In the Interest of Z.D., Minor Child ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-2047
Filed March 8, 2023
IN THE INTEREST OF Z.D.,
Minor Child,
C.D., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County,
Scott Strait, District Associate Judge.
A mother appeals the termination of her parental rights to one child.
AFFIRMED.
Whitney A. Estwick, Omaha, Nebraska, for appellant mother.
Brenna Bird, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Roberta J. Megel of the State Public Defender, Council Bluffs, attorney and
guardian ad litem.
Considered by Vaitheswaran, P.J., and Greer and Chicchelly, JJ.
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CHICCHELLY, Judge.
C.D. appeals the termination of her parental rights to one child, Z.D. She
contends that reasonable efforts at reunification were not made, the statutory
grounds are unsatisfied, and an exception should be granted due to the closeness
of the parent-child bond. Upon our de novo review, we affirm the termination of
her parental rights.
I. Background Facts and Proceedings.
Z.D. was born in 2015. The Iowa Department of Health and Human
Services investigated her home in 2017, 2018, and 2020 due to allegations
involving denial of critical of care, dangerous substances, unsanitary living
conditions, and physical abuse. In January 2021, an intake was called into the
department’s hotline alleging sexual abuse by Z.D.’s father. He later pled guilty to
sexually abusing Z.D. and was sentenced to a term of incarceration. His parental
rights were terminated, and he does not appeal. Z.D. reported that she told her
mother about her father’s behavior, but her mother would laugh or say Z.D. was
lying. Z.D. also reported being instructed to stay in the bedroom with her parents
while they engaged in sexual intercourse.
In February, Z.D. was removed from her mother’s care upon a finding the
mother failed to provide adequate shelter, which was premised on unsanitary
conditions in the home. Workers discovered animal feces and urine, an infestation
of cockroaches and other bugs, rotting food, and trash throughout the home. Z.D.
was placed with her aunt on March 1 and has remained in her home for the
duration of this case. After five months of attempting to engage the mother in
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services with little to no progress, the department opted to pursue court
involvement. In August, Z.D. was adjudicated a child in need of assistance (CINA).
Initially, Z.D. and her mother enjoyed unsupervised visits, which were
considered semi-supervised because they did not extend to overnights. The
mother completed parenting courses on the ABC’s of sexual abuse and seeking
safety, but she failed to partake in several other recommended courses. The
mother completed a psychological evaluation and engaged in mental-health
therapy. She attended therapy consistently from August 2021 to April 2022. The
family support specialist testified that she had trouble getting the mother to sign a
release of information so that the department could communicate with the therapist
because the mother claimed the therapist was a liar.
In December, the mother’s visitation regressed to fully supervised due to
lack of compliance with the safety plan, which instructed that no unapproved adults
were allowed at visits. Z.D. came back from visits talking about having met her
“new daddy.” An unknown adult male also attended Z.D.’s school program with
her mother, and it was discovered he had a criminal history of domestic violence.
It was also clear Z.D. and the man had met before based on their interaction and
because he had posted a picture with Z.D. on social media during a recent visit.
Z.D. also reported another adult male kissing her with his tongue and that her
mother told her it was okay because he was a friend. The mother denies
condoning the behavior and said that individual would not be around because she
did not feel he was a safe person. However, that specific individual was reportedly
helping the mother clean her home during the month prior to the termination
hearing.
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In late January 2022, the department approved the mother’s new home for
visitation. During the termination hearing, the caseworker testified that she did not
know why visitation never actually occurred at the home. A progress report dated
February 20, 2022, noted that no visits occurred during that reporting period
because “[the mother] didn’t want to attend these scheduled visits” and did not
want “to bring [Z.D.] into the situation.” Visits occurred at the family access center
because Z.D.’s aunt requested that visits stop occurring in her home due to the
mother making inappropriate comments around Z.D. and the aunt’s children.
