In the Interest of A.A., Minor Child

• Court: Court of Appeals of Iowa
• Decided: June 5, 2024
• Docket: 24-0521
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0521 Filed June 5, 2024

IN THE INTEREST OF A.A., Minor Child,

P.W., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Joan M. Black,

Judge.

A mother appeals the termination of her parental rights to her son.

AFFIRMED.

Kristin L. Denniger, Mount Vernon, for appellant mother.

Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney

General, for appellee State.

Sue Kirk of Arnott & Kirk Law Firm, Iowa City, attorney and guardian ad

litem for minor child.

Considered by Tabor, P.J., and Greer and Schumacher, JJ. 2

TABOR, Presiding Judge.

A young mother to a “medically fragile” child appeals the termination of her

parental rights. She contends the State failed to prove the statutory ground for

termination, it was not in her son’s best interests to terminate her rights, termination

will be detrimental due to their bond, and the court should have given her more

time to work toward reunification. But to quote the guardian ad litem, “[t]his is

serious stuff,” and A.A. needs a parent who will meet his intensive medical needs.

Without question, the mother loves her child. But the record establishes that she

has not shown the capacity to ensure treatment for his serious health issues. So

we affirm the termination order.

I. Facts and Prior Proceedings

Seventeen-year-old P.W. gave birth to twin boys in July 2022. Their father

was also a teenager.1 The babies were born at only twenty-three weeks gestation,

and one twin died after just three days. The surviving twin, A.A., remained in the

hospital under intensive care until he could be discharged home in December.

Meanwhile, P.W. struggled to balance caring for A.A. and attending high

school. In the month after his discharge, the parents missed or cancelled sixteen

medical appointments. By late January 2023, A.A. had not gained enough weight,

and was admitted to the hospital to address his failure to thrive. The court ordered

a temporary removal from the parents. The Iowa Department of Health and

Human Services placed A.A. in a foster home, where he has resided since.

1 The court also terminated the father’s parental rights, but he does not participate

in this appeal. 3

From the start, the parents missed crucial medical appointments. Hospital

staff were concerned that the parents visited A.A. only a handful of times and

missed the training on how to handle his feeding tube and oxygen supply. A.A.

has a long list of diagnoses, the most serious of which are cerebral palsy,

bronchopulmonary dysplasia, gastroesophageal disease, and vision problems. He

also has substantial physical and cognitive developmental delays.

Throughout the case, transportation and scheduling have been barriers to

the parents’ attendance at A.A.’s medical appointments. They often missed

appointments, arrived late, or left early. P.W. felt that the foster parents scheduled

appointments at inconvenient times for her. But the department stressed the

importance of timely attendance. Otherwise appointments are cancelled, and A.A.

has intense medical needs that the parents must manage on their own if he returns

to their custody.

Most recently, the parents missed a pediatric gastroenterology appointment

without explanation. The department has stressed the importance of attending

appointments many times to the parents, and the court has also ordered the

parents to attend every appointment. The parents voiced understanding. But the

caseworker testified that their actions show they do not prioritize the appointments.

Shortly before the termination hearing, the parents’ attendance improved as they

made efforts for at least one of them to be at every appointment. Yet they still

sometimes showed up late or had to leave early.

In June 2023, the parents started having two semi-supervised visits a week

with A.A. but never advanced to unsupervised interactions. The department 4

declined to offer unsupervised visitation until the parents were more consistent in

attending A.A.’s appointments and communicating with medical providers.

In July 2023, the caseworker smelled marijuana during a home visit. There

were no other signs that the parents were using. But the father had a prior drug

conviction. So the court ordered the parents to provide negative drug screens

before advancing to unsupervised visitation. The parents skipped all but one of

the seven requested tests. P.W. tested once and was positive for marijuana.

Despite these concerns, all observers agreed visits with A.A. went well,

even if the parents were not perfect in attendance. The parents came prepared

with diapers and toys. And they had a clear bond with their son, who was happy

and comfortable in their care. The caseworker acknowledged that the parents

loved A.A. but did not believe they could be safe caregivers on their own.

After the July hearing, the court noted the parents’ improved attendance at

medical appointments and delayed permanency for three months. But come

November, the department, the court-appointed special advocate, and the

guardian ad litem (GAL) agreed that the parents made little forward progress. The

court directed the State to file a termination petition.

At the time of the February 2024 termination hearing, P.W. had a stable

residence at United Action for Youth, where rent was only $50 per month. She

was employed full-time at a grocery store. And she had a working car, but no

driver’s license. She testified that if A.A. were returned to her care she would put

him in daycare so that she could continue to work.

Also at the termination hearing, the caseworker explained that A.A. sees

several specialists and has been admitted to the emergency room various times 5

for different illnesses. His continued care requires more-than-weekly medical and

therapy appointments, as well as at-home treatment. Those at-home needs

include overseeing his prescribed medications, monitoring oxygen intake,

performing physical therapy, and responding to respiratory emergencies when

they arise. Indeed, the foster mother reported A.A. has regular episodes of

respiratory distress overnight, sometimes requiring trips to the emergency room.

He also had eye surgery and will need follow-up treatment.

Given A.A.’s medical vulnerability, the caseworker was “not confident that

the parents [were] reliable to care for all his needs.” The worker also lacked

confidence that the parents could resume custody within six months. Likewise, the

GAL was adamant that the parents did not understand A.A.’s long-term medical

needs and couldn’t be consistent caregivers or effective advocates for him.

