In the Interest of T.R., A.R., L.C., and K.C., Minor Children ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1271
Filed January 21, 2021
IN THE INTEREST OF T.R., A.R., L.C., and K.C.,
Minor Children,
A.R., Father,
Appellant,
T.M., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Madison County, Brendan Greiner,
District Associate Judge.
Parents separately appeal the termination of their parental rights to their
child. AFFIRMED ON BOTH APPEALS.
Julie A. Forsyth of Forsyth Law Office, P.L.L.C., Winterset, for appellant
father.
Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Penny B. Reimer of the Neighborhood Law Group of Iowa, attorney and
guardian ad litem for minor children.
Considered by Mullins, P.J., and May and Schumacher, JJ.
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MULLINS, Presiding Judge.
A mother and father separately appeal the termination of their parental
rights to their shared children, A.R. and T.R., born in 2012 and 2017, and the
mother appeals the termination of her parental rights to two of her other children,
K.C. and L.C., born in 2009 and 2010.1 The mother’s rights were terminated
pursuant to Iowa Code section 232.116(1)(a) (2020), and the father’s rights were
terminated pursuant to section 232.116(1)(j).2 The mother challenges the
sufficiency of evidence supporting the statutory ground for termination and argues
termination is contrary to the children’s best interests due to the closeness of the
parent-child bond. The father claims he was not offered reasonable efforts at
reunification, argues termination is contrary to his children’s best interests, and
requests the establishment of a guardianship in lieu of termination.
I. Background Facts and Proceedings
The unmarried parents and the four children came to the attention of the
Iowa Department of Human Services (DHS) in early 2019 upon allegations the
father was sexually abusing the older two children. The children had initially
disclosed the abuse to the mother, who took no action. When the children reported
it to their maternal grandmother with whom they were living in Colorado, she
reported it. The ensuing investigations by Colorado officials, which were
completed in June, were founded, but the cases were closed and transferred to
1 Guardianship and custody of the older two children was transferred to their father
upon termination. References to the father in this opinion are to the father of A.R.
and T.R. The other two children’s father will be referred to as K.C.
2 The State alleged several other grounds for termination of each parent’s rights.
The court hung its hat on paragraphs (a) and (j) and did “not feel it [was] necessary
to look further.”
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Iowa. The father was arrested the same month on three counts of second-degree
sexual abuse.3 At the time, the older two children were already residing with K.C.,
and the younger two remained with their maternal grandmother in Colorado. A no-
contact order was issued prohibiting the father from contacting the mother or two
older children. The mother requested the no-contact order be lifted as to her,
stating her belief the father was innocent and her desire that he be able to have
contact with his children.
The State filed child-in-need-of-assistance (CINA) petitions in early July. In
mid-August, the State moved for formal temporary removal of the older two
children from the mother’s care upon reports the mother instructed the children to
recant their allegations of sexual abuse against the father. The court entered an
order for temporary removal and placed the children in the legal custody of K.C.
under DHS supervision, which was confirmed following a hearing in late August.
Following an adjudication hearing in early October, the court adjudicated all
four children as CINA under section 232.2(6)(c)(2) and (n) (2019). The court
confirmed placement of the older two children and formally removed the younger
two children, placing them in DHS’s legal custody for placement in foster care in
Iowa. The court noted its concern for allowing the mother visitation but allowed
the mother two supervised visits per week. In mid-October, the State requested
the mother’s visitation with the older two children be at the discretion of DHS,
alleging the mother was dishonest in her testimony at the adjudication hearing in
3The State’s last amended trial information only charged two counts of second-
degree sexual abuse.
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regards to her communication with the father and that she then believed the father
was innocent. Following a hearing, the court granted the motion.
The father bonded out of jail in November, but he did not meaningfully
participate in services after he was released. As a result, DHS did not authorize
him to have visits with his children. While the father requested visitation or contact
with his children in some form at several hearings during the proceedings, he never
completed the conditions that were requested of him by DHS to allow for visits.
