In the Interest of C.H., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 23-0123
Filed April 26, 2023
IN THE INTEREST OF C.H.,
Minor Child,
C.H., Father,
Appellant,
A.T., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Shelby County, Charles D. Fagan,
District Associate Judge.
A mother and father separately appeal the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
Matthew J. Hudson, Harlan, for appellant father.
Sara E. Benson of Meldrum & Benson Law, P.C., Council Bluffs, for
appellant mother.
Brenna Bird, Attorney General, and William E. Sales, III, Assistant Attorney
General, for appellee State.
William T. Early, Harlan, attorney and guardian ad litem for minor child.
Considered by Tabor, P.J., and Schumacher and Ahlers, JJ.
2
AHLERS, Judge.
After almost two years of involvement, the juvenile court terminated the
parental rights of the mother and father of two-year-old C.H. The parents
separately appeal raising identical issues.1
I. Delayed Appeal
Before we address the merits of the parents’ claims, we must address
whether we may consider the father’s appeal after he filed his petition on appeal
two days late. See Iowa R. App. P. 6.201(3) (“If the petition on appeal is not filed
with the clerk of the supreme court within 15 days after the filing of a notice of
appeal or within 15 days after the filing of an order granting an interlocutory appeal,
the supreme court shall dismiss the appeal, and the clerk shall immediately issue
procedendo.”). Following the father’s late filing, the supreme court ordered the
father to “file a statement . . . explaining why the appeal should not be dismissed
as the appeal was not timely filed.” Counsel for the father filed a responsive
statement explaining the late petition on appeal resulted from a combination of
counsel’s own familial obligations and heavy caseload, the absence of a legal
assistant who was on maternity leave, and a “calendaring miscalculation.”
Counsel also stated he
was unable to contact the father and even went to the effort of driving
to another town to [the father’s] home to get his signature on the
notice of [a]ppeal as emails were unanswered by the father regarding
the potential basis for the [a]ppeal and his phone was unanswered
1 It appears the father’s petition on appeal uses almost identical language as the
mother’s petition on appeal and sometimes (presumably) inadvertently references
the mother instead of the father. “To the extent these references were intended to
raise arguments on the mother’s behalf, we reject them, as the father has no
standing to raise issues on the mother’s behalf.” In re K.B., No. 22-1343, 2022 WL
17481399, at *1 n.1 (Iowa Ct. App. Dec. 7, 2022).
3
and voicemail messages were not able to be left to the father to
assist in the basis for appeal.
We may grant a delayed appeal when (1) “the parent clearly intended to
appeal,” (2) “the ‘failure to timely perfect the appeal was outside of the parent’s
control,’” and (3) “the delay was ‘no more than negligible.’” In re W.T., 967 N.W.2d
315, 322 (Iowa 2021) (citation omitted). Based on the facts presented, the two-
day delay here is “no more than negligible,” so that requirement is satisfied.2 See
id. Instead, we have concerns with respect to the first and second requirements
given counsel’s statement that he had to drive to the father’s home to secure his
signature on the notice of appeal and then could not reach the father to discuss
potential bases for the appeal. This leads us to question whether the father clearly
intended to appeal and whether the father’s lack of communication with counsel
was a contributing factor in the “failure to timely perfect the appeal” through the
filing of the petition on appeal. See id. However, the father may have believed no
more was required of him after he signed the notice of appeal. And counsel
conceded several personal and professional reasons, not related to any action or
2 We find the two-day negligible, in part, because it is akin to a one-day delay due
to the timing of events. The petition was due on February 9, which was a Thursday.
