In the Interest of A.M., Minor Child

• Court: Court of Appeals of Iowa
• Decided: August 19, 2020
• Docket: 20-0480
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0480 Filed August 19, 2020

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

J.M., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Plymouth County, Andrew Smith,

District Associate Judge.

A mother appeals the termination of her parental rights pursuant to Iowa

Code chapter 232 (2019). AFFIRMED.

Jessica R. Noll of Deck Law PLC, Sioux City, for appellant mother.

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

Attorney General, for appellee State.

Debra S. De Jong of De Jong Law Firm, P.C., Orange City, attorney and

guardian ad litem for minor child.

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

AHLERS, Judge.

The mother of this six-year-old child challenges the juvenile court’s order

terminating her parental rights. She makes the following claims on appeal: (1) the

juvenile court erred by denying her request for new counsel; (2) the State failed to

prove statutory grounds for termination; (3) termination of her rights is not in the

child’s best interests; and (4) she should be given additional time to work toward

reunification.

I. Background Facts.

Before addressing the issues, some background facts are in order. Even

before the events leading to the initiation of this case occurred, the child was living

at the home of the child’s maternal grandparents. The Iowa Department of Human

Services (DHS) resumed involvement with the family when one of the child’s half-

siblings sexually abused the child. While that problem was being investigated and

addressed, it was discovered the mother was staying in a motel with her boyfriend,

a man who stabbed her several times a few months earlier. When DHS workers

discovered that the mother was still in a relationship with that man, the child was

formally removed from the mother’s care for the child’s safety and officially placed

with the maternal grandparents. This occurred in December 2018. Around the

time of removal, a DHS worker asked the mother to submit to a test of her hair to

check for illegal drugs. The mother refused.

Following removal, the mother initially got her own apartment and began

exercising visitation. However, her participation in visitation was not consistent or

long-lived. She had only five visits with the child between February and April 2019.

After a visit in early April 2019, the mother disappeared in terms of visiting the child 3

or participating in services. She could not be found at her place of employment or

her apartment, and her car was gone. The mother did not resurface until August

2019. The child began experiencing a great deal of anxiety related to the mother’s

sporadic involvement in the child’s life.

After the mother resurfaced, she began to exercise regular visits, but the

visits were supervised. The mother’s visits with the child were hampered when the

maternal grandparents moved to Nebraska with the child in December 2019.1

During the fall of 2019, the mother began mental-health and substance-abuse

treatment that had been recommended. Unfortunately, the mother dropped out of

both treatment programs within approximately one month. By the time of the

termination hearing in February 2020, at which the mother participated by

telephone and declined to testify, the mother had moved to Illinois with her abusive

boyfriend, had no job, had no vehicle, had no housing, and was not involved with

counseling.

Based on these circumstances, the juvenile court terminated the mother’s

parental rights pursuant to Iowa Code section 232.116(1)(e) and (f) (2019). The

mother appeals. The father’s rights were also terminated, but he has not appealed.

II. Standard of Review.

Regarding the denial of the mother’s attorney’s motion to withdraw, we

review for an abuse of discretion. In re A.W., No. 17-0917, 2017 WL 4049236, at

*3 (Iowa Ct. App. Sept. 13, 2017) (citing State v. Brooks, 540 N.W.2d 270, 272

(Iowa 1995)). As to the decision to terminate the mother’s rights, our review is de

1 The DHS approved the move. 4

novo. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). On our de novo review, we

are not bound by the juvenile court’s factual findings, but we give them weight,

especially in assessing the credibility of witnesses. Id.

III. Discussion.

Termination proceedings under Iowa Code chapter 232 follow a three-step

analysis: (1) determine whether any ground for termination under section

232.116(1) has been established; (2) determine whether the best-interest-of-the-

child framework set forth in section 232.116(2) supports termination of parental

rights; and (3) consider whether any exceptions in section 232.116(3) apply to

preclude termination of parental rights. In re M.W., 876 N.W.2d 212, 219–20 (Iowa

2016). As noted, the mother challenges this analysis, the denial of her request for

new counsel, and the denial of her request for additional time for reunification. We

address each challenge separately.

