In the Interest of E.C., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 22-1458
Filed December 7, 2022
IN THE INTEREST OF E.C.,
Minor Child,
L.T., Mother,
Appellant,
G.C., Father,
Appellant.
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Appeal from the Iowa District Court for Muscatine County,
Gary P. Strausser, District Associate Judge.
Parents separately appeal the termination of their parental rights.
AFFIRMED ON BOTH APPEALS.
Esther J. Dean, Muscatine, for appellant mother.
Christopher J. Foster of Foster Law Office, Iowa City, for appellant father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena and
Mackenzie Moran, Assistant Attorneys General, for appellee State.
Jean Pfeiffer of Muscatine Legal Services, Muscatine, attorney and
guardian ad litem for minor child.
Considered by Bower, C.J., and Greer and Badding, JJ.
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BADDING, Judge.
The child who is the subject of these termination appeals—E.C., born in
October 2020—has an older brother who suffered non-accidental brain injuries
twice while in the care of the mother. Because the juvenile court considered the
mother to be dangerous, E.C. was removed from her care the day after she was
born. After more than a year of services, a termination hearing was held, following
which the juvenile court entered a ruling terminating both parents’ rights. E.C.’s
mother and father separately appeal, challenging the sufficiency of the evidence
supporting the grounds for termination and arguing they should be given more time
to work toward reunification. We affirm.
I. Background Facts and Proceedings
E.C.’s older brother, J.T.,1 was born in June 2019. The next month, the
mother took J.T. to the hospital when she noticed that he was having seizures
while they were at a friend’s house. After admission to the hospital, J.T. was found
to have subdural and retinal hemorrhages. Medical staff said the child’s injuries
could only be from someone shaking him “excessively and aggressively with
force.” Because three people were caring for the child when the injuries occurred,
the mother included, a child protective assessment was founded against an
unknown perpetrator. The mother agreed to a safety plan with the Iowa
Department of Health and Human Services and moved in with her great-
grandparents, who supervised her contact with J.T.
1 J.T. has a different father than E.C. All references to the father are to E.C.’s
father.
3
The department eventually determined that the mother’s contact with J.T.,
who was doing well, no longer needed to be supervised. Soon after, in October
2019, the mother found J.T. unresponsive, “blue and not breathing,” in his pack
and play. He was rushed to the hospital where it was determined that he sustained
severe trauma to his brain. J.T.’s medical team found these were new injuries and
much more serious than before, though they were once again caused by “being
shook repetitively over and over again and/or with she[e]r force.” A department
caseworker testified that J.T. will likely “never walk, talk, have voluntary movement
on his own, eat on his own. He will be permanently blind, and he does not have
the ability to maintain his own body temperature on his own.”
A criminal investigation into J.T.’s injuries discovered that in the days before
the mother found the infant unresponsive, she deleted the web searches on her
phone. But law enforcement was able to recover the following Google searches
from her phone: “symptoms of blindness in babies,” “what does it mean if there is
a film on my baby’s eyes,” “can spinal stenosis happen from trauma,” “can you go
paralyzed from being squeezed in the neck,” “my baby’s pupils are big,” “my baby
stopped breathing while sleeping,” “I’m not bonding with my baby,” and “reasons
for low temp and babies.”
The mother was found to be responsible for the injuries to J.T. on both
occasions.2 Criminal charges were filed against her for child endangerment
resulting in serious injury. Those charges were still pending when E.C. was born
in October 2020. As for E.C.’s father, he was possibly affiliated with a gang and
2J.T. was adjudicated a child in need of assistance, reasonable efforts for the
mother were waived in July 2020, and her rights were terminated in May 2021.
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incarcerated on a charge of terrorism at the time of her birth. Because of these
concerns, coupled with the department’s belief that the mother would flee the state
with E.C., the State obtained an order for E.C.’s temporary removal the day after
she was born, which was confirmed following a formal hearing in November. In
December, the child was adjudicated as in need of assistance.
As the case progressed, the department acknowledged that “[i]n terms of
services, [the mother] has done everything that she has been asked or court
ordered to do,” and more, including mental-health therapy, anger management,
and parenting education. And her visits with E.C. went “extremely well.” But, as
the caseworker pointed out, “there is one significant thing that she has failed to do.
She has failed to take responsibility for her son’s injuries,” which “makes it difficult
for the department to determine if [she] could safely parent [E.C].” Rather than
taking responsibility, the mother provided varying explanations about why J.T.’s
injuries were accidental. All of those explanations were ruled out by medical
professionals, who determined that the injuries were non-accidental.
In July 2021, the State petitioned to terminate both parents’ parental rights.
At the time of the termination hearing in November, the father was in prison with
no prospect for release in the foreseeable future. Because he had been
incarcerated since before E.C. was born, he had very little contact with her. As for
the mother, the department continued to have serious concerns about her ability
to safely parent the young child, so she never progressed beyond fully supervised
visits. In her testimony, the caseworker explained:
Our concern is that she’s not taken accountability for those
injuries [to J.T]. So the concern is that the services that she has
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participated in have not really been effective at addressing the abuse
that occurred.
And despite some of those services, she’s also continued to
struggle. Throughout the course of this case, she’s struggled with
substance abuse, and I think she struggles at times to regulate her
emotions.
When asked why the child could not be returned to the mother’s care, the worker
said,
I believe she’s unsafe. I believe the adjudicatory harm has
not been alleviated. There’s still a significant likelihood that she
could be physically abused by [the mother], based on the fact that I
don’t think services have effectively addressed the reason for the
abuse because she hasn’t taken accountability.
