In the Interest of C.P. and N.P., Minor Children ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1961
Filed May 11, 2022
IN THE INTEREST OF C.P. and N.P.,
Minor Children,
L.P., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,
District Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Raya D. Dimitrova of Carr Law Firm, P.L.C., Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, and Michelle R. Becker, Assistant
Attorney General, for appellee State.
Magdalena Reese of Des Moines Juvenile Public Defender, Des Moines,
attorney and guardian ad litem for minor children.
Considered by May, P.J., and Greer and Chicchelly, JJ.
2
MAY, Presiding Judge.
A mother appeals the termination of her parental rights to her children, C.P.
and N.P.1 She challenges the statutory grounds, claims termination is not in the
children’s best interests, contends the juvenile court should have applied a
permissive exception to termination to instead establish a guardianship, and
argues the juvenile court should have bifurcated the guardian ad litem (GAL) and
attorney role for N.P.’s representation. We affirm.
We review termination proceedings de novo. In re Z.P., 948 N.W.2d 518,
522 (Iowa 2020). “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 generally use a three-step analysis to review the termination of a
parent’s rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). We consider: (1)
whether grounds for termination have been established, (2) whether termination is
in the children’s best interests, and (3) whether we should exercise any of the
permissive exceptions to termination. Id. at 472–73. Then we address any
additional claims raised by the parent. In re K.M., No. 19-1637, 2020 WL 110408,
at *1 (Iowa Ct. App. Jan. 9, 2020).
We first address the mother’s challenge to the statutory grounds for
termination. Here, the juvenile court terminated the mother’s rights to C.P. and
1 The father consented to termination of his parental rights. He does not appeal.
3
N.P. pursuant to Iowa Code section 232.116(1)(f) (2021). Paragraph (f) authorizes
termination when:
(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of
assistance 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.
Iowa Code § 232.116(1)(f). The mother only challenges the last element, whether
the children can be safely returned to the mother’s care. See In re T.W., No. 20-
0145, 2020 WL 1881115, at *2–3 (Iowa Ct. App. Apr. 15, 2020).
We conclude the children cannot be safely returned to the mother. This is
in part because of the mother’s methamphetamine use. See In re A.D., No. 21-
1562, 2022 WL 246227, at *1 (Iowa Ct. App. Jan. 27, 2022) (recognizing “[a]
parent’s methamphetamine use, in itself, creates a dangerous environment for
children” (alteration in original) (citation omitted)). She has a long history with the
drug.2 She tested positive for methamphetamine as recently as May 18, 2021.3
The mother missed fifteen appointments with her substance-abuse counselor
between March 10, 2021 and September 30, 2021. During this time, she failed to
complete eighteen drug screens ordered by her counselor.4 “We presume these
2 This family was subject to a prior child-in-need-of-assistance proceeding, and the
mother’s methamphetamine use was also a concern during that proceeding.
3 The termination hearing occurred over two days on October 28 and November
18, 2021.
4 She also provided two urine samples that were not accepted due to being outside
the accepted temperature range.
4
missed tests would have been positive for illegal substances.” In re R.A., No. 21-
0746, 2021 WL 4891011, at *1 (Iowa Ct. App. Oct. 20, 2021) (collecting cases
noting missed tests are presumed positive). And “[a] parent’s methamphetamine
use, in itself, creates a dangerous environment for children.” In re J.P., No. 19-
1633, 2020 WL 110425, at *2 (Iowa Ct. App. Jan. 9, 2020). In addition to the
mother’s substance abuse, the mother also struggles with domestically-abusive
relationships. Cf. In re A.M., No. 19-1735, 2020 WL 825975, at *3 (Iowa Ct. App.
Feb. 19, 2020) (“If a parent ‘has gained very little insight’ over the course of the
proceedings about domestic violence and the danger it poses to the family,
returning young children to that parent’s care goes against their welfare.” (citation
omitted)). And she advocated for a domestically-abusive boyfriend to have contact
with the children, suggesting she does not appreciate the danger that domestic
abusers pose to her children. So we conclude the children could not be safely
returned to the mother, and a statutory ground authorizing termination is satisfied.
Next, we consider whether termination is in the children’s best interests.
When making a best-interests determination, we “give 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].” In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (quoting 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.” Id. at 41.
5
Termination is in the children’s best interests. C.P. has been diagnosed
with autism and is non-verbal. So he requires a high level of care. N.P. struggles
emotionally and has reported self-harm. And the mother simply cannot provide
the children with the care they require. So we conclude termination is in their best
interests.
Next, we consider whether any permissive exceptions should preclude
termination. See Iowa Code § 232.116(3). However, the burden of establishing
an exception rests with the parent. See A.S., 906 N.W.2d at 476. Here, the mother
asks us to apply an exception to termination due to her bond with the children.