In March, Z.D.’s psychiatrist recommended suspending visits with her
mother for a few weeks of evaluation due to self-harming behaviors and suicidal
comments after interactions. It was recommended that visits begin again in a
therapeutic setting, meaning under supervision of a licensed therapist. The
department placed Z.D. and her mother on a waiting list for this purpose and
recommended the mother utilize the intervening time to complete her psychiatric
evaluation and continue individual therapy. In mid-June, the department learned
the mother had not attended therapy since late April. It was discovered that the
therapist’s office cancelled her appointment in May, and the mother had difficulty
getting rescheduled. The caseworker testified that the mother removed herself
from the waiting list for therapeutic visits with Z.D. in order to pursue her own
options. The mother testified that she did not do so and should still be on the list
to her knowledge. The record reflects an email exchange in June in which the
mother informed the department of a family therapist she found, but the
department informed her that it would need the mother’s psychiatric evaluation and
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an update from her individual therapist prior to family therapy. Therapeutic visits
never occurred.
In June, the mother completed a psychological evaluation with a new
therapist who diagnosed her with adjustment disorder with anxiety. The therapist’s
letter notes that nothing suggested that a psychiatric evaluation would be
necessary for the mother. On July 1, an intake was reported to the police
department, and it was requested that contact between Z.D. and her mother be
suspended until the investigation could be completed. On July 22, the department
was informed that the investigation was suspended and contact could be initiated
again. The county attorney filed its petition to terminate parental rights in July.
On August 4, Z.D. and her mother visited over the phone, which was their
first contact since April. Their subsequent contact was limited to phone and video
calls leading up to the termination hearing. Z.D. reportedly asked her mother if
she would do certain things to her if she got to see her again, such as lock her in
her room or hit her. Z.D. also exhibited self-harming behaviors during the calls by
picking at herself until she drew blood. Afterwards, she experienced nightmares,
was clingy, exhibited heightened anxiety, and continued to pick her skin. In the
two months prior to the termination hearing, Z.D. expressed approximately five
times that she did not want to see her mother. The caseworker visited the mother’s
home in August and concluded that it was unfit for visits due to significant trash on
the floor, cockroaches on the wall, old food on the counter and floor, and an
unknown male staying at the residence.
After Z.D.’s attorney and guardian ad litem filed a motion to suspend
visitation, the court held a hearing regarding whether to continue contact in mid-
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September. The court denied the motion on September 21. Z.D. and her mother
shared a video call on September 22. The court held a hearing on the petition to
terminate parental rights on September 26. After the court terminated her parental
rights, the mother filed a timely appeal.
II. Review.
Our review of termination proceedings is de novo. See In re C.B., 611
N.W.2d 489, 492 (Iowa 2000). “We will uphold an order terminating parental rights
where there is clear and convincing evidence of the statutory grounds for
termination. Evidence is clear and convincing when there is no serious or
substantial doubt as to the correctness of the conclusions of law drawn from the
evidence.” In re T.S., 868 N.W.2d 425, 431 (Iowa Ct. App. 2015) (internal citation
omitted). We give weight to the juvenile court’s fact findings, especially those
about witness credibility, although they are not binding. See Iowa R. App.
P. 6.904(3)(g); C.B., 611 N.W.2d at 492.
III. Discussion.
The principal concern in termination proceedings is the child’s best
interests. In re L.T., 924 N.W.2d 521, 529 (Iowa 2019). Iowa courts use a three-
step analysis to review the termination of parental rights. In re A.S., 906 N.W.2d
467, 472 (Iowa 2018). Those steps include whether: (1) grounds for termination
have been established, (2) termination is in the child’s best interests, and (3) we
should exercise any of the permissive exceptions to termination. Id. at 472–73.
A. Grounds for Termination.
Here, the juvenile court found the State proved by clear and convincing
evidence that termination of the mother’s parental rights was appropriate under
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paragraphs (e) and (f) of Iowa Code section 232.116(1) (2022). We may affirm if
the record supports termination on any one ground. See In re A.B., 815 N.W.2d
764, 774 (Iowa 2012). We confine our analysis to paragraph (f), under which the
court may terminate if it finds all of the following:
(1) The child is four years of age or older.
(2) The child has been adjudicated a [CINA] pursuant to
section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least twelve of the last eighteen months, or
for the last twelve consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents
as provided in section 232.102.
The fourth element is at issue: whether the child could be returned to the parent’s
care at the time of the termination hearing. See In re D.W., 791 N.W.2d 703, 707
(Iowa 2010) (interpreting the term “at the present time” to mean “at the time of the
termination hearing”).
