In the Interest of A.O.L. and J.O.B., Minor Children ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0739
Filed July 20, 2022
IN THE INTEREST OF A.O.L. and J.O.B.,
Minor Children,
C.O.-M., Mother,
Appellant,
J.B., Father of J.O.B.,
Appellant,
T.L., Father of A.O.L.,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jones County, Joan M. Black, District
Associate Judge.
A mother and two fathers appeal the juvenile court’s order terminating their
parental rights. AFFIRMED ON ALL THREE APPEALS.
Andrew R. Wiezorek of Jacobsen, Johnson & Wiezorek, P.L.C., Cedar
Rapids, for appellant mother.
Robert W. Davison, Cedar Rapids, for appellant father J.B.
Phillip D. Seidl of Seidl & Seidl, P.L.C., Cedar Rapids, for appellant father
T.L.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Deborah M. Skelton, Walford, attorney and guardian ad litem for minor
children.
Considered by Vaitheswaran, P.J., and Tabor and Badding, JJ.
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TABOR, Judge.
Three-year-old A.L. and her one-year-old sister, J.B., both have special
needs. The juvenile court terminated the parental rights of their mother, Candace;
A.L.’s father, Tony; and J.B.’s father, Judson. All three parents separately appeal.
After reviewing the record anew, we reach the same conclusions as the juvenile
court—the parents have not exhibited the necessary skills or resolve to manage
A.L.’s developmental delays or J.B.’s feeding issues. We thus affirm the
termination order.1
I. Facts and Prior Proceedings
Acting on a report of methamphetamine use in August 2020, the Iowa
Department of Human Services (DHS) investigated Candace for failing to properly
supervise A.L. Inside the family’s home, the child protective worker noticed a pipe
near the toddler. Candace shoved the pipe under a couch cushion, denying it was
drug paraphernalia. But Candace eventually tested positive for methamphetamine
and amphetamines. A.L. could not be placed with Tony, who was incarcerated in
Illinois. So the court approved the DHS request to remove the child from parental
care.2 For three months after A.L.’s removal, Candace refused services, including
drug testing and evaluations for substance abuse and mental health.
Meanwhile, A.L. went to live with her paternal grandparents, who worked
with the child on her significant developmental and speech delays. They
1 We review termination orders de novo. In re M.D., 921 N.W.2d 229, 232 (Iowa
2018). We give weight to the juvenile court’s fact findings, but they do not bind us.
Id. The State must prove its case by clear and convincing evidence. In re L.B.,
970 N.W.2d 311, 313 (Iowa 2022).
2 This removal was not Candace’s first brush with the DHS. She received services
in 2007, and the court terminated her rights to another child in 2012.
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suspected the delays stemmed from neglect by Candace. Then in November
2020, Tony returned home from prison, staying in a camper on his parent’s
property. That arrangement allowed him to participate nightly in A.L.’s bedtime
routine. Tony also secured full-time employment, working six days a week for an
agricultural tiling company. The court adjudicated A.L. as a child in need of
assistance (CINA) in December 2020.
A few months after the DHS removed A.L., J.B. was born prematurely.
Feeding issues were among the complications from her premature birth. Candace
had a difficult time following J.B.’s strict feeding method and schedule. So nine
days after her birth, in January 2021, that child too was removed from Candace’s
care. The court adjudicated J.B. as a CINA in February 2021.
Candace identified the baby’s father as Judson, but he declined to
participate in services until a paternity test confirmed his status. That confirmation
occurred in April 2021. Yet he did not start participating in visits until June. Even
then Judson was a passive participant, never feeding the baby, changing her, or
tending to her other needs. Service providers reported that he relied on Candace
to do the hands-on parenting.
Both girls experienced a change in placements during their CINA cases. As
for A.L., her grandmother’s health concerns required a move in May 2021 to the
home of her paternal uncle and aunt, who lived about seventy miles away. That
distance made it harder for Tony to have regular contact with A.L. Candance
remained more consistent in her visitations. But it is the aunt and uncle who made
sure that A.L. attended her speech and occupational therapy at the University of
Iowa Hospitals and Clinics. As for J.B., she moved from one family foster home to
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another in August 2021. The second foster mother had an easier time
communicating with Candace about J.B.’s needs. Also to the good, Candace has
consistently tested negative for controlled substances since January 2021.
