In the Interest of A.O.L. and J.O.B., Minor Children

• Court: Court of Appeals of Iowa
• Decided: July 20, 2022
• Docket: 22-0739
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0739 Filed July 20, 2022

IN THE INTEREST OF A.O.L. and J.O.B., Minor Children,

C.O.-M., Mother, Appellant,

J.B., Father of J.O.B., Appellant,

T.L., Father of A.O.L., Appellant. ________________________________________________________________

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

Associate Judge.

A mother and two fathers appeal the juvenile court’s order terminating their

parental rights. AFFIRMED ON ALL THREE APPEALS.

Andrew R. Wiezorek of Jacobsen, Johnson & Wiezorek, P.L.C., Cedar

Rapids, for appellant mother.

Robert W. Davison, Cedar Rapids, for appellant father J.B.

Phillip D. Seidl of Seidl & Seidl, P.L.C., Cedar Rapids, for appellant father

T.L.

Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

Deborah M. Skelton, Walford, attorney and guardian ad litem for minor

children.

Considered by Vaitheswaran, P.J., and Tabor and Badding, JJ. 2

TABOR, Judge.

Three-year-old A.L. and her one-year-old sister, J.B., both have special

needs. The juvenile court terminated the parental rights of their mother, Candace;

A.L.’s father, Tony; and J.B.’s father, Judson. All three parents separately appeal.

After reviewing the record anew, we reach the same conclusions as the juvenile

court—the parents have not exhibited the necessary skills or resolve to manage

A.L.’s developmental delays or J.B.’s feeding issues. We thus affirm the

termination order.1

I. Facts and Prior Proceedings

Acting on a report of methamphetamine use in August 2020, the Iowa

Department of Human Services (DHS) investigated Candace for failing to properly

supervise A.L. Inside the family’s home, the child protective worker noticed a pipe

near the toddler. Candace shoved the pipe under a couch cushion, denying it was

drug paraphernalia. But Candace eventually tested positive for methamphetamine

and amphetamines. A.L. could not be placed with Tony, who was incarcerated in

Illinois. So the court approved the DHS request to remove the child from parental

care.2 For three months after A.L.’s removal, Candace refused services, including

drug testing and evaluations for substance abuse and mental health.

Meanwhile, A.L. went to live with her paternal grandparents, who worked

with the child on her significant developmental and speech delays. They

1 We review termination orders 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. The State must prove its case by clear and convincing evidence. In re L.B., 970 N.W.2d 311, 313 (Iowa 2022). 2 This removal was not Candace’s first brush with the DHS. She received services

in 2007, and the court terminated her rights to another child in 2012. 3

suspected the delays stemmed from neglect by Candace. Then in November

2020, Tony returned home from prison, staying in a camper on his parent’s

property. That arrangement allowed him to participate nightly in A.L.’s bedtime

routine. Tony also secured full-time employment, working six days a week for an

agricultural tiling company. The court adjudicated A.L. as a child in need of

assistance (CINA) in December 2020.

A few months after the DHS removed A.L., J.B. was born prematurely.

Feeding issues were among the complications from her premature birth. Candace

had a difficult time following J.B.’s strict feeding method and schedule. So nine

days after her birth, in January 2021, that child too was removed from Candace’s

care. The court adjudicated J.B. as a CINA in February 2021.

Candace identified the baby’s father as Judson, but he declined to

participate in services until a paternity test confirmed his status. That confirmation

occurred in April 2021. Yet he did not start participating in visits until June. Even

then Judson was a passive participant, never feeding the baby, changing her, or

tending to her other needs. Service providers reported that he relied on Candace

to do the hands-on parenting.

Both girls experienced a change in placements during their CINA cases. As

for A.L., her grandmother’s health concerns required a move in May 2021 to the

home of her paternal uncle and aunt, who lived about seventy miles away. That

distance made it harder for Tony to have regular contact with A.L. Candance

remained more consistent in her visitations. But it is the aunt and uncle who made

sure that A.L. attended her speech and occupational therapy at the University of

Iowa Hospitals and Clinics. As for J.B., she moved from one family foster home to 4

another in August 2021. The second foster mother had an easier time

communicating with Candace about J.B.’s needs. Also to the good, Candace has

consistently tested negative for controlled substances since January 2021.

