In the Interest of E.M., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 22-0535
Filed June 15, 2022
IN THE INTEREST OF E.M.,
Minor Child,
S.M., Mother,
Appellant,
A.G.-C., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Cheryl Traum, District
Associate Judge.
The mother and father separately appeal the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
Rebecca G. Ruggero, Davenport, for appellant mother.
Timothy J. Tupper of Tupper Law Firm, Davenport, for appellant father.
Thomas J. Miller, Attorney General, Ellen Ramsey-Kacena, Assistant
Attorney General for appellee State.
Christine D. Frederick of Zamora, Taylor, Woods, & Frederick, Davenport,
attorney and guardian ad litem for minor child.
Considered by May, P.J., and Greer and Chicchelly, JJ.
2
GREER, Judge.
The mother and father of E.M., born in 2016, separately appeal the
termination of their parental rights. The juvenile court terminated the mother’s and
father’s parental rights under Iowa Code section 232.116(1)(b), (d), (e), and (f)
(2021). Additionally, the court also terminated the mother’s parental rights under
section 232.116(1)(l). The mother argues she was denied due process, the State
failed to make reasonable efforts to reunify her with E.M., and termination is not in
the child’s best interests. The father limits his appeal to an argument that the
juvenile court should have applied a permissive exception to save his parent-child
relationship with E.M., claiming his bond with the child is so strong that termination
of his rights will be to the child’s detriment. See Iowa Code § 232.116(3)(c).
I. Background Facts.
This family came to the attention of the Iowa Department of Human Services
(DHS) in October 2019 when the father assaulted the mother in the child’s
presence. It was alleged both parents were using methamphetamine at the time.
The father was arrested for domestic abuse causing bodily injury.
In December, DHS received additional allegations the mother was using
methamphetamine while caring for the children and also taking heroin
intravenously. The same month, DHS learned the mother left her three children—
then thirteen, seven, and three years old—home alone for multiple days while she
left the state of Iowa.1 The property manager found the children in the home
1 The mother has two other children with a different biological father. Child-in-
need-of-assistance (CINA) cases were also opened for them, and they were
removed from the mother’s care. The siblings’ CINA cases closed with a bridge
3
without a working phone or an adult present. As a result, the mother was charged
with two counts of child endangerment.
In January 2020, the mother submitted to drug testing and tested positive
for methamphetamine. E.M. was moved to the home of a family friend as part of
a safety plan, and the older two children moved in with their father.
E.M. was formally removed from the parents’ care and adjudicated CINA in
March 2020. Following E.M.’s removal, the father was in and out of incarceration,
including a period when he went on the run. He was caught and imprisoned from
January 2021 through the second and final day of the termination trial on February
17, 2022. Because of the father’s conviction for child endangerment causing bodily
injury, the prison refused DHS’s request for E.M. to have visits with the father. As
an alternative to traditional visits, DHS encouraged the father to send letters to
E.M. to maintain contact, but the father never sent any.
Between November 2020 and October 2021, the mother was largely
disengaged and missing. During the nearly year-long period, her only visits with
E.M. were on February 27, March 17, and May 21, 2021, and the mother ended
the May visit after twenty minutes. The mother did not participate in other services,
failed to stay in contact with DHS, and did not attend court hearings. 2 During this
same stretch of time, she was charged with several crimes. Even after the mother
re-engaged in October 2021—after the termination petition was filed—she
order when they were placed in the care of their father. The mother’s rights to the
two older children are not at issue in this appeal.
2 The mother missed a review hearing in November 2020, a permanency hearing
in March 2021, and a permanency review hearing in September 2021. She was
represented by an attorney who was present at each of the hearings.
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continued to use methamphetamine.3 She also missed some of her once-weekly
visits with E.M. and generally refused to participate in services led by the family
support specialist (FSS). At the final day of trial, she testified she would be entering
inpatient treatment for substance abuse the next day. And the mother was
awaiting sentencing for crimes to which she already pled guilty: possession of a
controlled substance and failure to affix a drug tax stamp. She testified she “took
a plea agreement of two to five years of probation supervised”; it is not clear if the
criminal court was bound by this agreement or if the mother faced potential
incarceration.