The father’s criminal trial was held in March, and a jury found him guilty on
two counts of second-degree sexual abuse. It appears the father failed to appear
for various days of the trial, including the final two, and a warrant issued for his
arrest. He was apprehended a little over a month later. In June, the father was
sentenced to two consecutive terms of imprisonment not to exceed twenty-five
years, both with mandatory minimums of seventy percent, for a total minimum
sentence of thirty-five years. In May, the mother was charged with one count of
perjury, two counts of child endangerment, and two counts of accessory after the
fact, in relation to the father’s abuse of the children and the ensuing criminal case
against him. Those charges were pending at the time of the termination hearing.
The mother continued to prioritize her relationship with the father over the
children throughout the proceedings. At some point during the proceedings, K.C.
and the children in his care moved to Colorado to be closer to the maternal
grandmother. Prior to the termination hearing, the State moved for modification of
placement of the other two children to the maternal grandmother upon the
approved home study under the Interstate Compact for Placement of Children. All
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parties agreed legal custody and placement with the maternal grandmother was
proper, and the court entered an order to that effect.
The State filed its termination petition in July. Prior to the first of the two-
day termination hearing in August and September, the mother submitted a written
consent to termination of her parental rights, in which she, among other things,
noted she “voluntarily, intelligently and for good cause, consents to the
termination.” At the first day of the termination hearing, the mother stated her
desire to have her rights terminated because she believed termination to be in the
children’s best interests.
As noted, the juvenile court terminated the mother’s rights under section
232.116(1)(a) (2020) and the father’s rights under section 232.116(1)(j). The court
rejected the father’s reasonable-efforts challenge and his request for a
guardianship in lieu of termination. The court found termination in the children’s
best interests and declined to apply statutory exceptions to preclude termination.
The parents separately appeal.
II. Standard of Review
Appellate review of orders terminating parental rights is de novo. In re L.T.,
924 N.W.2d 521, 526 (Iowa 2019). Our primary consideration is the best interests
of the children, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the defining elements
of which are the children’s safety and need for a permanent home. In re H.S., 805
N.W.2d 737, 748 (Iowa 2011).
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III. Analysis
A. Father
1. Reasonable efforts
The father first claims the juvenile court “erred in terminating [his] rights
pursuant to [section] 232.116(1)(j) as reasonable effort[s] were not provided to
alleviate the reason for removal and to reunify the children with their father and
reasonable efforts were not waived.” The father specifically complains DHS
disallowed him visitation for the entirety of the proceedings despite his alleged
participation in recommended services.
DHS “shall 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.” Iowa
Code § 232.102(9). “A child’s health and safety shall be the paramount concern
in making reasonable efforts.” Id. § 232.102(12). Our focus is on the services
provided and the father’s response, not on services he now complains were not
provided. In re C.B., 611 N.W.2d 489, 494 (Iowa 2000). DHS need only provide
those services that are reasonable under the circumstances. See In re S.J., 620
N.W.2d 522, 525 (Iowa Ct. App. 2000).
While the father asserted in his testimony and on appeal that he participated
in the services asked of him to facilitate visitation, we are unconvinced. The DHS
requested the father to participate in therapy and provide a therapeutic
recommendation that contact with his children would be appropriate. The father
failed to do so. The father requested visitation at various hearings, but he did not
follow through on any of the conditions for visitation. This circumstance, coupled
with the heinous crimes the father committed against the other two children—which
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the evidence suggests were committed in the same home and perhaps the
presence of the younger children—renders denial of visits reasonable under the
circumstances. We reject the father’s reasonable-efforts challenge.
2. Best interests
The father argues termination is contrary to the children’s best interest, but
he does not address the factors we consider in determining whether termination is
in a child’s best interests. Having given “primary consideration to the child[ren]’s
safety, to the best placement for furthering the long-term nurturing and growth of
the child[ren], and to the physical, mental, and emotional condition and needs of
the child[ren],” Iowa Code § 232.116(2), we conclude termination is in the
children’s best interests. The father will be in prison for at least thirty-five years,
and the children will be decades into adulthood before he is released.
