In the Interest of A.C., Minor Child

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0306 Filed April 15, 2020

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

M.B., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Christine Dalton,

District Associate Judge.

A mother appeals the termination of her parental rights. AFFIRMED.

Joshua T. Cobie of Brubaker, Flynn & Darland, P.C., Davenport, for

appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Jack E. Dusthimer, Davenport, attorney and guardian ad litem for minor

child.

Considered by Bower, C.J., and Greer and Ahlers, JJ. 2

AHLERS, Judge.

The mother appeals the termination of her parental rights to her minor child,

A.C. She claims A.C. could have been safely returned to her care at the time of

the termination hearing and it was not in the child’s best interest to terminate rights

because of the bond between the mother and child and the fact the child was in

the custody of a relative.

At the time of the termination hearing, A.C. was seven years old. She was

first adjudicated to be a child in need of assistance (CINA) in a proceeding initiated

in 2016 due to substance abuse, mental health, and domestic violence issues of

both parents. For a significant period of time during the first CINA proceeding, the

child was placed with C.W., the child’s maternal aunt. C.W. realized A.C. was

severely delayed in several areas of development. A.C. also had a lazy eye over

which she had to wear a patch in order to avoid the need for surgery. C.W. was

instrumental in arranging for services for A.C., including regular speech therapy

due to A.C.’s delayed speech development. C.W. also ensured A.C. wore her eye

patch as recommended each day, and C.W. was taught sign language to

communicate until she was able to start talking to some degree.

In December 2017, the first CINA proceeding was closed; A.C. was returned

to the custody of both parents, with physical care placed with the father under a

bridge order entered pursuant to Iowa Code section 232.103A (2017). A.C. only

remained in the father’s care until May 2018, at which time A.C. was removed from

the parents’ custody after the father was arrested in Illinois for driving under the

influence while A.C. and her older half-sibling were in the car. 3

Following removal in May 2018, the juvenile court adjudicated A.C. as a

CINA a second time and placed her with the mother. The mother was living with

C.W. at that time. Shortly after the child was placed in her care, the mother moved

out of C.W.’s home, and the problems quickly resurfaced. The mother took A.C.

out of preschool and was not addressing her vision or speech issues. The mother

was unemployed, and it was unknown how she was paying her bills. She also

allowed unsupervised contact with the father in violation of a safety plan. She

avoided contact with service providers, and it was discovered she continued to

drink alcohol and request drugs via text message to the father. As a result, DHS

removed A.C. from the mother’s care in May 2019 and placed her in C.W.’s

custody. C.W. immediately noticed A.C.’s speech was still very delayed and it

appeared her eye problem remained. It appeared A.C. had not been engaged in

the various services while in the parents’ care.

The termination hearing was held in January 2020, and the mother’s

parental rights were terminated under Iowa Code section 232.116(1)(d) (2019).1

She argues termination of her parental rights is not in A.C.’s best interest.2

1 The father’s parental rights were also terminated. He does not appeal. 2 In her appellate brief, the mother also challenges the statutory grounds for termination, arguing the State has not shown A.C. could not be returned to her “now or in the near future.” However, the juvenile court terminated her parental rights under Iowa Code section 232.116(1)(d) only, which does not require the State to prove A.C. could not be returned to the mother’s custody at the time of the termination hearing. See Iowa Code § 232.116(1)(d) (allowing the juvenile court to terminate parental rights if the child was previously adjudicated a CINA under certain conditions, and “the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of service”). Because the mother does not address the statutory elements of section 232.116(1)(d) nor cite any authority addressing that provision, we decline to address her argument on appeal. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed 4

We review termination proceedings de novo. In re L.T., 924 N.W.2d 521,

526 (Iowa 2019). “Although we are not bound by the juvenile court’s findings of

fact, ‘we do give them weight, especially in assessing the credibility of witnesses.’”

In re M.D., 921 N.W.2d 229, 232 (Iowa 2018) (quoting In re D.W., 791 N.W.2d 703,

706 (Iowa 2010)). Our primary concern is the child’s best interest. Id. When

evaluating whether termination is in a child’s best interest, 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.” Iowa Code § 232.116(2). And “[i]t is well-settled

law that we cannot deprive a child of permanency after the State has proved a

ground for termination under section 232.116(1) by hoping someday a parent will

learn to be a parent and be able to provide a stable home for the child.” In re P.L.,

