In the Interest of K.H., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 22-0411
Filed May 11, 2022
IN THE INTEREST OF K.H.,
Minor Child,
S.M., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Louisa County, Emily S. Dean,
District Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Kimberly A. Auge of The Auge Law Firm, Fort Madison, for appellant
mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Reyna Wilkens of Wilkens Law Office, Fort Madison, attorney and guardian
ad litem for minor child.
Considered by Vaitheswaran, P.J., and Tabor and Badding, JJ.
2
TABOR, Judge.
The juvenile court terminated Stephanie’s parental rights to her thirteen-
year-old daughter K.H. Stephanie now challenges the court’s denials of her
motions to continue. She claims the State did not prove K.H. could not be returned
to her care. She also argues that termination was not the “least restrictive
disposition” and the Iowa Department of Human Services (DHS) did not make
reasonable efforts toward reunification. Like the juvenile court, we find Stephanie’s
methamphetamine addiction imperiled K.H.’s well-being. So we affirm the
termination order.1
I. Facts and Prior Proceedings
The DHS became involved with this family in April 2020 based on concerns
that Stephanie and her husband Travis were using methamphetamine and
marijuana while caring for K.H. and her younger half-sister E.M. Stephanie tested
positive for methamphetamine use.2 At first, Stephanie and Travis agreed to
participate in family preservation services. But over time their commitment to
services waned and changed to active resistance. The case progress reports
feature a litany of text messages and retellings of the parents berating service
providers and expressing grievances with the situation and the DHS requirements.
1 Termination reviews are de novo. In re M.D., 921 N.W.2d 229, 232 (Iowa 2018).
We give weight to the juvenile court’s fact findings, but they do not bind us. Id.We review the denied motions to continue for an abuse of discretion. Id. “A court
abuses its discretion when ‘the decision is grounded on reasons that are clearly
untenable or unreasonable . . . .’” Id. (citation omitted). Above all, our fundamental
concern is the best interests of the child. Id.2 This investigation led to three founded child abuse assessments for denial of
critical care. In that incident, Stephanie and Travis were smoking marijuana
around the children, and K.H. found a bag of marijuana easily accessible to four-
year-old E.M.
3
According to the case plan, Stephanie and Travis were to stay sober and
meet the children’s basic needs. But in May 2020, when Stephanie’s sweat patch
test came back positive for methamphetamine, E.M. was removed from her care.
K.H. stayed with her mother until August when the guardian ad litem successfully
petitioned to have her removed as well. Since then, K.H. has lived with her father,
her stepmother, their two sons, and E.M.
After K.H. and E.M. were adjudicated as children in need of assistance
(CINA), Stephanie made little effort to address her addiction. She tested positive
for drugs throughout 2020 and 2021. She also missed many testing dates. Still,
she denied her drug use was a problem. And despite being asked to undergo
substance-abuse assessment since April 2020, she waited until April 2021 to
complete an evaluation, which recommended outpatient treatment. She then
attended one treatment session and did not return.
On the mental-health front, Stephanie has shown a similar lack of follow
through. She completed evaluations in October 2020 and April 2021, but she did
not follow the recommendation for continued therapy.
In July 2021, the juvenile court terminated Stephanie’s parental rights to
E.M.3 Following that development, Stephanie rejected services. When asked to
drug test in September, she told the DHS worker, “I’m pretty sure I am no longer
associated with the Department. I will do all of my own drug testing mental health
3 The court granted the State’s motion to dismiss the petition as to Travis. We
affirmed the termination of Stephanie’s rights. In re E.M., No. 21-1102, 2021 WL
5458035, at *4 (Iowa Ct. App. Nov. 23, 2021).
4
the services that you supposedly provide on my own without your assistance or
your input thank you very much I’m terminated remember.”
Meanwhile, K.H. was working through the trauma she experienced in
Stephanie and Travis’s home. She saw a counselor on and off. Stephanie tried
to set up family therapy, but K.H. told her counselor that she did not want contact
with her mother. When K.H. returned to counseling in late 2020, K.H. still resisted
seeing her mother, expressing concern that she might be placed back in
Stephanie’s care. Her counselor reported “the idea of having contact [with
Stephanie] was distressing and anxiety-producing” for K.H. The counselor also
recommended Stephanie attend individual counseling to address her own issues
before reconnecting with K.H.4 The counselor also observed K.H. to be happy in
the care of her father and stepmother. She noted, “They both have shown patience
and understanding with [K.H.],” and they “offer a more stable home for K.H.”
After twenty-two months of CINA proceedings, the court terminated
Stephanie’s parental rights to K.H. under Iowa Code section 232.116(1),
paragraphs (b), (d), (f), (g), (i), and (l) (2021). She now appeals.
