
    2015).
    As noted by the DHS worker, since removal, the father has not inquired
    about the girls’ well-being or asked for contact. Although DHS is required to make
    reasonable efforts, “[i]n general, if 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.” In re L.M., 
    904 N.W.2d 835
    , 840 (Iowa 2017). Here, the
    father did not raise the issue of visitation or make a request for other services to
    the district court, and as such, the issue is not preserved for appellate review.
    [I]t is fundamentally unfair to fault the trial court for failing to
    rule correctly on an issue it was never given the opportunity to
    consider. Furthermore, it is unfair to allow a party to choose to
    remain silent in the trial court in the face of error, taking a chance on
    a favorable outcome, and subsequently assert error on appeal if the
    outcome in the trial court is unfavorable.
    State v. Pickett, 
    671 N.W.2d 866
    , 869 (Iowa 2003). Finding the father’s argument
    unpreserved, we decline to address this issue.
    8
    V.     Best Interests
    The father does not argue termination of his parental rights is not in the girls’
    best interest. Rather, his best-interest argument again lands on placement of A.M.
    and K.M., asserting that placement with the maternal grandmother is not in their
    best interests. Iowa Code section 232.117(3) directs the juvenile court to transfer
    a child’s guardianship and custody to one of the following upon termination: (1)
    DHS; (2) a placement agency or other suitable entity licensed to provide care; or
    (3) “a parent who does not have physical care of the child, other relative, or other
    suitable person.” In re J.H., No. 20-0081, 
    2020 WL 2988759
    , at *2 n.2 (Iowa Ct.
    App. June 3, 2020).
    We reject the father’s argument. Following termination, the district court did
    not direct placement at the maternal grandmother’s home. Rather, custody and
    guardianship were placed with DHS. We have previously determined this to be in
    the children’s best interest. As always, our primary concern is the best interest of
    the children. See In re D.S., 
    563 N.W.2d 12
    , 14 (Iowa Ct. App. 1997); In re C.B.,
    No. 11-1196, 
    2011 WL 5389707
    , at *1 (Iowa Ct. App. Nov. 9, 2011).
    Even if we interpreted the father’s argument to allege termination is not in
    the best interest of the children, this would not be a close call. The father has been
    incarcerated since May 27, 2019, after he confessed to killing the children’s
    mother. His criminal trial has been set for the spring of 2021. In the lapse of time
    since the father’s confession to the murder of the children’s mother, A.M. and K.M.
    have endured a great deal. Both A.M. and K.M. attend weekly mental-health
    therapy and have been involved in grief counseling.
    9
    A.M., in particular, was unable to manage her emotions and control her
    anger after her mother’s death. Prior to her mother’s death, A.M. was described
    as a child that took care of everybody else, “kind of a mother hen to classmates
    and peers.” After her mother’s death, she demonstrated significant behavior and
    emotional concerns in school, necessitating reassignment to the Four Oaks
    Classroom. While she is improving, the evidence demonstrates the fragility of the
    children and the importance of limiting further disruptions in their lives.    The
    maternal grandmother has been caring for A.M. and K.M. since their mother’s
    death and is the guardian of S.M., the girls’ half-sister to whom they are bonded.4
    We find termination of the father’s parental rights to be in A.M.’s and K.M.’s best
    interest.
    VI.    Conclusion
    We reject the father’s request for guardianship as a permanency option and
    find his reasonable-efforts argument to be unpreserved. We find termination is in
    the best interest of A.M. and K.M., and that placing custody and guardianship with
    DHS for a pre-adoptive placement decision is in the children’s best interest.
    Accordingly, we affirm the district court.
    AFFIRMED.
    4 At the permanency hearing, the biological father of S.M. consented to a
    guardianship, which allowed him to remain involved with his daughter. Through
    counsel, he expressed his belief it was in his daughter’s best interest to remain
    with her siblings.