The petition was filed on Saturday, February 11. The father could have filed his
petition after the clerk’s office closed on Friday, in which case it would have only
been one day late. See Iowa Ct. R. 16.309(1)(c) (“A document is timely filed if it
is filed before midnight on the date the filing is due.”). Given that the clerk’s office
was not open to process the filing any time from the close of the clerk’s office on
Friday (February 10) until reopening for business on Monday (February 13), it
makes no practical difference whether it was filed anytime between the close of
the clerk’s office on Friday until it reopened on Monday. See In re B.W., No. 21-
1810, 2022 WL 468945, at *6 (Iowa Ct. App. Feb. 16, 2022) (Ahlers, J., specially
concurring) (factoring in the lack of practical difference in date of filing during a
period when the clerk’s office is closed in determining whether delay is negligible).
Filing at any time within that window would have the same practical effect as filing
at the earliest time in that window—in this case, one day late. See id.4
inaction by the father, caused him to file the petition on appeal late. Given these
facts, we conclude the father intended to appeal and the failure to timely perfect
was outside the father’s control. Accordingly, we grant the delayed appeal and
proceed to the merits.
II. Merits
We conduct de novo review of orders terminating parental rights. In re Z.K.,
973 N.W.2d 27, 32 (Iowa 2022). Our review follows a three-step process that
involves determining if a statutory ground for termination has been established,
whether termination is in the children’s best interests, and whether any permissive
exceptions should be applied to preclude termination. In re A.B., 957 N.W.2d 280,
294 (Iowa 2021). If a parent does not challenge any of the three steps, we need
not address it on appeal. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).
Both parents challenge the statutory grounds for termination.3 Here, the
juvenile court terminated their parental rights pursuant to Iowa Code
section 232.116(1)(e) and (h) (2022). “When the juvenile court terminates parental
rights on more than one statutory ground, we may affirm the juvenile court’s order
on any ground we find supported by the record.” In re A.B., 815 N.W.2d 764, 774
3 Both parents also claim the State did not make reasonable efforts toward
reunification. The reasonable-efforts requirement is not a strict substantive
requirement, but it is part of the State’s ultimate proof that the child cannot be
returned to the parent. In re L.T., 924 N.W.2d 521, 527 (Iowa 2019). So, a
reasonable-efforts challenge is generally a component of a statutory-grounds
challenge. However, we do not address either parent’s reasonable-efforts
challenge because it appears neither raised a reasonable-efforts challenge prior
to the termination hearing, In re C.H., 652 N.W.2d 144, 148 (Iowa 2002), and
neither identifies services that should have been provided and would have led to
reunification, In re C.E., No. 22-1179, 2022 WL 4362094, at *1 (Iowa Ct. App.
Sept. 21, 2022).
5
(Iowa 2012). We elect to focus on section 232.116(1)(h) with respect to both
parents. Termination under section 232.116(1)(h) requires proof that (1) the child
is three years old or younger; (2) the child has been adjudicated as a child in need
of assistance; (3) the child has been removed from the parent’s custody for at least
six of the previous twelve months; and (4) the child cannot be returned to the
parent’s custody at the time of the termination hearing.
Neither parent challenges the first three elements. Instead, both attack the
fourth element by contending that the child could be returned to their respective
care “at the time of the termination hearing or in the near future.”4 We reject this
challenge.
As a preliminary observation, we note that both parents assert only that the
child could be returned to their care, but section 232.116(1)(h)(4) requires proof
that the child cannot be returned to a parent’s custody. So, for example, even if
the child could have been placed in the mother’s care at her sober-living facility,
the relevant question is whether the child could be returned to her custody. We do
not make this observation about the blurring of the distinction between care and
custody as a criticism of the parents. Indeed, we have most likely contributed to
the blurring by being imprecise on the distinction at times. See, e.g., In re K.H.,
No. 22-0964, 2022 WL 3421910, at *2–3 (Iowa Ct. App. Aug. 17, 2022) (referring
to the fourth element as imposing a requirement that the child cannot be returned
to the care of a parent); In re C.V., No. 18-0851, 2018 WL 4361061, at *1–2 (Iowa
4 Both parents separately challenge whether the State “met [its] burden of proving
by clear and convincing evidence that at the present time the child cannot be
returned to the custody of the child’s [parent] as provided in section 232.102.” That
is what the State is required to establish in section 232.116(1)(h)(4).
