In the Interest of T.B., J.B., and J.B., Minor Children ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0967
Filed August 31, 2022
IN THE INTEREST OF T.B., J.B., and J.B.,
Minor Children,
J.B., Mother,
Appellant
T.B., Father,
Appellant.
Appeal from the Iowa District Court for Allamakee County, Linnea M.N.
Nicol, District Associate Judge.
Parents appeal the termination of their parental rights. AFFIRMED ON
BOTH APPEALS.
Sandra Benzschawel of Meyer, Lorentzen & Nelson, Decorah, for
appellant mother.
Charles R. Kelly of Charles Kelly Law Office, P.C., Postville, for appellant
father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena,
Assistant Attorney General, for appellee State.
Whitney L. Gessner of Gessner Law Office, Postville, attorney and
guardian ad litem for minor children.
Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
2
SCHUMACHER, Judge.
A mother and father separately appeal the termination of their parental
rights. First, both parents argue the court wrongly found termination was in the
children’s best interests. Second, the parents claim the court should have
applied a statutory exception to termination. They also contend the court should
have granted a guardianship with the maternal grandmother in lieu of
termination. Finally, the parents assert the role of guardian ad litem (GAL) and
attorney for one child should have been bifurcated because the eldest child
opposed termination. We find that termination was in the best interest of the
children, the court properly declined to apply a statutory exception, and a
guardianship was not the appropriate permanency option for these children. We
also find the court did not abuse its discretion in declining to bifurcate the role of
the GAL and attorney for the eldest child.1 We affirm.
I. Background Facts & Proceedings
The Iowa Department of Human Services (DHS) became involved with
this family in June 2020 based on concerns of domestic abuse and drug use. In
particular, there were concerns about the mother’s use of methamphetamine
and the father’s domestic violence against the mother. The father moved into
an apartment while the mother stayed in the familial home. The move was
necessitated, in part, due to a no-contact order (NCO) in place between the
parents. The parents struggled to comply with the NCO for at least the first year
1 The GAL and attorney filed a responsive brief but does not appeal from the
termination order.
3
of the case. The children, T.B.,2 age twelve, J.B. and J.B., twins, age six, were
adjudicated children-in-need-of-assistance (CINA) on July 24, 2020, pursuant
to Iowa Code sections 232.2(6)(c)(2) and (n) (2020). The children remained in
their mother’s custody at the time of adjudication.
T.B. was formally removed from parental custody on September 24 due
to a physical altercation between T.B. and the mother. T.B. was placed with an
adult sibling. The two younger children remained with the mother, although the
maternal grandmother moved in with the family to assist the mother. The
grandmother left the home in October due to disagreements with the mother.
Methamphetamine and drug paraphernalia were found in the mother’s home in
October. As a result, the twins were placed with a maternal uncle and his
girlfriend. T.B. moved to the same home. The two younger children were
formally removed from parental custody on December 10. All three children
have remained together in this relative placement since then.
T.B. has struggled throughout the case with mental-health issues. In
particular, T.B. was hospitalized in May 2021 due to suicidal ideation. The child
was hospitalized again in October 2021 for the same reason. Despite those
concerns, testimony was consistent at trial that T.B. has exhibited significant
growth since removal. T.B. excelled academically and expressed a desire to
stay at the current school district. At the termination hearing, T.B. requested to
live with the father in Cresco where T.B. currently attends school. But T.B. also
2 T.B. used the name F.B. at some period during this case. For the purpose of
this appeal, we refer to the oldest child as T.B., the child’s legal name at the
time of our record on appeal.
4
testified that it was T.B.’s priority to stay with T.B.’s two younger siblings and
that the two younger children should remain in the current relative placement.
J.B. and J.B. are autistic, requiring an individual education plan (IEP) at
school. Caseworkers testified to their growth since case initiation, both
behaviorally and academically. The twins have begun to demonstrate some
behavioral problems recently, due at least in part to ongoing instability caused
by this case.