Crediting those observations from the caseworker and GAL, the juvenile court

found grounds to terminate the parents’ rights under Iowa Code

section 232.116(1)(h) (2023). P.W. appeals.2

II. Discussion

A. Statutory grounds

We analyze this termination case in three steps. In re D.W., 791 N.W.2d

703, 706–07 (Iowa 2010). First, we decide whether the State proved a ground for

termination under Iowa Code section 232.116(1). Id. Second, we apply the best-

2 We review termination proceedings de novo. In re L.B., 970 N.W.2d 311, 313 (Iowa 2022). We respect the juvenile court’s factual findings, but they do not dictate our result. Id. The State must prove the grounds for termination by clear and convincing evidence. Id. Our primary concern is the best interests of the child. In re J.S., 846 N.W.2d 36, 40 (Iowa 2014). 6

interests framework in section 232.116(2). Id. Third, if that framework supports

the State’s petition, we check whether any factors in section 232.116(3) should

preclude termination. Id. We need not address a step that the parent does not

challenge on appeal. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).

The court terminated P.W.’s parental rights under Iowa Code

section 232.116(1)(h).3 She now contends the State failed to show that A.A. could

not be returned to her custody at the time of the hearing.4 See In re M.W., 876

N.W.2d 212, 219 (Iowa 2016) (requiring proof of statutory grounds by clear and

convincing evidence); see also In re A.S., 906 N.W.2d 467, 474 (Iowa 2018)

3 To find termination appropriate under paragraph (h), the court must find all the

following supported by clear and convincing evidence: (1) The child is three years of age or younger. (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (3) The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days. (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. Iowa Code § 232.116(1)(h). 4 Our case law offers two formulations for what it means when a child “cannot be

returned” to parental custody as provided in section 232.102 (discussing transfer of a child’s legal custody if staying in the home would be “contrary to the welfare of the child”). Many cases cite In re M.M., 483 N.W.2d 812, 815 (Iowa 1992), which quotes section 232.102(4)(a)(2)—then numbered section 232.102(5)(b)—for the proposition that custody should be transferred only if the court finds “the child cannot be protected from some harm which would justify adjudication of the child as a child in need of assistance and an adequate placement is available.” See, e.g., In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App. 2016). But our supreme court often describes that element as the inability to “safely return” children to their parents’ care. See, e.g., In re T.W., No. 20-0145, 2020 WL 1881115, at *2–3 (Iowa Ct. App. Apr. 15, 2020) (collecting cases). Under either formulation, the State met its burden of proof. 7

(applying “at the present time” in subparagraph (h)(4) to the time of the termination

hearing).

P.W. points out that she has a stable home and employment and argues

that “she now has a handle on A.A.’s medical needs and appointments.” But she

adds that “[s]he understands that the department and court may want additional

monitoring . . . to ensure she continues to comply with appointments and meets

A.A.’s needs.”

As P.W. tacitly acknowledges, she has not done enough to instill confidence

that she can meet A.A.’s health challenges without ongoing supervision. Given

A.A.’s young age, delayed development, and serious medical needs, we find the

State proved that P.W. could not assume his custody at the time of the termination

hearing without a risk of harm. P.W. has not consistently attended her son’s

medical sessions, let alone scheduled and brought him to the appointments. She

does not have a driver’s license and depends on public transportation and other

supports to get places. Since the January removal, she has not had A.A. in her

care for more than a few hours semi-supervised. And she did not provide negative

drug tests to advance to less supervised visits. On this record, we agree with the

juvenile court that A.A. remains at risk of harm if returned to her custody. Clear

and convincing evidence supports termination under paragraph (h).

B. Delayed permanency

In the alternative, P.W. asks for more time to reunify. A delay is appropriate

only if we can conclude “the need for removal . . . will no longer exist at the end of

the additional six-month period.” Iowa Code § 232.104(2)(b). Beyond arguing that

she “has a handle” on A.A.’s needs, P.W. does not identify any “specific factors, 8

conditions, or expected behavioral changes” suggesting the need for removal from

her custody would end soon. Id. Because the juvenile court already granted an

extension and little changed, another delay in permanency is unwarranted.

C. Best interests

For her next contention, P.W. challenges what is in A.A.’s best interests

under section 232.116(2) and (3)—steps two and three of the termination analysis.

But substantively she only addresses step three, citing section 232.116(3)(c).

Even though P.W. does not tailor her argument to the framework in section

232.116(2), we find that termination is in A.A.’s best interests.

In assessing best interests, we consider the child’s safety, the best

placement for furthering his long-term nurturing and growth, and to his physical,

mental, and emotional condition and needs. I. § 232.116(2); In re A.B., 956

N.W.2d 162, 169 (Iowa 2021). A.A. needs consistent medical care and monitoring

and regular transportation to appointments and therapists. His caregiver must

have the capacity for reacting in the moment to an emergent condition and for long-

term planning and advocacy as he navigates future challenges. As the GAL

explained, P.W. has not shown that level of caregiving. So it is in her son’s best

interests to terminate P.W.’s rights and find a permanent adoptive home where his

needs can be met.

D. Statutory exception

Finally, P.W. asks for preservation of her parental rights based on her strong

bond with A.A. See Iowa Code § 232.116(3)(c) (allowing court to avoid termination

of parental rights where “termination would be detrimental to the child . . . due to

the closeness of the parent-child relationship”). That exception is permissive, not 9

mandatory. In re A.M., 843 N.W.2d 100, 113 (Iowa 2014). And P.W. has the

burden to prove that it applies here. See A.S., 906 N.W.2d at 476.

P.W. asserts that her visits with A.A. go well and he looks to her for comfort

and affection. Indeed, the record shows a warm connection between P.W. and

A.A. The GAL described A.A. as “lighting up” when he interacts with his mother.

But P.W. has not put forth evidence that severing her parental rights will harm A.A.

“[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 [A.A.’s] developing needs.” D.W., 791 N.W.2d at 709. Here, P.W.’s

inability to meet A.A.’s medical challenges overshadows the closeness of the

parent-child relationship.