In the Interest of L.S., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 22-0688
Filed August 31, 2022
IN THE INTEREST OF L.S.,
Minor Child,
S.S., Father,
Appellant,
A.J., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,
District Associate Judge.
The mother and father separately appeal the termination of their respective
parental rights to their child. AFFIRMED ON BOTH APPEALS.
Teresa M. Pope of Branstad & Olson Law Office, Des Moines, for appellant
father.
Raya Dimitrova of Carr Law Firm, Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Lynn Marie Vogan of the Youth Law Center, Des Moines, attorney and
guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
2
GREER, Judge.
The mother and father separately appeal the termination of their parental
rights to L.S., who was born in early 2021. The juvenile court terminated each
parent’s rights under Iowa Code section 232.116(1)(e) and (h) (2022); the court
also terminated the mother’s rights under paragraph (l).
We review termination decisions de novo. In re A.H., 950 N.W.2d 27, 33
(Iowa 2020). Termination of parental rights under chapter 232 follows a three-step
process. Id. But our review on appeal is confined to those issues that—after being
properly preserved—are actually raised and briefed on appeal by the parent
challenging termination. See Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996)
(“We exercise our de novo review only with respect to issues raised and preserved
at trial. Similarly, our review is confined to those propositions relied upon by the
appellant for reversal on appeal.” (internal citation omitted)). Because “each
parent’s parental rights are separate adjudications, both factually and legally,” we
consider each parent’s appeal separately. In re J.H., 952 N.W.2d 157, 171 (Iowa
2020).
I. Mother’s Appeal.
On appeal, the mother focuses her argument on whether she should have
been given additional time to work toward reunification with L.S.1 The court may
1 In her petition on appeal, the mother also “urges [us] to overturn the district court’s
denial of her . . . [m]otion for [r]easonable [e]fforts.” We have not found a written
motion for reasonable efforts in the record before us, and it is unclear to what the
mother is referring. At the termination trial, the mother’s attorney asked if she was
“going to request out of this court today . . . to increase the time [she] spends with
[L.S.]” and the mother said, “Yes.” To the extent the mother intended this
statement to be a motion for reasonable efforts, it was made too late. See, e.g.,
3
delay permanency and give the parent more time to work toward reunification
when it can point to “specific factors, conditions, or expected behavioral changes
which comprise the basis for the determination that the need for removal of the
child” from the parent’s care will “no longer exist at the end of the” extension. Iowa
Code § 232.104(2)(b). The juvenile court declined the mother’s request for an
extension, concluding her recent progress—when compared to the life of the
case—was not enough to convince the court that she could be reunified with L.S.
within six months.
The mother admits she used methamphetamine during her pregnancy with
L.S. The child was born more than ten weeks premature, and both he and the
mother tested positive for methamphetamine and amphetamine at his birth. L.S.
was formally removed from the parents’ care in April 2021, when he was about two
months old, before ever being discharged from the hospital. The mother continued
to use methamphetamine until January 2022, when she entered inpatient
treatment. According to the mother’s testimony, she had been sober sixty-four
days at the time of the termination trial in late March 2022. She was at level zero
in substance-abuse treatment at House of Mercy, which has four levels. She
testified it can take twelve to fourteen months to complete all four levels. But most
people move from level zero to level one within the first thirty days, while the
mother had been at level zero for nearly two months. Additionally, the mother has
a long history of using methamphetamine; she testified she was thirty-three and
had started using the drug when she was seventeen years old.
In re T.S., 868 N.W.2d 425, 442 (Iowa Ct. App. 2015) (“[W]e will not review a
reasonable efforts claim unless it is raised prior to the termination hearing.”).
4
While the mother had made some progress at the time of the termination
hearing, it was—as the juvenile court put it—“ninth inning progress.” See In re
A.D., No. 15-1508, 2016 WL 902953, at *2 (Iowa Ct. App. Mar. 9, 2016) (“Iowa
courts look skeptically at ‘last-minute’ attempts to address longstanding issues,
finding them inadequate to preclude termination of parental rights.”). We
commend the mother for the steps she recently took toward achieving sobriety and
treating her mental health but, even if—in the best case scenario—the mother is
still engaged with inpatient treatment in six months, we do not think L.S. could be
returned to her care at that time. At that point, all of the mother’s sobriety would
have been achieved in an institutional setting; it would not show the mother can
remain sober and safely parent L.S. in a less structured environment. See In re
N.F., 579 N.W.2d 338, 341 (Iowa 1998) (“[I]n considering the impact of a drug
addiction, we must consider the treatment history of the parent to gauge the
likelihood the parent will be in a position to parent the child in the foreseeable
future. Where the parent has been unable to rise above the addiction and
experience sustained sobriety in a noncustodial setting, and establish the essential
support system to maintain sobriety, there is little hope of success in parenting.”
(internal citations omitted)).