A. Denial of Request to Substitute Counsel.

At 3:52 p.m. on the day before the scheduled termination hearing, the

mother’s attorney filed a motion to withdraw. The attorney cited a breakdown of

the attorney-client relationship and noted the mother requested substitute counsel.

A hearing on the motion was conducted the next day at the start of the 1:30 p.m.

termination hearing. After hearing from the parties, the juvenile court denied the

motion. The mother challenges this denial.2

2 In her appellate filing, the mother identified this issue as challenging the juvenile court’s denial of the mother’s request to replace counsel. In the body of that section of the filing, the mother makes passing reference to a claim of ineffective assistance of counsel. To the extent the mother is raising an ineffective- assistance-of-counsel claim, we deem the issue waived due to the mere passing reference to the issue coupled with, at best, a perfunctory argument about it. See 5

Termination proceedings necessarily involve some degree of urgency, as

permanency for the child is at stake. See In re J.C., 857 N.W.2d 495, 502 (Iowa

2014) (“Courts are obliged to move urgently to achieve the ends that will serve the

child’s interests because childhood does not ‘await the wanderings of judicial

process.’” (quoting In re A.C., 415 N.W.2d 609, 613 (Iowa 1987))). Here, the

attorney had been representing the mother for approximately fourteen months, yet

no complaints about the attorney had been lodged until late in the afternoon the

day before the termination hearing, which had already been continued two

previous times. This timing alone raises suspicion as to the motive behind the

mother’s request. Besides the fact the mother’s attorney was familiar with the case

and zealously represented the mother throughout, the attorney reported he was

prepared to proceed and demonstrated that preparation by the competent manner

in which the attorney performed at the hearing.

When questioned about the basis for her request to replace counsel, the

mother asserted there was evidence she wanted to submit that had not been

submitted, but she gave no understandable explanation of what that evidence was

or why she could not present it at the termination hearing that was being held that

very day. Furthermore, the attorney informed the juvenile court that there was no

evidence of which he had been made aware that the mother wanted to present

that was not presented. Finally, with the benefit of hindsight, it is apparent the

mother’s claim regarding evidence she wanted to present was not genuine; she

Goode v. State, 920 N.W.2d 520, 524 (Iowa 2018) (noting the failure to clearly identify an issue constitutes waiver); State v. Tyler, 867 N.W.2d 136, 166 n.14 (Iowa 2015) (indicating a “passing reference” to an issue in a brief is insufficient). 6

chose not to present any evidence at the termination hearing immediately

thereafter and expressly declined to testify to rebut any of the allegations

supporting termination. Under these circumstances, the juvenile court acted

appropriately in denying the requested withdrawal and replacement of the mother’s

attorney, and there was no abuse of discretion.

B. Statutory Grounds for Termination.

As noted, the juvenile court found grounds for termination under both

section 232.116(1)(e) and (f). The mother challenges both grounds. We need not

address both grounds, as there only needs to be sufficient proof of one ground in

order to affirm. In re R.K., 649 N.W.2d 18, 19 (Iowa Ct. App. 2002). We choose

to address the grounds for termination under section 232.116(1)(f), which permits

the juvenile court to terminate parental rights if it finds all of the following:

(1) The child is four years of age or older. (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 twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child’s parents as provided in section 232.102.

The mother challenges only the juvenile court’s finding regarding the fourth

element, so we do not address the first three.

As to the fourth element, the mother focuses on the child’s move to

Nebraska with the grandparents, claiming it interfered with her ability to visit the

child and thus show the child could be returned to the mother’s care. We have

little doubt the child’s move to Nebraska posed a challenge for the mother. 7

However, we disagree with the claim that it substantially changed the complexion

of this case. By the time the child moved, the mother had already dropped out of

treatment. Also, within a few weeks of the move, the mother once again dropped

off the DHS radar and was not participating in any visits or with any services. Once

the mother’s whereabouts became known, it was discovered the mother had

continued or resumed her relationship with her violent boyfriend, moving even

farther away from the child to be with the boyfriend rather than prioritizing the child.

Given the fact the child had been removed from the mother’s care due to

safety concerns surrounding the mother’s relationship with the violent boyfriend,

the mother’s continued involvement with him sabotaged any reunification efforts.

