In the Interest of A.M. and K.M., Minor Children

IN THE COURT OF APPEALS OF IOWA
No. 20-1005
Filed November 30, 2020
IN THE INTEREST OF A.M. and K.M.,
Minor Children,
J.M., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Madison County, Brendan Greiner,
District Associate Judge.
A father appeals the termination of his parental rights. AFFIRMED.
Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Penny B. Reimer of Neighborhood Law Group of Iowa, P.C., West Des
Moines, attorney and guardian ad litem for minor children.
Considered by Mullins, P.J., and May and Schumacher, JJ.
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SCHUMACHER, Judge.
A special agent with the Iowa Division of Criminal Investigation (DCI)
interviewed the father of A.M. and K.M. on May 28, 2019, following the death of
A.M. and K.M.’s mother the previous day. During the interview, the father reported
to the agent that on May 27, 2019, after drinking for the majority of the day, he
pried open a gun safe located at his parents’ home and drove with a loaded
shotgun to the home where the children’s mother and her three daughters were
staying. He entered the mother’s bedroom and shot the mother.1 All three girls,
ages six years, four years, and two years, were in the home at the time of their
mother’s death.2
I. Standard of Review
The proper standard of review “for all termination decisions” isde novo. In
re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (overruling prior cases applying an abuse-
of-discretion standard of review to the question of whether termination is in the
best interests of the children); In re A.D.W., No. 12-1060, 2012 WL 3200891, at *2
(Iowa Ct. App. Aug. 8, 2012). We give deference to the factual findings of the
juvenile court, especially those relating to witness credibility, but we are not bound
by those determinations. In re G.A., 826 N.W.2d 125, 127 (Iowa 2012). Our
primary concern in termination proceedings is the best interests of the child. In re
L.T., 924 N.W.2d 521, 529 (Iowa 2019); In re L.H., 949 N.W.2d 268, 270 (Iowa Ct.
App. 2020).
1Along with this admission to the DCI agent, the father told the paternal
grandmother, his sister, and his best friend that he had shot the mother.
2 A.M. was born in 2012 and K.M. was born in 2014. S.M., born in 2016, is not the
biological child of the father and is not at issue here.
3
II. Procedural History
A brief procedural history is beneficial to this appeal. Following the death
of the mother and the incarceration of the father, the State secured a removal order
that placed the children in the temporary custody of the Iowa Department of Human
Services (DHS). The children were placed in the care of the maternal
grandmother. A child-in-need-of-assistance (CINA) petition was filed two days
later on June 5, 2019. When the father consented to the continued removal of the
children from parental custody, the removal hearing set for June 6 was canceled.
The children were adjudicated to be CINA by order filed June 20, 2019, pursuant
to Iowa Code section 232.2 6(c)(2) and (n) (2019). The court further found that the
aid of the court was required. Following adjudication, custody of A.M. and K.M.
was placed with the maternal grandmother subject to the supervision of DHS. S.M.
also resided with the maternal grandmother and her sisters. A motion for
placement filed by the paternal grandparents came before the court for hearing
simultaneously with a dispositional hearing.
On September 16, 2019, the district court filed a dispositional order denying
the paternal grandparents’ motion for placement. Custody of A.M. and K.M.
remained with the maternal grandmother, subject to the supervision of DHS. Both
the maternal grandmother and the paternal grandparents were allowed to
intervene as parties at different times in the underlying CINA case. Following a
permanency hearing, the court directed the State to initiate termination
proceedings between the father and A.M. and K.M.
A termination hearing was held on July 10, 2020, at which time the court,
without objection, took judicial notice of the underlying CINA files and the father’s
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pending criminal matter in FECR109148, including the trial information and
minutes of evidence. Also included in the admitted evidence were the transcripts
of the combined dispositional/placement hearing, a dispositional review hearing,
and the permanency hearing. Following the termination hearing, the court entered
an order terminating the parental rights of the father as to A.M. and K.M. pursuant
to Iowa Code section 232.116(1)(f) (2020).3
The father now appeals. He does not contest the statutory ground relied on
by the district court for termination. Thus, we need not address the ground relied
upon by the district court. See P.L., 778 N.W.2d at 40. Rather, the father argues
the district court erred in not granting guardianship of the children to the paternal
grandparents and further argues DHS failed to make reasonable efforts for
reunification purposes. He does not argue termination is not in the children’s best
interest, but rather, contends placement with the maternal grandmother was
contrary to the children’s best interests. We address each argument in turn.