Neither parent claimed E.M. could be returned to their custody as of the
termination trial. The mother thought she needed thirty days, three months, or six
months to be ready. The father claimed he would be released from prison in late
March or early April 2022 and suggested he could immediately begin caring for
E.M., but there was no evidence about where he would live, what requirements he
may have to follow post-release, or any services he completed during prison to
address his substance abuse and perpetration of domestic violence.
The juvenile court terminated both the mother’s and the father’s parental
rights; each appeals.
3 The following was the mother’s testimony on February 17, 2022 about her
sobriety:
Q. Okay. When is your sober date? A. Like a month ago. A
couple months ago.
Q. If you indicated to CADS that it was a week ago, would that
be correct? A. What are you talking about?
Q. Your sober date is a week ago, correct? That’s what CADS
was told? A. A week ago?
Q. Correct. You used a week ago? A. It has been a little
longer than a week.
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II. Standard of Review.
Our review of termination proceedings is de novo. In re D.G., 704 N.W.2d
454, 457 (Iowa Ct. App. 2005). “[I]n termination of parental rights proceedings
each parent’s parental rights are separate adjudications, both factually and
legally,” so we consider each parent’s appeal individually. Id.III. Discussion.
A. Mother’s Appeal.
The juvenile court terminated the mother’s parental rights under Iowa Code
section 232.116(1)(b), (d), (e), (f), and (l). The mother does not contest any of the
statutory grounds directly. See L.N.S. v. S.W.S., 854 N.W.2d 699, 703 (Iowa 2013)
(“Where a party has failed to present any substantive analysis or argument on an
issue, the issue has been waived.”). She challenges whether reasonable efforts
were made to reunify her with E.M., which impacts the State’s burden of proof for
some grounds of termination—but not all. See In re C.B., 611 N.W.2d 489, 493
(Iowa 2000) (“[T]he scope of the efforts by DHS to reunify the parent and child after
removal impacts the burden of proving those elements of termination which require
reunification efforts. The State must show reasonable efforts as part of its ultimate
proof the child cannot be safely returned to the care of a parent.” (internal citations
omitted)).
Section 232.116(1)(b), which the court may rely on to terminate parental
rights when “there is clear and convincing evidence that the child has been
abandoned or deserted,” does not contain a reasonable-efforts requirement. See
In re M.D., No. 19-1912, 2020 WL 567320, at *1 (Iowa Ct. App. Feb. 5, 2020)
(collecting cases in support of statement). As the mother does not challenge the
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court’s finding of abandonment or desertion, and her reasonable-efforts
challenge—even if preserved4—would not impact this ground, she has waived any
challenge to termination under paragraph (b). We affirm under this ground.5
Much like her reasonable-efforts challenge, the mother argues she was
denied substantive due process because DHS “made little or no effort to locate
[her] during the pendency of the CINA matter until it decided to file” the termination
petition. She argues DHS had an obligation to work harder trying to persuade her
to engage with services and visits.6 But the mother never raised this issue to the
4 Because “we need only find grounds to terminate under one of the sections cited
by the juvenile court to affirm,” In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999),
we do not consider whether the mother preserved a challenge as to the State’s
efforts or how those efforts may impact the other statutory grounds.
5 As defined in section 232.2(14), desertion
means the relinquishment or surrender of a period in excess of six
months of the parental rights, duties, or privileges inherent in the
parent-child relationship. Proof of desertion need not include the
intention to desert, but it is evidenced by the lack of attempted
contact with the child or by only incidental contact with the child.
“Abandonment of a child” is
the relinquishment or surrender, without reference to any particular
person, of the parental rights, duties, or privileges inherent in the
parent-child relationship. Proof of abandonment must include both
the intention to abandon and the acts by which the intention is
evidenced. The term does not require that the relinquishment or
surrender be over any particular period of time.
Iowa Code § 232.2(1).
Between March 18 and October 2021—a period of more than six months—
the mother visited with E.M. only one time, and that visit lasted only twenty minutes
before the mother ended it prematurely. The mother was not otherwise financially
or emotionally supporting E.M. during this time.