The mother continues to struggle with substance abuse. Despite DHS
making drug testing readily available, the mother missed forty-seven
opportunities to test. She testified that she missed the tests due to issues with
her memory3 and because she simply did not want to submit to testing. She last
tested positive for methamphetamine in November 2021. She began mental-
health and substance-abuse treatment in January 2022, the same month the
termination proceedings convened. She claimed to have been three weeks
sober at the second day of the hearing on February 17, which illustrates that
she was not sober on the first day of the hearing on January 21. The mother
also struggles with mental-health issues, including depression, anxiety, and
post-traumatic stress disorder (PTSD). She currently works at a restaurant in
Harper’s Ferry, although she still owns the familial home in Waukon.
The father has been in and out of jail throughout the case. He was
arrested in October 2020 for violating the NCO. He was in jail until December,
3 The mother claims to suffer from fibromyalgia that affects her short-term
memory. She testified that it has caused her to miss her children’s events and
appointments.
5
was briefly released, and then returned to jail the same month. He remained in
jail until April 2021, when he was released to a halfway house. He was revoked
from the halfway house in July and returned to jail. The father was again placed
at a halfway house in August but was unsuccessfully discharged back to jail in
November. He was released from jail in December 2021 and remains on
probation. He testified that he needs to complete the Iowa Domestic Abuse
Program (IDAP) before he will be discharged from probation. He currently has
housing and draws income from his veteran’s benefits.
The parents’ visits have remained fully supervised. Some of these visits
have ended early due to inappropriate conversations between the parents and
children, largely focused on denigrating the placement and DHS. Testimony
indicated bonds between the parents and children, although the strength of the
bonds depended on the particular relationship between each child and parent.
T.B., for example, indicated a closer relationship with the father. In contrast,
J.B. and J.B. are generally closer to the mother.
The maternal grandmother lives in Wisconsin. She intervened at the
termination hearing and expressed her wishes to serve as a guardian for the
children.4 She plans on moving to Iowa only if granted the guardianship. The
grandmother has supervised visits for the mother. The DHS caseworker
assigned to the case expressed concerns about the grandmother covering for
the mother while supervising visits.
4 The intervener has not appealed.
6
The State filed petitions to terminate the parents’ parental rights to all
three children on December 28, 2021. The hearing was conducted on
January 21, February 17, and March 10, 2022. The parents requested a six-
month extension, or, in the alternative, that a guardianship with the maternal
grandmother be established for all three children. Both parents and the
grandmother moved to bifurcate the role of GAL and attorney for T.B. due to
T.B. revoking consent to termination of the parents’ parental rights between the
first and second day of the termination hearing.5 The court denied the motion,
finding the GAL was adequately representing T.B.’s wishes. The court
terminated the parent’s parental rights under Iowa Code section 232.116(1)(f)
(2021). Both parents appeal.
II. Standard of Review
We review termination proceedings de novo. In re P.L., 778 N.W.2d 33,
40 (Iowa 2010). Termination of parental rights follow a three-step process.
First, we must determine whether a ground for termination exists under
section 232.116(1). Id. at 39. Second, we consider whether termination is in
the best interests of the children. Id. Third, we consider whether an exception
found in section 232.116(3) precludes termination. Id. Because the parents do
not contest whether a ground for termination exists, we may skip that step. See
id. at 40.
5 In addition to an attorney and guardian ad litem, a CASA (court appointed
special advocate) was appointed for the children and recommended termination
of both parents’ parental rights.
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III. Discussion
The parents raise several claims on appeal. First, they contend the
children should have been placed in a guardianship with the maternal
grandmother in lieu of termination of their parental rights. Subsumed in that
argument, the parents claim that termination is not in the best interests of the
children and that the court should have applied a statutory exception. Finally,
they claim that the role of GAL and attorney for T.B. should have been
bifurcated.
A. Best Interests of the Children
The parents allege termination is not in the best interests of the children.
When examining this issue, we “give primary consideration to the child’s safety,
to the best placement for furthering the long-term nurturing and growth of the
child, and to the physical, mental, and emotional condition and needs of the
child.” Iowa Code § 232.116(2). “It is well-settled law that we cannot deprive a
child of permanency after the State has proved a ground for termination under
section 232.116(1) by hoping someday a parent will learn to be a parent and be
able to provide a stable home for the child.” In re A.M., 843 N.W.2d 100, 112
(Iowa 2014) (quoting P.L., 778 N.W.2d at 41). Having considered the relevant
factors, we determine that termination is in the best interests of the children.