III. Post-Termination Placement and Exception to Termination
The father argues, “The trial court erred when it ordered the children to
remain in the custody of their maternal grandparents.” With respect to this
argument, we first note that following the termination, the district court placed
custody and guardianship of A.M. and K.M. with DHS, rather than the maternal
grandmother. Secondly, we question the father’s standing to raise this issue. See
In re K.A., 516 N.W.2d 35, 38 (Iowa Ct. App. 1994) (concluding the parent had no
3On remand from the supreme court, the district court amended the termination
order to reflect that following entry of the termination of parental rights, custody
and guardianship of the children was placed with DHS.
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right to participate in a placement hearing following termination because “[t]he
termination of [the mother’s] rights concerning these three children divest[ed] her
of all privileges, duties, and powers with respect to the children.”); In re D.B., 483
N.W.2d 344, 346 (Iowa Ct. App. 1992) (refusing to consider mother’s argument
about where child should be placed following termination because the proper
termination of the mother’s rights divested her of “any legally recognizable interest
she would have concerning the guardianship or custody” of the child); In re J.C.,
No. 19-1985, 2020 WL 1049840, at *2 (Iowa Ct. App. Mar. 4, 2020).
The district court did not establish guardianship in either the maternal
grandmother or the paternal grandparents. However, the court had the authority
to place guardianship with a relative under Iowa Code section 232.117(3). Here,
the court was presented with two homes, that of the maternal grandmother and
that of the paternal grandparents. The evidence presented at the hearing indicated
both families could provide a home for the children. Following the death of the
mother, the children have resided continuously with the maternal grandmother.
Both DHS and the guardian ad litem advocated for as little disruption as possible
for the children. We find the district court acted in the children’s best interest in
placing custody and guardianship with DHS for determination of a pre-adoptive
placement.
To the extent the father argues an exception to termination should apply
pursuant to Iowa Code section 232.116(3)(c), we find he falls short of his burden
to demonstrate that an exception should be applied to prevent termination.
Guardianships are not “legally preferable” alternatives 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.
6
App. 2017)). We have found a guardianship appropriate when “no functional
difference” existed between guardianship and termination based on a child’s
placement with his grandmother. See B.T., 894 N.W.2d at 33 (holding ten-year-
old’s placement with grandmother as his guardian was no less permanent than
requiring grandmother to adopt child). Here, the children are very young and have
struggled a great deal since the death of their mother. The maternal grandmother
and the paternal grandparents have litigated extensively in juvenile court as to the
appropriate placement for the girls, which has increased the children’s anxiety
about their immediate and future placement. A termination of parental rights rather
than a guardianship will provide the children desperately needed permanency
following a year and a half of tumultuous litigation and the loss of their mother.
IV. Reasonable Efforts
The Code requires DHS to make reasonable efforts to return children to
their home—consistent with the children’s best interests. Iowa Code
§ 232.102(6)(b). “Reasonable efforts” include services offered to eliminate the
need for removal or to make it possible for the children to return safely to the family
home. Id. The duty to make reasonable efforts is not “a strict substantive
requirement of termination,” but the extent of the measures taken by DHS “impacts
the burden of proving those elements of termination which require reunification
efforts.” In re C.B., 611 N.W.2d 489, 493 (Iowa 2000); In re K.C., No. 18-1249,
2019 WL 325863, at *2 (Iowa Ct. App. Jan. 23, 2019).
While not set out as a separate issue, the father appears to also argue a
lack of reasonable efforts prevented reunification, specifically a lack of visitation
with his daughters since his incarceration. To the extent he makes this argument
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on appeal, he failed to raise the issue of reasonable efforts at the district court
level. While he alleges he preserved this issue by contesting the termination
petition and filing a notice of appeal, filing a notice of appeal is insufficient to
preserve error for review. See Thomas A. Mayes & Anuradha Vaitheswaran, Error
Preservation in Civil Appeals in Iowa: Perspectives on Present Practice, 55 Drake
L. Rev. 39, 48 (2006) (“While this is a common statement in briefs, it is erroneous,
for the notice of appeal has nothing to do with error preservation.” (footnote
omitted)); In re K.W., No. 15-0790, 2015 WL 4642786, at *1 (Iowa Ct. App. Aug. 5,
2015).