But the DHS remained concerned about Candace’s ability to address the
special needs of both children. For example, throughout the case, service
providers were concerned Candace was not following the protocol for J.B.’s
feedings. The child needed to be fed no more than two ounces at a time while
placed on her side. They were concerned when Candace failed to respond to their
prompts regarding the feeding protocol. And in December 2021, service providers
reported that during visits she fed the children age-inappropriate foods and was
unreceptive to correction. Eventually, the court made the decision that J.B. would
not be fed during her visits with Candace. And the fathers were even less
engaged. The guardian ad litem (GAL) believed that both fathers loved their
children and enjoyed spending time with them. That said, the GAL reported that
the fathers also “appear to lack motivation to really dig in and learn how to parent
their girls.”
In January 2022, the State petitioned to terminate the parental rights of the
mother and both fathers. After a March 2022 hearing, the court granted that
petition. All three parents separately appeal.
II. Analysis
Our termination reviews generally follow a three-step process. In re D.W.,
791 N.W.2d 703, 706 (Iowa 2010). First, we look for proof of a termination ground.
Iowa Code § 232.116(1) (2022). Second, we consider the children’s best interests.
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Id. § 232.116(2). And third, we examine any factors weighing against termination.
Id. § 232.116(3).
A. Candace’s Appeal
The mother shoehorns all three steps into a single issue, frustrating our
efforts to sort out her claims. For instance, on statutory grounds, she alleges the
court erred in terminating her rights under Iowa Code section 232.116(1),
paragraphs (g) and (h). But she does not specify what elements the State failed
to prove. Even in the abbreviated briefing that is allowed in these expedited
appeals, see Iowa Rs. App. P. 6.201(1)(d), 6.1401–Form 5, Candace’s position is
not sufficiently formulated to facilitate our review on the first step. See In re M.G.,
No. 11-0340, 2011 WL 2090045, at *4 (Iowa Ct. App. May 25, 2011).
Turning to the second step, Candace argues termination was not in the
children’s best interests because they were not “suffering adverse effects” while
she continued to comply with the case-plan requirements. She asserts that she
was a “hands-on parent,” had addressed her substance-abuse needs, completed
a mental-health evaluation, and had housing.3
True, the mother deserves high praise for consistently testing negative for
controlled substances. But in assessing best interests, we consider the children’s
safety, the best placement for furthering their long-term nurturing and growth, as
well as their physical, mental, and emotional condition and needs. See Iowa Code
3 We question the stability of the mother’s housing. She lived with Judson during
the CINA cases. As the DHS worker noted, if Judson didn’t want her there, she
would be without a place to stay. The worker observed: “She has been very
codependent on either Tony or Judson during the entirety of the case, and if neither
of them are able to be a support, then how is she going to maintain her needs as
well as her kids’ needs.”
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§ 232.116(2); see also In re P.L., 778 N.W.2d 33, 37 (Iowa 2010). Security and
the need for a permanent home mark the “defining elements” of children’s best
interests. In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring
specially). On this record, the critical term is “needs.” Both girls have needs that
Candace is unable to meet. And we reject Candace’s assertion that the children
are not suffering adverse effects from the uncertainty of their future. A.L.,
especially, is emotionally unstable and “really struggles with transitions which can
cause some . . . meltdowns.” The children’s best interests are served by
terminating Candace’s parental rights.
Next, Candace argues that section 232.116(3)(c) applies here. That
provision allows a court to preserve parental rights if “[t]here is clear and
convincing evidence that the termination would be detrimental to the child[ren] at
the time due to the closeness of the parent-child relationship.” Proving that
exception was Candace’s burden. See In re A.S., 906 N.W.2d 467, 476 (Iowa
2018). To carry her burden, she points to her bond with the children.
Indeed, the DHS caseworker testified “they have a good relationship with
their mom and visits go well.” But the worker continued, “[O]utside of that, I think
stability and their needs outweigh that bond at this time.” We agree with that
assessment. In considering this factor, we focus on whether the children will be
“disadvantaged by termination” and whether that disadvantage outweighs the
parent’s inability to meet their needs. D.W., 791 N.W.2d at 709. While severing
the relationship with their mother may be hard on the girls, we see that
disadvantage as less weighty than concern about her ability to address their
special needs.
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Finally, Candace contends she should be allowed six months more to
achieve reunification. A court may, at its discretion, defer permanency if it can
“enumerate the specific factors, conditions, or expected behavioral changes which
comprise the basis for the determination that the need for removal” of the children
from their home will no longer exist after the six-month reprieve. Iowa Code
§ 232.104(2)(b); see also In re A.M., 843 N.W.2d 100, 113 (Iowa 2014). Deferring
permanency would not be a good option for these children. Candace had eighteen
months to reunite with A.L. and fifteen months to regain custody of J.B. She hasn’t
been able to gain the necessary parenting skills in that time, and it is unlikely she
could do so with a deferral of permanency.
In the end, severing legal ties with the mother will enable these children to
secure the help they need to grow and thrive.