Neither parent has made significant progress on the issues that brought
these children to the attention of the court. The mother missed forty-seven drug
tests, often times simply because she chose not to participate. She only began
mental-health and substance-abuse treatment in January, the same month as
the termination hearing began. She also testified that she was three weeks
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sober on February 17, the second day of the hearing, indicating that she was
not sober the first day of the hearing which began on January 21. The mother
has signed a release that only allows her treatment facility to inform DHS that
she is a current patient, hindering the agency’s ability to verify any progress.
Similarly, the father has made little progress since this case’s inception.
He has spent about fourteen of the nineteen months of this case incarcerated
for violating the NCO prohibiting contact with the children’s mother. He was
unsuccessfully discharged from the halfway house twice and has not yet
completed the IDAP classes necessary to complete his probation. He informed
caseworkers during his first attempt at IDAP that he did not believe the program
would be beneficial. As a result, caseworkers believed the father was merely
going through the motions and not taking responsibility for is actions. He will
not begin therapy until June.
The children have demonstrated growth in their current placement. J.B.
and J.B. have improved academically and behaviorally. While J.B. and J.B.’s
behavior has started to regress somewhat, that is due at least in part to the
ongoing instability caused by the case. Similarly, T.B. is excelling academically.
We also note that the placement family, a relative, is willing to adopt all
three children. See Iowa Code § 232.116(2)(b). This will allow the children to
remain together.6 See In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App. 1994)
6 The parents contend termination will separate the three children from their
adult step-siblings. However, T.B. indicated a lack of recent communication with
the step-siblings. An adult step-brother testified to last visiting with T.B. in
September 2020, despite the knowledge that the placement would not prevent
his contact. Further, his visits with J.B. and J.B. are normally only five to ten
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(“[W]herever possible brothers and sisters should be kept together.”). Given the
lack of progress the parents have made in addressing their substance abuse
and domestic violence, particularly when compared to the progress the children
have made in their current placement, termination is in the children’s best
interests.
B. Statutory Exceptions to Termination
The parents allege multiple statutory exceptions to termination found in
section 232.116(3) apply in this case. The exceptions “are permissive, not
mandatory.” In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (citation omitted).
“We may use our discretion, ‘based on the unique circumstances of each case
and the best interests of the child, whether to apply the factors in this section to
save the parent-child relationship.” Id. (citation omitted). The parents bear the
burden of proving the applicability of an exception. See In re A.S., 906 N.W.2d
467, 476 (Iowa 2018).
Relative Placement—Iowa Code section 232.116(3)(a)
The parents claim that the children’s placement with a relative should
preclude termination. See Iowa Code § 232.116(3)(a). We disagree. First, our
supreme court has been clear that “[a]n appropriate determination to terminate
a parent-child relationship is not to be countermanded by the ability and
willingness of a family relative to take the child. The child’s best interests always
remain the first consideration.” A.S., 906 N.W.2d at 475 (citation omitted). The
parents have a tense relationship with the children’s placement. Both the
minutes long. The children have historically had minimal contact with the adult
step-siblings.
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mother and father have made derogatory statements to the children about the
placement, the content of which we do not repeat in this opinion. Forcing the
children to continue to navigate this tumultuous relationship is not in their best
interest.
Objection to Termination—Iowa Code section 232.116(3)(b)
The combination of all of the parents’ arguments under one heading
makes it difficult to ascertain whether the parents raise the exception detailed in
Iowa Code section 232.116(3)(b). This issue appears in the parents’ brief only
in relation to the bifurcation issue. And the juvenile court found that the child did
not object to the termination of his parents’ rights, conceding that the best
interests of the siblings required them to remain together in the relative
placement. Given the lack of authority or argument cited by either parent with
respect to this exception, we decline to address it. Because we cannot play the
role of advocate, we decline to address this exception. See In re E.D., No. 16-
0829, 2016 WL 4379382, at *7 (Iowa Ct. App. Aug. 17, 2016); see also Inghram
v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974) (“To reach the
merits of this case would require us to assume a partisan role and undertake
the appellant’s research and advocacy. This role is one we refuse to assume.”).