We agree with the juvenile court that Z.D. could not be returned to her
mother’s care at the time of the termination hearing. The department expressed
concern about the mother refusing to take accountability for her involvement with
the department and needing to demonstrate an ability to maintain safe supports
and provide age-appropriate supervision. The family support specialist testified:
Every time that I would try to talk about having safe people around,
[the mother] would say that he’s already out of the house and that it’s
already taken care of, and so it was kind of hard to work on that. I
tried to bring it up a couple other times, and then she just said the
problem is already gone.
Besides unknown men encountered at the home, the mother also continued to
have contact with the father during his incarceration despite her reports of physical
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and emotional abuse by him in the past. One month prior to the termination
hearing, the mother’s physical home was still found to be unfit for Z.D. due to
unsanitary conditions and an unknown male staying at the residence. Ultimately,
we share in the district court’s conclusion that the mother “has failed to
demonstrate the protective capacity to prevent further trauma, abuse or neglect of
[Z.D.].” “It’s folly to think the mother will stand sentinel to protect against a foe she
doesn’t acknowledge exists.” In re D.D., 955 N.W.2d 186, 193 (Iowa 2021). We
affirm the court’s finding that Z.D. could not be returned to her mother at the time
of the termination hearing.
B. Reasonable Efforts.
The mother argues the department did not make reasonable efforts at
reunification because it failed to provide visits for a significant period of time. See
Iowa Code § 232.102(7) (2022) (requiring that the department “make every
reasonable effort to return the child to the child’s home as quickly as possible
consistent with the best interests of the child”). However, the mother does not
point to any portion of the record where she identified a deficiency in agency
services prior to the filing of the petition for termination. Moreover, the mother did
not raise the issue of reasonable efforts at the termination hearing. Therefore, we
find the argument waived. See In re C.H., 652 N.W.2d 144, 148 (Iowa 2002) (“In
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.”);
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine
of appellate review that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.”).
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C. Best Interests.
The mother argues that she “loves her daughter and did not believe it was
in her best interests to have her parental rights terminated with respect to her
daughter.” She does not otherwise advance a best-interests argument with
support from the record or other authorities. See Iowa R. App. P. 6.1401–Form 5
(instructing that the petition include findings of fact or conclusions of law with which
the petitioner disagrees and why, generally referencing a particular part of the
record, witnesses’ testimony, or exhibits that support the petitioner’s position). If
this was an attempt to raise such an argument, we find it waived. See Goode v.
State, 920 N.W.2d 520, 524 (Iowa 2018) (“Our appellate rules of procedure and
judicial restraint expect claims raised on appeal be specific. A party who fails to
satisfy this standard risks waiving the issue.” (internal citations omitted)). Even if
an argument was advanced, we would find Z.D.’s best interests do not warrant
continuing a parent-child relationship and therefore support termination.
D. Exception to Termination.
Finally, the mother argues an exception to termination should be granted
because of the parent-child bond that she and Z.D. share. See Iowa Code
§ 232.116(3)(c) (providing a discretionary exception to termination when “[t]here is
clear and convincing evidence that the termination would be detrimental to the
child at the time due to the closeness of the parent-child relationship.”). The
provisions of section 232.116(3) are “permissive, not mandatory,” and the parent
bears the burden to prove the applicability of an exception to termination. A.S.,
906 N.W.2d at 475–76. Despite the mother’s love for her child, “our consideration
must center on whether the child will be disadvantaged by termination.” D.W., 791
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N.W.2d at 709. The caseworker testified that Z.D. has a bond with her mother but
not the type of safe or nurturing bond that Z.D. shares with her aunt. We do not
find a parent-child relationship so strong that it outweighs the need for termination.
See In re W.M., 957 N.W.2d 305, 315 (Iowa 2021) (finding the existence of a bond
is insufficient when parents have “failed to provide the clear and convincing
evidence necessary to show that, on balance, that bond makes termination more
detrimental than not”).
IV. Disposition.
Having reviewed the mother’s arguments regarding the statutory grounds,
reasonable efforts, and an exception to termination, we find each without merit and
affirm termination of her parental rights.
AFFIRMED.