6
Ct. App. Sep. 12, 2018) (same). But, even viewing the parents’ challenges as
claims that the child could be returned to their respective custody, we are not
persuaded by their arguments. When assessing whether the fourth element is
satisfied, we do not consider what might happen in the future; rather we consider
only whether the child could be returned to the parent’s custody at the time of the
termination hearing. See Iowa Code § 232.116(1)(h)(4) (“There is clear and
convincing evidence that the child cannot be returned to the custody of the child’s
parents as provided in section 232.102 at the present time.”); In re A.M., 843
N.W.2d 100, 112 (Iowa 2014) (holding that “at the present time” means at the time
of the termination hearing).
We conclude the child could not be returned to the custody of either parent.
Both parents run into the same reunification barrier—methamphetamine use. See
In re J.P., No. 19-1633, 2020 WL 110425, at *2 (Iowa Ct. App. Jan. 9, 2020) (“A
parent’s methamphetamine use, in itself, creates a dangerous environment for
children.”). These parents had more time to work toward reunification than
statutorily required,5 see Iowa Code § 232.116(1)(h)(3), yet neither has been able
to establish a sustained period of sobriety through drug testing. The mother tested
positive for methamphetamine as recently as September and October of 2022. 6
She entered a sober-living home one week before the termination hearing. While
this is commendable, it is too late to establish that the child could be safely returned
to her custody. See In re C.B., 611 N.W.2d 489, 495 (Iowa 2000). The father
tested positive for methamphetamine in February and June of 2021. He has not
5 The parents had roughly twenty-two months to achieve reunification.
6 The termination hearing was held in December 2022.
7
submitted to testing since that time. We understand the evidence suggests there
were one or more instances when the father tried to test, only to find the testing
facility closed.7 But he missed nineteen testing opportunities and does not account
for every one of those when attempting to explain away his failure to submit to drug
testing. We presume the missed tests would have been positive for illicit
substances. See In re R.A., No. 21-0746, 2021 WL 4891011, at *1 (Iowa Ct. App.
Oct. 20, 2021) (collecting cases noting missed tests are presumed positive for
illegal substances). Given these facts, we cannot say either parent’s relationship
with methamphetamine is over or that the child can be safely returned to either
parent’s custody. In re S.J., No. 20-1430, 2021 WL 811162, at *1 (Iowa Ct. App.
Mar. 3, 2021); In re T.W., No. 20-0145, 2020 WL 1881115, at *1–3 (Iowa Ct. App.
Apr. 15, 2020). A statutory ground for termination was met as to both parents.
Both parents also challenge the juvenile court’s best-interests
determination. When making a best-interests determination, we “give primary
consideration to the child’s safety, to the best placement for furthering the long-
term nurturing and growth of the child, and to the physical, mental, and emotional
condition and needs of the child.” P.L., 778 N.W.2d at 40 (quoting Iowa Code §
232.116(2)). Both parents limit their best-interests argument to this statement, “It
would be detrimental to the well-being of the child should parental rights be
terminated.” We disagree. This two-year-old child has been in the care of his
paternal grandmother for twenty months. The grandmother does well in meeting
7 The father testified the testing center was closed on five occasions when he tried
to test, but the social worker’s report to the court only noted the father only
complained the testing center was closed once in October 2022.
8
the child’s needs, the child is bonded to the grandmother, and the grandmother is
willing to adopt him. Termination is a necessary step to adoption, and adoption
would give the child the safety and stability that all children deserve. Accordingly,
we conclude termination with respect to both parents is in the child’s best interests.
Because neither parent argues a permissive exception should apply, we
end our analysis here and affirm the juvenile court on both appeals. See In re J.D.,
No. 21-0391, 2021 WL 3379037, at *2 (Iowa Ct. App. Aug. 4, 2021).
AFFIRMED ON BOTH APPEALS.