In the Interest of G.G., A.U. and K.G., Minor Children ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1347
Filed January 11, 2023
IN THE INTEREST OF G.G., A.U. and K.G.,
Minor Children,
B.A., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Union County, Monty Franklin,
District Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, for appellant
mother.
Brenna Bird, Attorney General, and Ellen Ramsey-Kacena (until
withdrawal) and Mary A. Triick, Assistant Attorneys General, for appellee State.
Meggen Weeks, Afton, attorney and guardian ad litem for minor children.
Considered by Vaitheswaran, P.J., and Ahlers and Buller, JJ.
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BULLER, Judge.
The mother appeals following termination of her parental rights to A.U. (born
2006), G.G. (born 2008), and K.G. (born 2011). The record details the mother’s
substantial struggles with substance abuse and mental health, as well as the
dysfunctional home environment she provided for these children. In resolving this
appeal, we find the statutory elements of termination were met, reject additional
claims made by the mother, and affirm.
I. Background Facts and Proceedings
This family first came to the attention of the Iowa Department of Health and
Human Services (HHS) in October 2020, when the mother refused to seek
necessary mental-health treatment for one of the children. HHS also suspected
controlled-substance abuse, but this was not confirmed until 2021, when the
mother came to one of the children’s schools under the influence—and with her
paramour passed out in the front of her car. The children were removed from the
home in March 2021 due to the mother’s and paramour’s use of
methamphetamine, and the children were adjudicated as children in need of
assistance (CINA).
The mother and paramour were ordered to complete mental-health and
substance-abuse treatment, but neither successfully completed a program. During
the life of the CINA cases and subsequent termination, the mother tested positive
for methamphetamine on three different occasions and the paramour at least once.
The mother made some strides toward treatment in the months immediately
preceding termination, but she still had not completed a program or shown
consistent progress as of the termination hearing. The juvenile court also
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expressed well-grounded concerns about the mother’s honesty with treatment
providers.
The paramour was incarcerated for a portion of the CINA proceedings and
was a significant source of conflict and instability in the home. In addition to the
documented methamphetamine use, the juvenile court found that the paramour
and mother “fought almost continuously and at times [the mother] would take the
children and leave the home and sleep with the children in their car at a park” due
to fighting. The juvenile court further found that the mother’s dysfunctional
relationship with the paramour had traumatized the children, which the mother fails
to recognize.
None of the children have been in the mother’s custody since March 2021.
According to HHS, the mother had not seen the children in person during the
approximate fourteen months leading up to termination. The juvenile court found
the children were so “alienated” from the mother that they essentially refused to
have contact with her. At the time of termination, the guardian ad litem reported
that all of the children were “in a really good place now” and strongly desired that
they not be returned to the mother’s custody.
II. Jurisdiction
The supreme court issued an order inviting the parties to file jurisdictional
statements regarding whether the notice of appeal in this matter was timely filed.
The supreme court then submitted that question to our court for resolution. The
mother filed a statement arguing she intended to timely appeal all of the
terminations, but that a clerical error as to one of the case numbers rendered one
notice untimely. The State did not file a response to the supreme court’s order but
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did address the delayed-appeal issue in its response to the petition on appeal. In
any event, we would be required to decide the jurisdictional question even without
adversarial briefing. See Crowell v. State Pub. Def., 845 N.W.2d 676, 681 (Iowa
2014) (“[A]n appellate court has responsibility sua sponte to police its own
jurisdiction.”).
We are bound by the supreme court’s recent decisions concerning delayed
appeals in juvenile cases. See In re A.B., 957 N.W.2d 280, 289 n.2 (Iowa 2021);
In re W.M., 957 N.W.2d 305, 316–17 (Iowa 2021). “[A] delayed appeal is allowed
‘only where the parent clearly intended to appeal,’ the ‘failure to timely perfect the
appeal was outside of the parent’s control,’ and the delay was ‘no more than
negligible.’” In re W.T., 967 N.W.2d 315, 322 (Iowa 2021) (quoting A.B., 957
N.W.2d at 292). The record tends to support appellate counsel’s assertion
regarding the incorrect case number. We find the mother’s delay was due to a
clerical error by counsel that was no more than negligible and therefore conclude,
under controlling case law, that we have jurisdiction over the appeal.
III. Error Preservation or Waiver
The State argues that error was not preserved as to the statutory grounds
for termination but agrees error was preserved as to the request for additional time,
the bond exception, and the best interests of the children. The relevant exchange
in the transcript, elicited when the court inquired of the mother’s lawyer, reads as
follows:
On behalf of my client, we aren’t contesting -- but as the
evidence indicated, my client would ask that we give her the
additional four months left that would have been given in an
extension of six months giving her four additional months to continue
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the treatment and the services that she finds herself actively
engaged in.
(Because neither party sought relief under Iowa Rule of Appellate Procedure 6.807
seeking to correct the record, we must assume the two dashes in the transcript
reflect an em-dash, rather than an omission by the court reporter.) We note that
only asking for an extension, rather than resisting the statutory grounds, was
consistent with the strategy suggested by counsel’s questions at the hearing; none
of the questions furthered any challenge to the statutory elements supporting
termination. Last, we observe that there are no pleadings in the file that indicate
the mother challenged the statutory grounds for termination, rather than only
seeking the extension.
There is some tension in our cases as to whether the normal rules of error
preservation apply in this context, or whether the mother could have waived her
claims. Compare In re C.H.-B., No. 18-1246, 2018 WL 4627709, at *1 (Iowa Ct.