As noted by the DHS worker, since removal, the father has not inquired
about the girls’ well-being or asked for contact. Although DHS is required to make
reasonable efforts, “[i]n general, if a parent fails to request other services at the
proper time, the parent waives the issue and may not later challenge it at the
termination proceeding.” In re L.M., 904 N.W.2d 835, 840 (Iowa 2017). Here, the
father did not raise the issue of visitation or make a request for other services to
the district court, and as such, the issue is not preserved for appellate review.
[I]t is fundamentally unfair to fault the trial court for failing to
rule correctly on an issue it was never given the opportunity to
consider. Furthermore, it is unfair to allow a party to choose to
remain silent in the trial court in the face of error, taking a chance on
a favorable outcome, and subsequently assert error on appeal if the
outcome in the trial court is unfavorable.
State v. Pickett, 671 N.W.2d 866, 869 (Iowa 2003). Finding the father’s argument
unpreserved, we decline to address this issue.
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V. Best Interests
The father does not argue termination of his parental rights is not in the girls’
best interest. Rather, his best-interest argument again lands on placement of A.M.
and K.M., asserting that placement with the maternal grandmother is not in their
best interests. Iowa Code section 232.117(3) directs the juvenile court to transfer
a child’s guardianship and custody to one of the following upon termination: (1)
DHS; (2) a placement agency or other suitable entity licensed to provide care; or
(3) “a parent who does not have physical care of the child, other relative, or other
suitable person.” In re J.H., No. 20-0081, 2020 WL 2988759, at *2 n.2 (Iowa Ct.
App. June 3, 2020).
We reject the father’s argument. Following termination, the district court did
not direct placement at the maternal grandmother’s home. Rather, custody and
guardianship were placed with DHS. We have previously determined this to be in
the children’s best interest. As always, our primary concern is the best interest of
the children. See In re D.S., 563 N.W.2d 12, 14 (Iowa Ct. App. 1997); In re C.B.,
No. 11-1196, 2011 WL 5389707, at *1 (Iowa Ct. App. Nov. 9, 2011).
Even if we interpreted the father’s argument to allege termination is not in
the best interest of the children, this would not be a close call. The father has been
incarcerated since May 27, 2019, after he confessed to killing the children’s
mother. His criminal trial has been set for the spring of 2021. In the lapse of time
since the father’s confession to the murder of the children’s mother, A.M. and K.M.
have endured a great deal. Both A.M. and K.M. attend weekly mental-health
therapy and have been involved in grief counseling.
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A.M., in particular, was unable to manage her emotions and control her
anger after her mother’s death. Prior to her mother’s death, A.M. was described
as a child that took care of everybody else, “kind of a mother hen to classmates
and peers.” After her mother’s death, she demonstrated significant behavior and
emotional concerns in school, necessitating reassignment to the Four Oaks
Classroom. While she is improving, the evidence demonstrates the fragility of the
children and the importance of limiting further disruptions in their lives. The
maternal grandmother has been caring for A.M. and K.M. since their mother’s
death and is the guardian of S.M., the girls’ half-sister to whom they are bonded.4
We find termination of the father’s parental rights to be in A.M.’s and K.M.’s best
interest.
VI. Conclusion
We reject the father’s request for guardianship as a permanency option and
find his reasonable-efforts argument to be unpreserved. We find termination is in
the best interest of A.M. and K.M., and that placing custody and guardianship with
DHS for a pre-adoptive placement decision is in the children’s best interest.
Accordingly, we affirm the district court.
AFFIRMED.
4 At the permanency hearing, the biological father of S.M. consented to a
guardianship, which allowed him to remain involved with his daughter. Through
counsel, he expressed his belief it was in his daughter’s best interest to remain
with her siblings.