6 In her petition on appeal, the mother asserts she “was denied due process during
the time DHS failed to meaningfully reach out to her and give her notice (BEFORE
the termination petition was filed) that losing her [child], forever, was right around
the corner.” The mother may not have internalized that termination of her rights
was possible before the county attorney filed the petition to terminate, but as early
as March 2020, a court order informed the parents:
You are advised that your children are in an out-of-home placement.
The time allowed by law to resolve the issues of abuse and neglect
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juvenile court and, accordingly, never got a ruling on it. It is not preserved for our
review, so we do not consider it. See In re A.B., 815 N.W.2d 764, 773 (Iowa 2012)
(“[T]he general rule that appellate arguments must first be raised in the trial court
applies to CINA and termination of parental rights cases.”); In re K.C., 660 N.W.2d
29, 38 (Iowa 2003) (“Even issues implicating constitutional rights must be
presented to and ruled upon by the district court in order to preserve error for
appeal.”).
Finally, the mother argues termination of her parental rights is not in E.M.’s
best interests. See Iowa Code § 232.116(2). “A child’s safety and the need for a
permanent home are now the primary concerns when determining a child’s best
interests.” In re J.E., 723 N.W.2d 793, 801 (Iowa 2006) (Cady, J., concurring
specially). By the second, final day of the termination trial in February 2022, E.M.
had been out of the mother’s care for nearly two years. During that time, the
mother did not make any progress in addressing her addiction to
methamphetamine and, despite the mother’s claims to the contrary, no evidence
suggests E.M. will be safe in the mother’s care in the near future. In contrast, E.M.
is happy in the home of the foster parent, where E.M. has lived since June 2020.
The social worker testified, “[E.M.] absolutely loves [and is] thriving in [the] current
so that your children can be safely returned to you is limited. If your
children are under age four, this may be as short as six months.
What you do, what you say, and how you act from now on will be
considered in determining whether or not your children remain at risk
of harm. Failure to participate in services, failure to change your
parenting, failure to recognize the need to change your parenting,
your lifestyle, or choices you make which affect the health, safety, or
welfare of your children may result in termination of your parental
rights.
(Emphasis added.)
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environment.” E.M. was described as “happy” and “content,” and the foster mother
meets E.M.’s needs. Additionally, E.M. calls the foster parent “mommy,” and the
foster parent intends to adopt E.M. See Iowa Code § 232.116(2)(b)(1).
Terminating the mother’s parental rights will allow for E.M. to be adopted and
achieve permanency, which is in E.M.’s best interests. See In re P.L., 778 N.W.2d
33, 41 (Iowa 2010).
We affirm the termination of the mother’s parental rights to E.M.
B. Father’s Appeal.
The juvenile court terminated the father’s parental rights under Iowa Code
section 232.116(1)(b), (d), (e), and (f). On appeal, the father’s only argument is
that the juvenile court should have applied a permissive exception to save his
parent-child relationship with E.M., claiming his bond with the child is so strong
that termination of his rights will be to the child’s detriment. See Iowa Code
§ 232.116(3)(c) (allowing the court to forgo termination when “[t]here is clear and
convincing evidence that the termination would be detrimental to the child at the
time due to the closeness of the parent-child relationship”). He has the burden to
establish the exception should be applied to save the parent-child relationship.
See In re A.S., 906 N.W.2d 467, 476 (Iowa 2018).
The father did not put forth any evidence at the termination trial to support
the application of this exception—either to show the strength of his and E.M.’s
relationship or to demonstrate the detriment E.M. would experience. The evidence
that was put forth established the father did not see E.M. for more than one year
leading up to the trial and did not write letters to the child. When the FSS was
asked whether “[E.M.] has a bond with dad,” she responded, “I don’t think so” and
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pointed to how little E.M. mentions the father. And as we stated when addressing
the mother’s appeal, E.M. is integrated into the foster family and is thriving in that
environment. Any detriment corresponding to the termination of the father’s rights
does not outweigh the benefit of permanency E.M. will be afforded. See In re D.W.,
791 N.W.2d 703, 709 (Iowa 2010) (“[O]ur consideration must center on whether
the child will be disadvantaged by termination, and whether the disadvantage
overcomes [the parent’s] inability to provide for [the child’s] developing needs.”).
The application of section 232.116(3)(c) is not warranted here.
We affirm the termination of the father’s parental rights.
AFFIRMED ON BOTH APPEALS.