But the DHS remained concerned about Candace’s ability to address the

special needs of both children. For example, throughout the case, service

providers were concerned Candace was not following the protocol for J.B.’s

feedings. The child needed to be fed no more than two ounces at a time while

placed on her side. They were concerned when Candace failed to respond to their

prompts regarding the feeding protocol. And in December 2021, service providers

reported that during visits she fed the children age-inappropriate foods and was

unreceptive to correction. Eventually, the court made the decision that J.B. would

not be fed during her visits with Candace. And the fathers were even less

engaged. The guardian ad litem (GAL) believed that both fathers loved their

children and enjoyed spending time with them. That said, the GAL reported that

the fathers also “appear to lack motivation to really dig in and learn how to parent

their girls.”

In January 2022, the State petitioned to terminate the parental rights of the

mother and both fathers. After a March 2022 hearing, the court granted that

petition. All three parents separately appeal.

II. Analysis

Our termination reviews generally follow a three-step process. In re D.W.,

791 N.W.2d 703, 706 (Iowa 2010). First, we look for proof of a termination ground.

Iowa Code § 232.116(1) (2022). Second, we consider the children’s best interests. 5

Id. § 232.116(2). And third, we examine any factors weighing against termination.

Id. § 232.116(3).

A. Candace’s Appeal

The mother shoehorns all three steps into a single issue, frustrating our

efforts to sort out her claims. For instance, on statutory grounds, she alleges the

court erred in terminating her rights under Iowa Code section 232.116(1),

paragraphs (g) and (h). But she does not specify what elements the State failed

to prove. Even in the abbreviated briefing that is allowed in these expedited

appeals, see Iowa Rs. App. P. 6.201(1)(d), 6.1401–Form 5, Candace’s position is

not sufficiently formulated to facilitate our review on the first step. See In re M.G.,

No. 11-0340, 2011 WL 2090045, at *4 (Iowa Ct. App. May 25, 2011).

Turning to the second step, Candace argues termination was not in the

children’s best interests because they were not “suffering adverse effects” while

she continued to comply with the case-plan requirements. She asserts that she

was a “hands-on parent,” had addressed her substance-abuse needs, completed

a mental-health evaluation, and had housing.3

True, the mother deserves high praise for consistently testing negative for

controlled substances. But in assessing best interests, we consider the children’s

safety, the best placement for furthering their long-term nurturing and growth, as

well as their physical, mental, and emotional condition and needs. See Iowa Code

3 We question the stability of the mother’s housing. She lived with Judson during the CINA cases. As the DHS worker noted, if Judson didn’t want her there, she would be without a place to stay. The worker observed: “She has been very codependent on either Tony or Judson during the entirety of the case, and if neither of them are able to be a support, then how is she going to maintain her needs as well as her kids’ needs.” 6

§ 232.116(2); see also In re P.L., 778 N.W.2d 33, 37 (Iowa 2010). Security and

the need for a permanent home mark the “defining elements” of children’s best

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

specially). On this record, the critical term is “needs.” Both girls have needs that

Candace is unable to meet. And we reject Candace’s assertion that the children

are not suffering adverse effects from the uncertainty of their future. A.L.,

especially, is emotionally unstable and “really struggles with transitions which can

cause some . . . meltdowns.” The children’s best interests are served by

terminating Candace’s parental rights.

Next, Candace argues that section 232.116(3)(c) applies here. That

provision allows a court to preserve parental rights if “[t]here is clear and

convincing evidence that the termination would be detrimental to the child[ren] at

the time due to the closeness of the parent-child relationship.” Proving that

exception was Candace’s burden. See In re A.S., 906 N.W.2d 467, 476 (Iowa

2018). To carry her burden, she points to her bond with the children.