Parent-Child Bond—Iowa Code section 232.116(3)(c)
The parents also contend their bond with the children should prevent
termination. See Iowa Code § 232.116(3)(c). Testimony at trial indicated that
the mother shares a bond with J.B. and J.B., while T.B. tends to be closer to the
father. T.B. has only recently begun attending visits with the mother again.
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Some evidence suggests this was to protect the younger siblings. Caseworkers
indicated that the father tends to focus on T.B. during visits.
A close bond on its own is insufficient to avoid termination. Rather, there
must be clear and convincing evidence that the bond is close enough that
“termination would be determinantal to the child due to the closeness of the
parent-child relationship.” Id. The record supports that since removal the twins
have experienced significant growth. Thus, termination will not be detrimental
to J.B. and J.B.
T.B. is twelve years old. T.B. struggled throughout the case with feelings
of being caught in the middle of the process, evident by this child’s shifting
viewpoint on termination during trial. T.B. is close with the two younger siblings,
and testified to a desire to keep all the siblings together. While we acknowledge
and meaningfully consider T.B.’s bond with the father, termination remains in
T.B.’s best interests. T.B. is excelling in the current placement. And T.B. also
needs permanency, evident by the ongoing struggles with mental health. Of
particular note is T.B.’s preference to stay with the two younger siblings. Given
the lack of progress the father has made on his domestic violence and the other
noted factors, we do not find termination to be detrimental to T.B. The juvenile
court properly declined to apply this statutory exception to any of the three
children.
C. Guardianship
The parents suggest that the juvenile court should have instituted a
guardianship with the maternal grandmother pursuant to Iowa Code
section 232.104(2)(d)(1). That section permits a court to decline to terminate
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parental rights and instead place the children under a guardianship when:
(a) termination would not be in the child’s best interests, (b) services were
offered to correct the situation that led to the child’s removal, and (c) the child
cannot be returned home. Iowa Code § 232.104(4).
Here, as noted above, termination is in the children’s best interests. A
guardianship with the maternal grandmother is not appropriate in this case.
First, the DHS caseworker assigned to the case testified to concerns that the
grandmother covered for the mother during visits. And while the grandmother
lived with the mother and the two youngest children early in the case, she left
due to disagreements with the mother. Concerns also exist over the
grandmother’s ability to manage the three children and financial ability to care
for them. Generally, “a guardianship is not a legally preferable alternative to
termination” because it lacks permanency. A.S., 906 N.W.2d at 477 (citation
omitted). That is particularly the case where, as has been demonstrated above,
the children need permanency. The juvenile court properly declined to establish
a guardianship in lieu of termination.
D. GAL And Attorney Bifurcation
The parents claim that the role of GAL and attorney for T.B. should have
been bifurcated because the GAL and attorney’s recommendations conflicted
with T.B.’s wishes. Iowa Code section 232.89(4) permits the same person to
serve as a GAL and the child’s counsel. “However, the court may appoint a
separate guardian ad litem, if the same person cannot properly represent the
legal interests of the child as legal counsel and also represent the best interests
of the child as guardian ad litem.” Iowa Code § 232.89(4). We review a juvenile
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court’s ruling denying a motion to appoint separate counsel for a child for an
abuse of discretion. In re A.T., 744 N.W.2d 657, 665 (Iowa Ct. App. 2007).
Here, a conflict did not prevent T.B.’s GAL and attorney from representing
T.B.’s wishes. T.B. did not object to termination at the first day of hearings. At
the beginning of the second day, the GAL and attorney informed the court that
T.B. was now objecting to termination. T.B. indicated a preference for the GAL
and attorney remaining as T.B.’s GAL and attorney. For the duration of the trial,
the GAL and attorney asked open-ended questions rather than ones angled
towards termination. And the GAL and attorney expressly informed the court
that her position matched T.B.’s—that is, a guardianship should be established.
Moreover, the court provided T.B. an opportunity to testify. That testimony was
consistent with the GAL and attorney’s statements indicating T.B. felt caught up
in the process and had conflicting feelings about the desired outcome. The court
did not abuse its discretion in declining to bifurcate the GAL and attorney’s
roles.
AFFIRMED ON BOTH APPEALS.