II. Analysis
A. Motions to Continue and Request to Keep the Record Open
Stephanie contends the juvenile court erred in denying her motions to
continue. “A motion for continuance shall not be granted except for good cause.”
Iowa R. Juv. P. 8.5; see also In re R.B., 832 N.W.2d 375, 378 (Iowa Ct. App. 2013).
We will reverse only for an abuse of discretion. M.D., 921 N.W.2d at 232.
4Because Stephanie did not do so, she has not had visitation with K.H. since
December 2020.
5
Stephanie focuses on her motions to continue and to keep the record open in the
joint termination trial for E.M. and permanency hearing for K.H. held in May 2021.
We addressed those issues in her appeal of E.M.’s termination. See E.M., 2021
WL 5458035, at *2. We need not return to them here.5
In K.H.’s case, the termination trial was set for February 7, 2022, at 1 p.m.
On February 2, Stephanie moved to continue for lack of service, but the next day
the State filed the affidavit of service, showing Stephanie accepted service on
January 29. The juvenile court denied the motion, and we find no abuse of
discretion in that decision.
On February 4, Stephanie filed a new motion to continue, alleging she had
a fever, rash, sore throat, cough, and earache. On the morning of the hearing, the
court denied the motion “pending a doctor’s excuse” but allowed the mother to
appear by phone. Later that morning, Stephanie renewed her motion to continue,
stating she was still ill but not providing a doctor’s note. She also requested that
witnesses be allowed to appear by telephone, asserting that her sister, mother,
and stepfather could not be “personally present.”
The court denied the motion to continue. It also denied Stephanie’s request
for telephonic appearance of witnesses, explaining “This is an in-person
5 We noted Stephanie had delayed the proceedings several times. E.M., 2021 WL
5458035, at *2. She was not present for the termination proceeding in E.M.’s case.
Id. For good cause, she represented to the juvenile court that she had been
involuntarily committed, but the court said it “verified with the sheriff’s office the
mother had not been picked up.” Id. Accordingly, the court ruled “it would not
‘allow for the reopening of the mother’s case-in-chief in order to allow for her
testimony should she choose to attend a different day. I don’t allow people to come
and go from their court proceedings as they choose.’” Id. We found no abuse of
discretion. Id. The same judge was similarly frustrated with Stephanie’s conduct
at the termination hearing.
6
proceeding.” Despite later finding “her allegations of illness not credible, based
upon her history of deceit throughout this case,” the court allowed Stephanie to
appear by telephone.
But Stephanie’s telephone participation was problematic. The audio quality
was poor. Portions of her testimony were inaudible. After several pauses to fix
the audio and requests for Stephanie to slow down so the court reporter could
preserve the record, the court stopped her testimony:
[I]t’s not possible for the reporter to get this down, and that’s not
going to make for any kind of a record should this case need to be
reviewed by an alternate court. In fact, I’m not getting most, three
quarters of it down. The court’s order today was clear that although
this case has been set for quite some time, I had indicated that had
I been presented with a doctor’s verification I would consider a
motion to continue. I did not receive that. So I had allowed for
[Stephanie] to choose to participate telephonically, and she has.
There is nothing stopping her from coming today. Everyone’s
wearing masks these days anyway to prevent the spread of viruses.
So, I’m going to cut off the testimony at this time. It simply is not
working, and [Stephanie] has been unable to get to a better form of
device to make her testimony clear.
I will allow for Ms. Auge to make a professional statement on
[Stephanie’s] behalf. But beyond that, I simply—I’m not going to
allow for any further telephonic testimony with this quality.
The court allowed Stephanie’s attorney to offer other evidence. In response, the
attorney offered documentation of Stephanie’s living situation to establish that she
had a permanent home. She then renewed her motion to continue so that
Stephanie could give testimony, which the court denied.
On appeal, Stephanie argues she did not have time to obtain a doctor’s
note. And because of her absence, she contends the record is missing “critically
important, relevant, and material” information. But she does not specify what
information she would have offered if present.
7
This record does not show the juvenile court abused its discretion.6 It was
willing to find good cause to continue the trial for a genuine illness, which Stephanie
could not verify. Without that proof, the court disbelieved her reason. We defer to
that credibility finding. See In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). And
although the court allowed Stephanie to appear by telephone, her connection was
beset by audio difficulties for reasons that are unclear.7 Still, she listened to most
of the hearing. The court handled the situation reasonably.
B. Grounds for Termination
Next Stephanie contends that the State did not offer “substantial evidence
to find [K.H.] could not be returned to [her], that termination was the least restrictive
disposition under the circumstances, and that the Department made reasonable
efforts at reunification.” Her argument in support of these issues is unfocused and
confusing. Still, we will try our best to address her claims.