App. Sept. 26, 2018) (“[S]ufficiency of evidence sustaining any finding may be
challenged on appeal from judgment following a bench trial even though the point
was not raised in the trial court.”), with In re E.W., No. 22-0604, 2022 WL 2824733,
at *1 (Iowa Ct. App. July 20, 2022) (finding the appellate court could not reach an
unpreserved claim and noting, “Although it may be framed as a failure to preserve
error, the failure to contest termination may also be properly deemed waiver of the
challenge.”), and In re M.L.H., No. 16-1216, 2016 WL 4803999, at *1 (Iowa Ct.
App. Sept. 14, 2016) (“Although our prior cases have framed the issue as one
of error preservation, it may be more accurate to deem the father’s failure to
contest termination in the juvenile court as waiver.”). We need not untangle the
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tension in the case law to resolve this appeal, and we therefore assume error was
preserved and that the claim was not waived, and we proceed to the merits. See
State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999) (bypassing error-preservation
concern and proceeding to the merits).
IV. Standard of Review
We generally review an order to terminate parental rights de novo. In re
Z.K., 973 N.W.2d 27, 32 (Iowa 2022). “We are not bound by the juvenile court’s
findings of fact, but we do give them weight, especially in assessing the credibility
of witnesses.” Id. (quoting In re D.W., 791 N.W.2d 703, 706 (Iowa 2010)).
V. Statutory Elements
When parental rights are terminated under multiple statutory grounds, we
need only find clear and convincing evidence on one ground to affirm. In re S.R.,
600 N.W.2d 63, 64 (Iowa Ct. App. 1999). Here, we find it necessary to reach only
Iowa Code section 232.116(1)(e) (2022), which primarily requires proof the mother
failed to “maintain[ ] significant and meaningful contact with the child[ren].” The
HHS case manager testified the mother had no “face-to-face contact with the
children” from the time of their “removal in March of 2021” through the termination
hearing in May of 2022 and “had minimal video-conference visits with them during
that time frame.” Based on her testimony, we conclude the State proved that
termination was warranted under Iowa Code section 232.116(1)(e).
VI. Additional Time
The mother also claims the juvenile court erred in not granting her additional
time to “correct the situation and resume care of the child.” Like the juvenile court,
we reject this argument. To justify the grant of additional time, a parent is required
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to prove that the need for removal “will no longer exist at the end of the additional
six-month period.” Iowa Code § 232.104(2)(b) (2022). The mother did not carry
this burden.
The undisputed record evidence indicates that the mother had yet to
complete a mental-health or substance-abuse program during the life of these
cases. The mother also did not contest that she had no in-person contact with her
children in the approximately fourteen months leading up to termination. She has
persisted in her dysfunctional and unhealthy relationship with the paramour and
presently resides in a one-bedroom apartment with no plan in place to
accommodate the return of any child to her custody. Last, the mother has not had
any contact with the children’s schools, teachers, or therapists to make realistic
strides toward parenting the children.
As our court has observed before, “The crucial days of childhood cannot be
suspended while parents experiment with ways to face up to their own problems.”
In re D.A., 506 N.W.2d 478, 479 (Iowa Ct. App. 1993) (citation omitted). We, like
the juvenile court, find no reason to believe that the need for termination would
have been eliminated after four months of additional time. These children deserve
permanency, and the mother’s last-minute efforts did not justify an extension.
VII. The Bond Exception
Although not a model of clarity, the mother’s petition on appeal appears to
invoke the permissive bond exception codified at Iowa Code section 232.116(3)(c).
We, like the juvenile court, find the record does not support this exception and we
decline to apply it.
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The mother bears the burden of proof for a permissive exception. In re
A.S., 906 N.W.2d 467, 476 (Iowa 2018). Yet she offered no independent evidence
at the termination hearing and the record includes no discernible evidence that she
has any significant bond with these children, let alone a positive one that would
overpower the other considerations demonstrating termination is in the children’s
best interests.
The record evidence actually demonstrates the lack of any bond. As found
by the juvenile court, “Any parent-child relationship between [the mother] and the
children that may have been in existence prior to the children’s removal has been
totally destroyed by [the mother’s] actions and/or lack of action to improve her
situation, and none of the children have any desire to work on reinstating the
parent-child relationship.” We agree with this finding on de novo review and
decline to apply the bond exception as requested by the mother.
VIII. Best Interests of the Children
The mother’s final challenge is to whether termination is in the best interests
of the children. On our de novo review, we agree with the juvenile court that
termination is appropriate and serves the children’s best interests.
We find that the mother’s claim on appeal that she has “consistently shown
a strong motivation to be reunited with her child[ren]” is divorced from reality and
not supported by her conduct during the CINA and resulting termination cases.
The children had been out of the mother’s custody for about fourteen months at
the date of termination, and the mother made little progress during that time. The
children, on the other hand, have progressed significantly and have improved
mental health in their new placements.
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We are required to consider the quality of care the mother would provide if
the children were returned to her care, and we see little reason to believe that
environment would be any better today than it was when the CINAs were initiated.
See In re J.H., 952 N.W.2d 157, 171 (Iowa 2020) ("[T]he parents’ past performance
. . . may indicate the quality of care the parent is capable of providing in the future.”
(citation omitted)). Termination is in the best interests of these children.
AFFIRMED.