Fourteen months following removal, at the time of the termination hearing, the

mother was no closer to being able to have the child returned. The mother not

only failed to distance herself from the abusive boyfriend, but she moved farther

away from the child to continue the relationship with the boyfriend. She had no

known housing, transportation, or employment. Meanwhile, the child continued to

receive mental-health services to address, among other issues, the anxiety and

other adverse effects of the mother’s sporadic involvement in the child’s life.

Based on these circumstances, we agree with the juvenile court’s conclusion that

the child could not be safely returned to the mother’s custody, thereby satisfying

the fourth element of section 232.116(1)(f) and the grounds for termination.

C. Best Interests of the Child & Permissive Factors.

The mother also challenges the juvenile court’s finding with regard to the

best interests of the child. See Iowa Code § 232.116(2). In doing so, she includes

arguments related to the child being placed with a relative and her claimed bond 8

with the child, both of which implicate the third step, the permissive exceptions of

section 232.116(3). We will address these two steps separately.

As to the mother’s claim that termination is not in the child’s best interests,

we note the child’s safety and the need for a permanent home are the “defining

elements in a child’s best interest.” In re A.M., 843 N.W.2d 100, 113 (Iowa 2014)

(quoting In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring

specially)). The mother provided neither. She has prioritized her relationship with

a violent man over the child’s safety. She has not provided a stable home. In fact,

at the time of the termination hearing, the mother had no known home or means

of providing one. In contrast, the grandparents have provided a safe and stable

home for the child. On our de novo review, we find it to be in the child’s best

interests to terminate the mother’s parental rights.

Turning to the permissive exceptions, Iowa Code section 232.116(3)

provides multiple possible exceptions to termination, the following two of which are

raised by the mother:

The court need not terminate the relationship between the parent and child if the court finds any of the following: a. A relative has legal custody of the child. .... c. There is clear and convincing evidence that the termination would be detrimental to the child at the time due to the closeness of the parent-child relationship.

The exceptions to termination set forth in section 232.116(3) are permissive, not

mandatory, so the court is not required to apply them even if they have been

established. A.S., 906 N.W.2d at 475. The parent resisting termination bears the

burden of proof to establish an exception under section 232.116(3). Id. at 476. 9

The mother established that a relative had legal custody of the child, so the

exception in section 232.116(3)(a) is an option. However, she failed to establish

that this permissive factor should be applied to negate termination. “An

appropriate determination to terminate a parent-child relationship is not to be

countermanded by the ability and willingness of a family relative to take the child.”

In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). Here, not only have the

grandparents stepped up to care for this child, they have also cared for the

mother’s other children. The grandparents are providing a stable home, which the

mother has been unable or unwilling to provide. Their willingness to pick up the

slack caused by the mother’s parenting deficiencies does not warrant denying

termination.

The mother claims her bond with and love for the child should prevent

termination pursuant to section 232.116(3)(c). We disagree. First, the statute

requires “clear and convincing evidence that termination would be detrimental to

the child due to the closeness of the parent-child relationship.” Iowa Code

§ 232.116(3)(c). Even if we were to assume the mother established a close bond,

which is debatable, there was not clear and convincing evidence termination would

be detrimental to the child. In fact, the evidence established the opposite. The

child suffered negative effects as a result of the disruption to the child caused by

the mother’s on-again, off-again involvement. Second, while we have no doubt

the mother loves the child, love is not enough to trigger this exception. See In re

D.W., 791 N.W.2d 703, 709 (Iowa 2010) (noting the consideration when assessing

the exception in section 232.116(3)(c) is not the parent’s love for the child, but

whether the child will be disadvantaged by termination). The disadvantages of 10

termination do not overcome the safety concerns that would come with denying

D. Additional Time.

The mother asks that termination be denied and argues she should be given

an additional six months to work toward reunification pursuant to Iowa Code

section 232.104(2)(b). We find this argument unpersuasive. Before giving the

mother an additional six months, we would be required to make a determination

the need for removal will no longer exist at the end of the extension. Id.

§ 232.104(2)(b); In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005). We find

no persuasive evidence allowing us to make this determination. The mother is no

closer to being a safe placement option now than when removal occurred. If

anything, she is farther away, both physically and practically. Having no

persuasive evidentiary support in the record convincing us things will be better, let

alone good enough for reunification, in six months’ time, we conclude the mother

is not entitled to additional time.

AFFIRMED.