Furthermore, the children are in a relative placement that is willing to adopt, has
provided them stability, and meets their regular and special needs. Continued
stability and permanency in this home are in this children’s best interests. See
Iowa Code § 232.116(2)(b); cf. In re M.W., 876 N.W.2d 212, 224–25 (2016)
(concluding termination was in best interests of children where children were well-
adjusted to placement, the placement parents were “able to provide for their
physical, emotional, and financial needs,” and they were prepared to adopt the
children).
3. Guardianship
The father argues the court should have applied the exception to
termination allowed to be applied when a relative has legal custody, see Iowa Code
§ 232.116(3)(a), and established a guardianship in the relative in lieu of
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termination. See id. § 232.117(5) (authorizing the court, following a termination
hearing, to enter an order in accordance with section 232.104 in lieu of terminating
parental rights); see also id. § 232.104(2)(d)(1) (allowing for transferring of
“guardianship and custody of the child to a suitable person”). We begin with the
principle that “a guardianship is not a legally preferable alternative 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. App. 2017)). Although section 232.104(2)(d) allows for the
establishment of a guardianship as a permanency option, section 232.104(3)
requires “a judicial determination that [such a] planned permanent living
arrangement is the best permanency plan for the child.” See B.T., 894 N.W.2d at
32–33. Determining the best permanency plan for a child is a best-interests
assessment, and we have already concluded termination is in the children’s best
interests. In addition, a guardianship, rather than termination, would not promote
stability or provide permanency in these young children’s lives. See In re R.S.R.,
No. 10-1858, 2011 WL 441680, at *4 (Iowa Ct. App. Feb. 9, 2011) (“So long as a
parent’s rights remain intact, the parent can challenge the guardianship and seek
return of the child to the parent’s custody.”). We find a guardianship would be
contrary to the best interests of these young children.
B. Mother
1. Sufficiency of evidence
While the mother “acknowledges she filed a signed, consent to termination
of parental rights,” she argues “this consent was not given voluntarily and
intelligently,” as required by Iowa Code section 232.116(1)(a). She claims “the
record is void of any proof, by clear and convincing evidence, [she] entered the
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consent to termination voluntarily and intelligently.” We disagree. Aside from the
mother’s written consent, she cogently testified at the termination hearing she
believed termination to be in the children’s best interests and she desired
termination. We find nothing in the record to negate the voluntary and intelligent
nature of the mother’s consent, and we find the evidence sufficient to support
termination under section 232.116(1)(a).
2. Best Interests
Next, the mother contends termination is contrary to the children’s best
interests due to the closeness of the parent-child bond. Having given “primary
consideration to the child[ren]’s safety, to the best placement for furthering the
long-term nurturing and growth of the child[ren], and to the physical, mental, and
emotional condition and needs of the child[ren],” Iowa Code § 232.116(2), we
conclude termination is in the children’s best interests. The evidence suggests the
mother knew the father was abusing two of her children, and when the children
reported the same to the mother, she turned a blind eye. The mother has
prioritized her relationship with the father over the safety and needs of her children.
As noted in relation to the father’s best-interests argument, the children are in
stable relative placements that can provide them permanency and satisfy their
needs; continued stability and permanency in these placements are in this
children’s best interests.
To the extent the mother requests the application of the statutory exception
to termination contained in Iowa Code section 232.116(3)(c), we conclude she
failed to meet her burden to show “that the termination would be detrimental to the
child[ren] . . . due to the closeness of the parent-child relationship[s].” See A.S.,
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906 N.W.2d at 476 (noting parent challenging termination bears burden to
establish an exception to termination).
IV. Conclusion
We affirm the termination of both parents’ parental rights.
AFFIRMED ON BOTH APPEALS.