In the Interest of S.A., G.H., and F.B., Minor Children

IN THE COURT OF APPEALS OF IOWA
No. 20-0909
Filed October 7, 2020
IN THE INTEREST OF S.A., G.H., and F.B.,
Minor Children,
A.H., Mother,
Appellant.
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Appeal from the Iowa District Court for Mahaska County, Rose Anne
Mefford, District Associate Judge.
The mother appeals the termination of her parental rights to three of her
children. AFFIRMED.
Eric J. Palmer of Palmer Law Office, Oskaloosa, for appellant mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Denise McKelvie Gonyea of McKelvie Law Office, Grinnell, attorney and
guardian ad litem for minor children.
Considered by Doyle, P.J., Greer, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
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GREER, Judge.
The mother appeals the termination of her parental rights to three of her
children, G.H., born in 2010; S.A., born in 2013; and F.B., born in 2018. 1 The
juvenile court terminated the mother’s parental rights pursuant to Iowa Code
section 232.116(1)(f) (G.H. and S.A.), (h) (F.B.), and (l) (all three children) (2020).
She maintains the court was wrong to find the children could not be returned to her
care at the time of the termination hearing or, in the alternative, maintains that an
additional period of time would correct the situation and allow for reunification. Our
review of termination proceedings is de novo. In re M.M., 483 N.W.2d 812, 814
(Iowa 1992).
To begin, we note the mother’s petition on appeal incorporates a number of
“facts” that are not in the record before us and, to the extent they happened at all,
would have taken place after the final day of the termination hearing on March 16,
2020.2 “We limit our review to the record made in the termination proceeding
involving” the children at interest. Id. at 815; accord Iowa R. App. P. 6.801 (“Only
the original documents and exhibits filed in the district court case from which the
appeal is taken, the transcript of proceedings, if any, and a certified copy of the
related docket and court calendar entries prepared by the clerk of the district court
1 These children do not share biological fathers. The State did not petition to
terminate the rights of S.A.’s father; S.A. was in his father’s custody at the
conclusion of these termination proceedings. G.H.’s father is deceased. And the
rights of F.B.’s father were terminated in these same proceedings; he does not
appeal.
2 The mother, who was due to give birth to her fourth child by Cesarean section
the day after the close of the termination hearing, makes claims about the birth of
the child and the negative drug tests that occurred at the child’s birth, that the child
has remained in the mother’s custody, and housing the mother obtained after the
close of the record.
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constitute the record on appeal.”). And we remind counsel that it is a violation of
the rules of appellate procedure to refer to matters outside of the record. See In
re Marriage of Keith, 513 N.W.2d 769, 771 (Iowa Ct. App. 1994) (“[C]ounsel has
referred to matters apparently not a part of the record of this appeal. We admonish
counsel to refrain from such violations of the rules of appellate procedure. We are
limited to the record before us and any matters outside the record on appeal are
disregarded.”).
Next, we question whether the mother preserved an argument that the
children could have been returned to her care at the time of the termination
hearing. See Iowa Code § 232.116(1)(f)(4), (h)(4). At the hearing, the mother
focused her testimony on wanting more time so she could reunite with her children
in the future. In his closing argument, her attorney outlined the progress the mother
had made and then said, “I think she has made the progress that certainly warrants
giving her additional time to retain or get her children back.” The mother never
expressly claimed the children could be returned to her at the time and, in our
reading between the lines, it does not seem she implicitly contested the issue
either. “[T]he general rule that appellate arguments must first be raised in the trial
court applies to [child-in-need-of-assistance] and termination of parental rights
cases.” In re A.B., 815 N.W.2d 764, 773 (Iowa 2012).
Insofar as the mother preserved this issue for appeal, we conclude the
children could not be returned to the mother’s care at the time of the termination
hearing. The mother claimed she was living with the children’s maternal uncle.
This claim was not credible, as the uncle told at least one person the mother had
moved out and the children’s maternal grandmother had recently visited the
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uncle’s home and noted none of the mother’s stuff was present. The lack of
concrete information about the mother’s residence remained a concern. But even
if the mother was staying with the maternal uncle, she acknowledged his two-
bedroom home was not large enough for the uncle, his fiancé, and child as well as
the mother, her three children at issue, and the one she was then pregnant with.
The mother had established short-term sobriety at the time of the termination
hearing—about six months. But she also maintained sobriety during her
pregnancy with F.B. and then returned to using methamphetamine after the child’s
birth. The mother’s participation in substance abuse-treatment, even during this
period of sobriety, was relatively minimal; she missed all but three of about forty
group sessions she was recommended to attend. And her substance-abuse
counselor, who seemed enthusiastic about the mother and testified she was “doing
well” and had “absolutely” made progress acknowledged that the mother is in the
“contemplation” stage and has only “made minimal changes.” The counselor
testified the mother has “a ways to go.” The children could not be safely returned
to the mother’s care at the time of the termination hearing. See M.M., 483 N.W.2d
at 814 (“[A] child cannot be returned to the parent under Iowa Code section
232.102 if by doing so the child will be exposed to any harm amounting to a new
child in need of assistance adjudication.”).
The mother maintains that an additional period of time would correct the
situation and allow for reunification. We assume she is requesting an extension
pursuant to section 232.104(2)(b), which allows the court to delay permanency and
continue the placement of the children for six months if it concludes “that the need
for removal of the child from the child's home will no longer exist at the end of the
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additional six-month period.” The mother made some progress in the six months
leading up to the termination hearing. She began attending mental-health and
substance-abuse counseling and she established a period of sobriety.
Still, between August 2019—when the mother appeared to commit to
achieving progress—and March 2020—the final date of the termination hearing—
the mother had just three therapy sessions with her mental-health counselor. She
attended almost all of her individual sessions with her substance-abuse counselor
(eight, including the intake session) but only three of about forty group sessions.
And while her substance-abuse counselor seemed encouraged by the mother’s
consistency in making her individual appointments, the counselor also recognized
the mother was still in the contemplation stage of recovery and had a long way to
go. The mother testified that she had a new mindset about the father of the child
she was pregnant with, but just a few months before she had asked for the no-
contact order between them to be dropped. And her family members testified they
were still receiving reports from friends and family in the community that the mother
was spending time with this man.
At the time of the termination hearing the mother seemed to be making
some positive strides; we commend her for that and hope she is able to maintain
the progress. But her children had already been removed from her care for
fourteen months, and we cannot say another six months would allow them to safely
return to her care. We affirm the termination of the mother’s parental rights to
these three children.
AFFIRMED.