In her testimony, the mother stated, “I don’t have any answers” when asked
about the cause of J.T.’s injuries. While the mother said that she took “full
accountability” for his injuries, she still asserted they were accidental. She also
testified that the opinions of medical professionals about the causes of the injuries,
and the searches recovered from her phone, were “not accurate.” The mother was
set to go to trial on the charges stemming from J.T.’s injuries in January 2022,
although she believed the trial would be continued.
In its ruling,3 the juvenile court terminated the mother’s parental rights under
Iowa Code section 232.116(1)(g) and (h) (2021) and the father’s rights under
section 232.116(1)(e) and (h). Both parents appeal.
II. Analysis
Our review of termination proceedings is de novo. In re L.B., 970 N.W.2d
311, 313 (Iowa 2022). An order terminating parental rights will be upheld if there
3 While the termination hearing took place in November 2021, the court did not file
its ruling until August 2022, shortly after the department moved to suspend the
mother’s visits due to her negative and violent behaviors.
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is clear and convincing evidence of the statutory grounds for termination. Id. We
use a three-step analysis to review the termination of a parent’s rights, which
begins with whether the grounds for termination have been established. See id.;
see also Iowa Code § 232.116(1)–(3). The paramount concern is the child’s best
interests. L.B., 970 N.W.2d at 313.
The parents purport to challenge just the first step in the analysis,4 with each
claiming the evidence was not sufficient under the grounds used to terminate their
parental rights. Focusing on Iowa Code section 232.116(1)(h), which the court
relied on in terminating both parents’ rights, see In re D.W., 791 N.W.2d 703, 707
(Iowa 2010) (noting the appellate court may affirm termination “on any ground we
find supported by clear and convincing evidence”), the mother argues the child
could have been returned to her “care if given an additional six months to reunify.”
The father likewise submits the child could have been returned to the mother if she
was allowed additional time.
The snag in their arguments is that the State only had to prove the child
could not be returned to parental custody at the time of the termination hearing.
See Iowa Code § 232.116(1)(h)(4) (requiring “clear and convincing evidence that
4 We note that in her challenge to termination under section 232.116(1)(g), the
mother passively suggests: “It was not in the child’s best interests for her mother’s
rights to be terminated.” Similarly, in her challenge to termination under
paragraph (h), the mother submits: “Reasonable efforts were never made to place
the child with her mother.” But because the mother does not supply freestanding
substantive arguments on these issues, we consider them waived. See In re
C.B., 611 N.W.2d 489, 492 (Iowa 2000) (“A broad, all encompassing argument is
insufficient to identify error in cases of de novo review.”); L.N.S. v. S.W.S., 854
N.W.2d 699, 703 (Iowa Ct. App. 2013) (“Where a party has failed to present any
substantive analysis or argument on an issue, the issue has been waived.”); see
also Iowa R. App. P. 6.903(2)(g)(3).
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the child cannot be returned to the custody of the child’s parents . . . at the present
time”); D.W., 791 N.W.2d at 707 (interpreting the statutory language “at the present
time” to mean “at the time of the termination hearing”). Based on the parents’
agreement that the child could not be returned to them at that time, we affirm
termination under section 232.116(1)(h) as to both parents. See, e.g., In re Z.R.,
No. 21-1290, 2022 WL 1487119, at *2 (Iowa Ct. App. May 11, 2022) (“The mother’s
concession amounts to clear and convincing evidence that the child could not be
returned to her care at the time of the termination hearing.” (cleaned up)). We also
observe, as to the father, that he lacks standing to challenge termination of his
rights based on an argument belonging to the mother. See In re S.O., 967 N.W.2d
198, 206 (Iowa Ct. App. 2021) (“[O]ne parent cannot assert facts or legal positions
pertaining to the other parent because the juvenile court makes a separate
adjudication as to each parent.”).
In her final brief point, the mother highlights the exception to termination
when a relative has legal custody of the child—a point the father echoes. See
Iowa Code § 232.116(3)(a). But both acknowledge that exception does not
actually apply since E.C. was not in a relative’s care; they just wished that she was.
The mother then repeats her argument that “the court could have and should have
granted additional time for [her] to work toward reunification with her child which
she requested.”
We reject this argument because the mother “has not enumerated what
factors, conditions, or expected behavioral changes will alleviate the need for
removal at the end of an extension.” In re L.S., No. 21-2000, 2022 WL 2826024,
at *1 (Iowa Ct. App. July 20, 2022). And she agreed in her testimony that another
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six months would not “affect a change of this situation.” The mother also still has
pending criminal charges, with the possibility of receiving a term of confinement
following trial on those charges. Cf. id. (“We don’t even know if he will be out of
jail or prison by then. So we have no basis to conclude an extension of time is
warranted.”).
Finally, because the mother has refused to take responsibility for the injuries
to her other child, the department has been unable to assess whether her
participation in services has addressed the issues leading to that child’s abuse.
Based on the mother’s ongoing refusal to accept responsibility, that circumstance
is unlikely to change in six months. See In re N.F., 579 N.W.2d 338, 341 (Iowa Ct.
App. 1998) (“[A] good prediction of the future conduct of a parent is to look at
the past conduct.”). This is especially so considering the mother’s psychological
evaluation, which noted that she would need “prolonged psychotherapy” to
acknowledge the abuse “and begin to understand the psychological forces that led
her to engage in” such behavior.
The father also requests more time, but his tentative discharge date is not
until 2027, well beyond the six-month extension period. To the extent that he is
requesting more time for the mother, he has no standing to do so. See S.O., 967
N.W.2d at 206.
For these reasons, we affirm the termination of both parents’ rights and
deny their requests for additional time.
AFFIRMED ON BOTH APPEALS.