See Iowa Code § 232.116(3)(c). We understand N.P. has expressed her desire
to return to the mother’s care. But we also believe young N.P.—who was only nine
years old at the time of the termination hearing—cannot fully appreciate the
dangers of returning to the mother. We do not think the parent-child bonds are so
strong as to overcome the dangers posed to these children. Rather, we agree with
the juvenile court that “[w]hile termination is likely to cause harm, that harm does
not outweigh the harm caused by the mother’s inability to address her substance
use, maintain a safe and appropriate home, or to meet the needs of her children.”
So we decline to apply this exception.
The mother also asks us to apply section 232.116(1)(a) to forgo termination
and establish a guardianship instead because the children were in the maternal
aunt’s legal custody. But we note the juvenile court never ruled on her request to
establish a guardianship as an alternative to termination. “If a party presents an
issue to the court, but the court does not rule on that issue, ‘the party raising the
issue must file a motion asking the court for a ruling in order to preserve the issue
6
for appeal.’” In re B.N., No. 14-1640, 2015 WL 582091, at *1 (Iowa Ct. App. Feb.
11, 2015) (citation omitted). And the mother did not file a motion requesting the
court address her request to establish a guardianship as an alternative to
termination. So we conclude the mother’s claim is not preserved for our
consideration. Nonetheless, we note two points: (1) “a guardianship is not a legally
preferable alternative to termination,” A.S., 906 N.W.2d at 477 (citation omitted),
and (2) it is not clear to us from the record that the maternal aunt would be willing
to take on the role of guardian.
Finally, we address the mother’s claim that, as to N.P., the juvenile court
should have bifurcated the GAL and child-attorney roles because—although N.P.
expressed a desire to return to the mother’s care—the GAL advocated for
termination. Unlike the rest of our review, “[w]e review the juvenile court’s refusal
to bifurcate the GAL and child attorney roles for an abuse of discretion.” In re J.V.,
No. 21-1769, 2022 WL 470335, at *2 (Iowa Ct. App. Feb. 16, 2022).
Iowa Code § 232.89(4) provides,
The same person may serve both as the child’s counsel and
as guardian ad litem. 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 interest of the child as guardian ad litem, or a separate guardian
ad litem is required to fulfill the requirements of subsection 2.
Subsection 2 provides:
Upon the filing of a petition, the court shall appoint counsel
and a guardian ad litem for the child identified in the petition as a
party to the proceedings. If a guardian ad litem has previously been
appointed for the child in a proceeding under subchapter II or a
proceeding in which the court has waived jurisdiction under section
232.45, the court shall appoint the same guardian ad litem upon the
filing of the petition under this part. Counsel shall be appointed as
follows:
7
a. If the child is represented by counsel and the court
determines there is a conflict of interest between the child and the
child’s parent, guardian, or custodian and that the retained counsel
could not properly represent the child as a result of the conflict, the
court shall appoint other counsel to represent the child, who shall be
compensated pursuant to the provisions of subsection 3.
b. If the child is not represented by counsel, the court shall
either order the parent, guardian, or custodian to retain counsel for
the child or shall appoint counsel for the child, who shall be
compensated pursuant to the provisions of subsection 3.
Iowa Code § 232.89(2).
Here, the mother sought to bifurcate the GAL and child-attorney roles for
N.P. part way through the second day of the termination hearing after a caseworker
testified that N.P. had expressed a desire to return to her mother’s care.5 In this
instance, we do not think the juvenile court abused its discretion when it denied
the eleventh-hour motion to bifurcate.
As we have explained, “it appears the older, more intelligent, and mature
the child is, the more impact the child’s wishes should have, and a child of sufficient
maturity should be entitled to have the attorney advocate for the result the child
desires.” In re A.T., 744 N.W.2d 657, 663 (Iowa Ct. App. 2007). So we “look at
the manifestation of [N.P.]’s wishes and her maturity” to determine if the juvenile
court should have bifurcated. See id.; see also id. at 665 (“We do not hold that an
attorney must always be appointed for a child in a termination. A [GAL] can, in
some situations, serve a dual role as both the [GAL] and the juvenile’s attorney.
When, however, a [GAL] recommends a disposition that conflicts with the juvenile’s
5The State argues the mother does not have standing to seek bifurcation. But we
need not address that issue here, because even assuming the mother has
standing, we conclude the juvenile court did not abuse its discretion in declining to
bifurcate.
8
wishes, the juvenile court may, under Iowa Code section 232.89, appoint
independent counsel to represent the child in situations where a child is of
sufficient age and maturity to make an informed decision about a potential
termination of a child’s relationship with his or her parents.” (emphasis added)
(citation omitted)). N.P. was nine years old at the time of the termination hearing.
And nothing in the record suggests N.P. is particularly mature for her age. On the
contrary, the record suggests N.P.’s age and level of maturity made it difficult for
her to understand the complexities and nuances of her mother’s struggles and the
potential danger her mother posed to her. So we conclude the juvenile court did
not abuse its discretion when it denied the motion to bifurcate.6
AFFIRMED.
6 We note the combined GAL and child-attorney informed the court of N.P.’s
desires to return to the mother’s care. So N.P.’s desires were communicated to
the court.