We agree with the juvenile court that delaying permanency for L.S. to give
the mother additional time is not in the child’s best interests. See In re L.M., 904
N.W.2d 835, 840 (Iowa 2017) (acknowledging the parent’s “substantial progress”
on their “rehabilitation journey” but finding termination was in the child’s best
interests because, “[g]iven the history revealed in the record of [the] case, the
5
journey [was] likely a long one and [was] far from complete”). We affirm the
termination of the mother’s parental rights.2
II. Father’s Appeal.
The juvenile court terminated the father’s parental rights under Iowa Code
section 232.116(1)(e) and (h). In his petition on appeal, the father only challenges
termination under paragraph (e). As we need only one ground to affirm, see In re
A.B., 815 N.W.2d 764, 774 (Iowa 2012), and because the father’s failure to make
an argument challenging termination under paragraph (h) constitutes waiver of that
issue, see In re P.L., 778 N.W.2d 33, 40 (Iowa 2010), we conclude there is clear
and convincing evidence for termination under section 232.116(1)(h).
Next, the father argues termination of his parental rights is not in L.S.’s best
interests. We are required to apply the best-interests framework set out by the
legislature, which provides that “[t]he primary considerations are ‘the child’s safety,’
‘the best placement for furthering the long-term nurturing and growth of the child,’
and ‘the physical, mental, and emotional condition and needs of the child.’” P.L.,
778 N.W.2d at 37 (quoting Iowa Code § 232.116(2)). While family integrity is
important, see In re J.E., 723 N.W.2d 793, 800 (Iowa 2006), the defining elements
in a child’s best interests is the “child’s safety and his or her need for a permanent
home.” Id. at 802 (Cady, J., concurring specially).
2 The mother “asserts that the denial of her request for additional time to reunify
with her child[] violates her due process rights and equal protection under the
United States Constitution and Iowa Constitution.” The mother failed to raise these
constitutional arguments to the juvenile court, so they are not preserved for our
review. See In re C.K., 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.”).
6
As of the March 2022 termination trial, the father had not used
methamphetamine for almost five months—since his October 28, 2021 arrest. But,
due to his previous convictions for possession with intent to deliver
(methamphetamine) and assault while participating in a felony, he was still on
parole and living at the Fort Des Moines Community Corrections Complex. L.S.
could not live with the father there, and it was not clear when the father would be
allowed to move into his own apartment. At the December 2021 permanency
hearing, the father testified he only anticipated being required to live at Fort Des
Moines for two months. But, at the time of the termination trial nearly four months
later, the father was still required to do so. And the father’s sentences were not
expected to be discharged until February 2024. The father engaged in mental-
health therapy and substance-abuse treatment after he was sent to live at Fort Des
Moines in early December 2021, and he was able to show insight and take some
accountability during his testimony at the termination trial. But, as the juvenile
court recognized, the father had also struggled to comply with the requirements of
his parole, which raised questions both about whether his parole may be revoked
and if the father’s positive progress was the result of internalized changes or
institutional oversight.
We recognize the positive strides made by the father; his intention to
continue working on his recovery while helping others with their own is laudable.
But it is undisputed that the father could not take over caring for L.S. at the time of
the termination hearing, and it is not clear at what point in the future that would be
possible. “[O]ur legislature has established a limited time frame for parents to
demonstrate their ability to be parents.” Id. at 800. In this case, it is six months.
7
See Iowa Code § 232.116(1)(h)(3). L.S. was never in the care of the father; he
was formally removed from the parents’ care before leaving the hospital almost
one year before the termination trial. With these facts, termination of the father’s
parental rights is in L.S.’s best interests.
Finally, the father requests an additional six months to work toward
reunification. See id. § 232.104(2)(b). But as we already stated, it is not clear
when the father will be allowed to obtain his own housing and leave Fort Des
Moines. And even after that takes place, the father will need some time to show
he can remain sober and safely parent L.S. out in the community. L.S. has been
out of the father’s care nearly twice as long as the statutory time frame, so we view
the termination proceedings with urgency. See In re C.B., 611 N.W.2d 489, 495
(Iowa 2000); see also In re Z.P., 948 N.W.2d 518, 523 (Iowa 2020) (“Our statutes
reflect ‘policies that are meant to keep children from languishing in foster care.’”
(citation omitted)). Like the juvenile court, we conclude giving the father additional
time to work toward reunification is not in L.S.’s best interests.3 See C.B., 708
N.W.2d at 92 (recognizing extensions could be appropriate in some circumstances
but cautioning that “[t]he judge considering them should . . . constantly bear in
mind that, if the plan fails, all extended time must be subtracted from an already
shorted life for the child[] in a better home”).
We affirm the termination of the father’s parental rights.
AFFIRMED ON BOTH APPEALS.
3 Like the mother, the father asserts that the court’s denial of his request for
additional time violates the constitutional guarantees of due process and equal
protection. But, also like the mother’s, these arguments of the father’s have not
been preserved for our review; we do not consider them.