In the Interest of A.M. and T.M., Minor Children

• Court: Court of Appeals of Iowa
• Decided: August 9, 2023
• Docket: 23-1022
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1022 Filed August 9, 2023

IN THE INTEREST OF A.M. and T.M., Minor Children,

C.M., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Korie Talkington,

District Associate Judge.

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

Camille Kahn of Brubaker, Flynn & Darland, P.C., Davenport, for appellant

mother.

Brenna Bird, Attorney General, and Natalie Hedberg, Assistant Attorney

General, for appellee State.

Patricia A. Rolfstad, Davenport, attorney and guardian ad litem for minor

children.

Considered by Ahlers, P.J., Chicchelly, J., and Mullins, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023). 2

MULLINS, Senior Judge.

A mother appeals the termination of her parental rights to her children—

born in 2019 and 2020—under Iowa Code section 232.116(1)(f) and (h) (2023).

She argues the Iowa Department of Health and Human Services failed to make

reasonable efforts at reunification and the permissive exception to termination in

Iowa Code section 232.116(3)(c) should have been applied.1

Beginning with the mother’s reasonable-efforts challenge, the mother

submits she preserved error “through the statement of counsel during the

termination hearing arguing the failures of the department to explore additional

avenues to best allow [the mother] to demonstrate her ability to parent the

children.” The State responds that waiting until the termination hearing to raise

her complaints about services was too late to preserve error. We agree. See In

re T.S., 868 N.W.2d 425, 442 (Iowa Ct. App. 2015) (noting the parent has the

responsibility “to demand other, different, or addition services prior to the

termination hearing” and when the parent “fails to request other services at the

proper time, the parent waives the issue and may not later challenge it at the

termination proceeding” or on appeal (citations omitted)). While the mother also

1 In the portion of her petition on appeal concerning the “[n]ature of the case and

relief sought,” the mother passively states “clear and convincing evidence does not exist to show the children were unable to be returned to [her] care at the time of the hearing” and “termination of parental rights is not in the best interest of the children due to the closeness of the parent-child relationship.” However, the only “legal issues presented for appeal” in the portion of the mother’s petition dedicated to actual substantive argument, are that the State failed to make reasonable efforts at reunification and the permissive exception to termination in Iowa Code section 232.116(3)(c) should have been applied. We only address the arguments for which the mother provides substantive argument and deem the others waived. See Iowa R. App. P. 6.903(2)(g)(3). 3

claims the department’s reports indicate the mother requested additional services

“in the form of play therapy,” raising the issue to someone other than the court

does not preserve error.2 In re C.H., 652 N.W.2d 144, 148 (Iowa 2002). And the

lack of play therapy was not an inadequacy the mother alleged at the termination

hearing.

Turning to the permissive exception cited by the mother, Iowa Code

section 232.116(3)(c) authorizes the court to forgo termination when it “would be

detrimental to the child . . . due to the closeness of the parent-child relationship.”

The application of a statutory exception to termination, if one is established, is

“permissive, not mandatory.” In re M.W., 876 N.W.2d 212, 225 (Iowa 2016)

(citation omitted). And “the parent resisting termination bears the burden to

establish an exception.” In re A.S., 906 N.W.2d 467, 476 (Iowa 2018).

As the mother points out, there was testimony that the children share some

form of a bond with her. But the mother presented no evidence that the bond is

so strong that the children would suffer physical, mental, or emotional detriment

upon termination. And it is hard to imagine they would given their relatively young

age; the length of removal; and their bond with and integration into their foster

placement, which serves as a viable permanency option. As such we conclude

this exception to termination is not applicable and affirm termination.

AFFIRMED.

2 The case permanency plan—dated mere days before the June 2023 termination

hearing—noted the mother “would like the children to be enrolled in some form of play therapy.” However, the plan explained “play therapy is not something that has been established given the children have become accustomed to their foster home and have not shown signs of aggression or behaviors.”