B. Tony’s Appeal
Tony contends the juvenile court erred in terminating his rights under Iowa
Code section 232.116(1)(h). But like Candace, he does not point to which element
he is contesting. That failure constitutes waiver of the issue on appeal. See In re
C.B., 611 N.W.2d 489, 492 (Iowa 2000) (“A broad, all encompassing argument is
insufficient to identify error in cases of de novo review.”).
Next, Tony argues termination of his parental rights was not in A.L.’s best
interests. See Iowa Code § 232.116(2). He touts their strong bond and urges that
severance of that bond “is extremely detrimental to the child’s future well-being.”
See Iowa Code § 232.116(3)(c). No question, Tony developed a good relationship
with his daughter. His mother testified that when A.L. was younger, Tony would
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change her diapers and “help to get her food.” But the grandmother offered brutal
candor in estimating her son’s ability to transition to being a full-time parent:
Tony would make a good father, but right now he could not. He could
not sustain her in the way that she is right now with the doctors that
she goes to, with all the people that have been helping her, he just
can’t do that. There is no way.
We credit the grandmother’s testimony on the child’s best interests.
Although Tony does not use the term “reasonable efforts,” he argues that
the DHS transfer of A.L. to the home of her uncle and aunt was “essentially a
forced estrangement” given how far away they lived and his “grueling work
schedule.” See In re L.M., 904 N.W.2d 835, 839 (Iowa 2017) (describing
reasonable efforts concept as including visitation arrangement designed to
facilitate reunification while protecting child from harm). Then in the next
paragraph he argues that her placement with relatives “provides the basis for the
exception codified under Iowa Code section 232.116(3)(a).”
To untangle those threads, we note that the relative placement provided
A.L. with a stable environment after her grandmother’s health started failing. A.L.
has assimilated into the new home, where she has four cousins to make her feel
welcome. The DHS continued to offer Tony visitation with A.L. at his brother’s
house, but Tony was inconsistent in attending. As for the application of
section 232.116(3)(a), Tony has not established that A.L. was in the “legal custody”
of a relative. See In re A.B., 956 N.W.2d 162, 170 (Iowa 2021) (noting DHS
retained legal custody).
Finally, Tony contends he could have achieved reunification if given another
sixty to ninety days. We don’t see support for that contention in the record. Indeed,
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the aunt testified that Tony “knew he could not have [A.L.] full-time” considering
“all of her therapies and multiple appointments and concerns with his job.”
Finding no merit to Tony’s arguments, we affirm the termination of his
parental rights to A.L.
C. Judson’s Appeal
Judson argues the juvenile court erred in terminating his rights under Iowa
Code section 232.116(1)(h).4 He challenges only the fourth element, asserting
J.B. could be safely returned to his care “with some additional parenting
instruction.” With similar hedging, Judson adds his home “was available and would
have been a more than adequate placement.”
From our review of the record, we find the State presented clear and
convincing evidence that J.B. could not be safely placed in Judson’s care as of
March 2022. L.M., 904 N.W.2d at 839 (defining “present time” as time of
termination hearing). Judson never progressed beyond semi-supervised visits.
The social worker testified that Judson never had a solo visit with J.B. Candace
was always there. And at those visits, he was not “interactive” with J.B. and did
not demonstrate his ability to meet his young daughter’s needs. In fact, service
providers reported that Judson sometimes slept during the visits. Termination was
proper under paragraph (h).
4 Under Iowa Code section 232.116(1)(h), the court may terminate parental rights
if: (1) “The child is three years of age or younger”; (2) has been adjudicated CINA
under section 232.96; (3) “has been removed from the physical custody of the
child’s parents for at least six months of the last twelve months, or for the last six
consecutive months and any trial period at home has been less than thirty days”;
and (4) “clear and convincing evidence” exists “that the child cannot be returned”
home “as provided in section 232.102 at the present time.”
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Judson next contends termination was not in J.B.’s best interests because
of their bond. See Iowa Code §§ 232.116(2), (3)(c). He also mentions in passing
that if “given a few more months” he could adequately care for J.B. The record
does not support Judson’s contention that his relationship with J.B. is so close that
termination would be detrimental to her welfare. Or that a delay in permanency is
appropriate. See In re W.T., 967 N.W.2d 315, 324 (Iowa 2021) (noting father had
several months to form close relationship with his child and “simply neglected to
do so”). Finding no merit to Judson’s arguments, we affirm the termination of his
parental rights to J.B.
In sum, these children have special needs that cannot be met by their
biological parents. Thus we find termination of parental rights offers the best
chance of providing these children with a stable and healthy future.
AFFIRMED ON ALL THREE APPEALS.