778 N.W.2d 33, 41 (Iowa 2010).

Given these factors, we conclude termination of the mother’s parental rights

is in A.C.’s best interest. The mother cannot provide a safe, nurturing home for

A.C. Throughout both CINA proceedings, the mother was offered several services

to help her deal with domestic-abuse and substance-abuse issues and meet A.C.’s

needs. She had not engaged with services as requested at the time of the

termination hearing. She refused to take drug tests as directed, and she was

discovered to be in public while intoxicated and with a methamphetamine pipe in

her purse. See In re H.L., No. 18-1975, 2019 WL 478903, at *1 (Iowa Ct. App.

waiver of that issue.”); State v. Lange, 831 N.W.2d 844, 847 (Iowa Ct. App. 2013) (“[W]e refuse to assume a partisan role and undertake a party’s research and advocacy when a party’s failure to follow the rules would require us to do so to reach the merits of the case.”). 5

Feb, 6, 2019) (collecting cases considering a parent’s failure to obtain substance-

abuse treatment as a factor weighing in favor of termination). And there is also no

evidence in the record that the mother participated in domestic-violence

programming, despite repeated incidents of violence between the mother and

father and a safety plan prohibiting contact between the parents.

The record also shows the mother is either unable or unwilling to address

A.C.’s needs. A.C. is a person with speech, learning, and physical disabilities that

require her to participate in speech therapy and counseling, go to doctor

appointments regularly, and wear an eye patch for part of the day. The mother did

not take A.C. to her appointments, and she did not have A.C. wear her eye patch

as directed. By the time A.C. was placed back in C.W.’s care in May 2019, A.C.

needed to wear her eye patch for a longer period of time each day because of the

mother’s failure to have the child wear it as recommended. After getting care of

A.C., C.W. discovered A.C. had been wearing reading glasses instead of

prescription glasses. A.C. also often arrived late or missed days of school while in

the mother’s care. At the time of the termination hearing, A.C. was still behind in

school.

On the other hand, C.W. has proven to be a capable caregiver for A.C.

Since being placed in C.W.’s care in May 2019, A.C. has attended her medical and

therapy appointments. C.W. works with A.C. after school and is actively engaged

with A.C.’s school to help A.C. catch up. C.W. testified at the termination hearing

that she “[a]bsolutely” would be willing to have A.C. stay with her long-term. See

Iowa Code § 232.116(2)(c) (permitting the court to consider a relative placement’s

testimony in the best interest analysis). A.C. is integrated with C.W.’s family, and 6

A.C. calls C.W. “mom.” See id. § 232.116(2)(b) (permitting the court to consider

how well integrated the child is with their placement family in the best interest

analysis).

A.C. deserves and needs stability and permanency, which the mother has

been unable or unwilling to provide. For the reasons stated, we conclude the

elements for termination under Iowa Code section 232.116(1)(d) have been

established.

For the same reasons, we find the mother’s claim termination is not in the

child’s best interest to be without merit. The mother has had years to demonstrate

an ability to properly parent the child and has failed to do so. The child has

languished, at best, in the mother’s care, while making noticeable improvement

when not in her care. Terminating the mother’s parental rights is in the child’s best

interest.

While not specifically citing Iowa Code section 232.116(3), the mother

blends an argument under that Code section into her argument about the child’s

best interest, so we will address it. The mother argues the child is placed in the

custody of a relative and there is a close bond between A.C. and her, both of which

could preclude termination under Iowa Code section 232.116(3)(a) and (c). She

argues the juvenile court erred by not considering a guardianship instead of

termination.

In addressing this final argument by the mother, we note several pertinent

legal principles. First, the application of the exceptions to termination set forth in

section 232.116(3) are permissive and not mandatory. In re M.W., 876 N.W.2d

212, 225 (Iowa 2016). Second, the burden of proving an exception is on the parent 7

resisting termination. In re A.S., 906 N.W.2d 467, 476 (Iowa 2018). Finally, a

guardianship is not a legally preferable alternative to termination. Id. at 477.

The mother failed to meet her burden. It is true the child is placed in the

custody of a relative, as referenced in section 232.116(3)(a). However, there is

nothing about that custodial arrangement that cuts in favor of avoiding termination

and requiring the burden of a guardianship for eleven years until A.C. becomes an

adult. See id. (noting the burdens of a guardianship and the unattractiveness of

that option when it must be kept in place for a long period of time). As to the

claimed closeness of a bond, in reference to the exception set forth in section

232.116(3)(c), we acknowledge there is some bond between A.C. and her mother,

but there is some question as to the closeness of that bond. A.C. has been out of

the mother’s care for much of the time since the child was very young, and the

child refers to C.W. as “mom.” We do not find the bond to be so close as to warrant

avoidance of termination.

We affirm the termination of the mother’s parental rights to A.C.

AFFIRMED.