We start with her least-restrictive-disposition argument. She cites Iowa
Code section 232.99(4), which states a preference for keeping children with their
parents. But that statute applies to CINA proceedings. See Iowa Code
§ 232.102(4)(a) (“Whenever possible the court should permit the child to remain at
home with the child’s parent, guardian, or custodian.”). By contrast, in termination
cases, the child’s interests trump family reunification. See In re L.T., 924 N.W.2d
6 Stephanie mentions her “basic and fundamental rights to present and defend her
case,” but the argument is so underdeveloped, we consider it waived. See Iowa
R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be
deemed waiver of that issue.”).
7 The court warned Stephanie to stop audio recording the hearing for posting on
her internet blog and threatened to hold her in contempt if she continued.
8
521, 529 (Iowa 2019). Because the least-restrictive standard does not relate to
the issues in this appeal, it is not relevant to our review today.
We next turn to Stephanie’s substantial-evidence argument. We read her
reference to “could not be returned” as attacking the fourth prong of the termination
ground set out in Iowa Code section 232.116(1), paragraph (f).8 And we consider
her reference to “reasonable efforts” as we evaluate the State’s “ultimate proof”
that K.H. could not be safely returned under paragraphs (f) and (g). See L.T., 924
N.W.2d at 527. The State contests error preservation on these arguments.
Even if Stephanie preserved error on these two claims, she leaves several
grounds uncontested. Because she fails to challenge termination on those other
grounds, we may affirm without further analysis. See In re P.L., 778 N.W.2d 33,
40 (Iowa 2010) (finding court did “not have to discuss this step” where parent did
not dispute existence some statutory grounds). Likewise, we need not address
the reasonableness of the DHS efforts toward reunification.
C. Other Issues
It may be a generous reading of Stephanie’s petition on appeal, but we
venture to address her random mentions of K.H.’s best interests. In assessing
best interests we consider the child’s safety, the best placement for furthering her
long-term nurturing and growth, as well as her physical, mental, and emotional
condition and needs. See Iowa Code § 232.116(2); see P.L., 778 N.W.2d at 37.
Security and the need for a permanent home mark the “defining elements” in a
child’s best interests. In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J.,
8 As authority for this contention, Stephanie cites Iowa Code section 232.102,
referenced in Iowa Code section 232.116(1)(f)..
9
concurring specially). Like the juvenile court, we find the best long-term placement
for K.H. is with her father and stepmother, who have provided a stable and
nurturing environment. And as the juvenile court points out, it is K.H.’s reasonable
preference to remain in that home. See Iowa Code § 232.116(2)(b)(2).
To counter, Stephanie points to a mental-health crisis that K.H. suffered a
few months before the termination hearing, trying to cast blame on the father’s
care. But as the State notes, at the hospital for that crisis, K.H. expressed severe
anxiety about the lack of permanency in her life. Termination is the best means to
achieve that desired permanency.
Finally, in a single sentence, Stephanie contends the juvenile court should
have ordered “an additional six month extension.” But that fleeting mention does
not adequately raise the issue. Even if it did, continuing permanency is not
warranted. Under section 232.117(5), the juvenile court may delay permanency
for up to six months under section 232.104(2)(b) as an alternative to terminating
parental rights. See In re N.J., No. 19-1999, 2020 WL 2988237, at *3 (Iowa Ct.
App. June 3, 2020). A reprieve is appropriate if the juvenile court can point to
“specific factors, conditions, or expected behavioral changes” that justify believing
the need for removal from parental care would no longer exist after that time. Iowa
Code § 232.104(2)(b). But no such factors exist here. Stephanie has made no
progress in her parenting goals since this case opened twenty-two months prior to
the termination hearing. She has consistently tested positive for illegal drugs or
refused testing. She is hostile toward DHS services and service providers. We
have no reason to believe the need for removal will not exist in six months.
10
Finding no grounds for reversal, we affirm the termination of parental rights.9
AFFIRMED.
9 If Stephanie intended to raise other issues, including issues from the permanency
order, we decline to reach them. See In re T.R., 705 N.W.2d 6, 11 (Iowa 2005)
(holding permanency order is not final for appeal purposes and its provisions “will
inure or be subsumed in the termination order”). Stephanie’s petition on appeal
lists findings with which she disagrees but offers little argument, thereby
contravening the appellate rules. See Iowa R. App. P. 6.1401-Form 5 (requiring
parent to “state what findings of fact or conclusions of law the district court made
with which you disagree and why, generally referencing a particular part of the
record, witnesses’ testimony, or exhibits that support” that position). We cannot
take an advocacy role on her behalf. See In re C.B., 611 N.W.2d 489, 492 (Iowa
2000) (holding broad argument was insufficient to identify errors).