Indeed, the DHS caseworker testified “they have a good relationship with

their mom and visits go well.” But the worker continued, “[O]utside of that, I think

stability and their needs outweigh that bond at this time.” We agree with that

assessment. In considering this factor, we focus on whether the children will be

“disadvantaged by termination” and whether that disadvantage outweighs the

parent’s inability to meet their needs. D.W., 791 N.W.2d at 709. While severing

the relationship with their mother may be hard on the girls, we see that

disadvantage as less weighty than concern about her ability to address their

special needs. 7

Finally, Candace contends she should be allowed six months more to

achieve reunification. A court may, at its discretion, defer permanency if it can

“enumerate the specific factors, conditions, or expected behavioral changes which

comprise the basis for the determination that the need for removal” of the children

from their home will no longer exist after the six-month reprieve. Iowa Code

§ 232.104(2)(b); see also In re A.M., 843 N.W.2d 100, 113 (Iowa 2014). Deferring

permanency would not be a good option for these children. Candace had eighteen

months to reunite with A.L. and fifteen months to regain custody of J.B. She hasn’t

been able to gain the necessary parenting skills in that time, and it is unlikely she

could do so with a deferral of permanency.

In the end, severing legal ties with the mother will enable these children to

secure the help they need to grow and thrive.

B. Tony’s Appeal

Tony contends the juvenile court erred in terminating his rights under Iowa

Code section 232.116(1)(h). But like Candace, he does not point to which element

he is contesting. That failure constitutes waiver of the issue on appeal. See In re

C.B., 611 N.W.2d 489, 492 (Iowa 2000) (“A broad, all encompassing argument is

insufficient to identify error in cases of de novo review.”).

Next, Tony argues termination of his parental rights was not in A.L.’s best

interests. See Iowa Code § 232.116(2). He touts their strong bond and urges that

severance of that bond “is extremely detrimental to the child’s future well-being.”

See Iowa Code § 232.116(3)(c). No question, Tony developed a good relationship

with his daughter. His mother testified that when A.L. was younger, Tony would 8

change her diapers and “help to get her food.” But the grandmother offered brutal

candor in estimating her son’s ability to transition to being a full-time parent:

Tony would make a good father, but right now he could not. He could not sustain her in the way that she is right now with the doctors that she goes to, with all the people that have been helping her, he just can’t do that. There is no way.

We credit the grandmother’s testimony on the child’s best interests.

Although Tony does not use the term “reasonable efforts,” he argues that

the DHS transfer of A.L. to the home of her uncle and aunt was “essentially a

forced estrangement” given how far away they lived and his “grueling work

schedule.” See In re L.M., 904 N.W.2d 835, 839 (Iowa 2017) (describing

reasonable efforts concept as including visitation arrangement designed to

facilitate reunification while protecting child from harm). Then in the next

paragraph he argues that her placement with relatives “provides the basis for the

exception codified under Iowa Code section 232.116(3)(a).”

To untangle those threads, we note that the relative placement provided

A.L. with a stable environment after her grandmother’s health started failing. A.L.

has assimilated into the new home, where she has four cousins to make her feel

welcome. The DHS continued to offer Tony visitation with A.L. at his brother’s

house, but Tony was inconsistent in attending. As for the application of

section 232.116(3)(a), Tony has not established that A.L. was in the “legal custody”

of a relative. See In re A.B., 956 N.W.2d 162, 170 (Iowa 2021) (noting DHS

retained legal custody).

Finally, Tony contends he could have achieved reunification if given another

sixty to ninety days. We don’t see support for that contention in the record. Indeed, 9

the aunt testified that Tony “knew he could not have [A.L.] full-time” considering

“all of her therapies and multiple appointments and concerns with his job.”

Finding no merit to Tony’s arguments, we affirm the termination of his

parental rights to A.L.

C. Judson’s Appeal

Judson argues the juvenile court erred in terminating his rights under Iowa

Code section 232.116(1)(h).4 He challenges only the fourth element, asserting

J.B. could be safely returned to his care “with some additional parenting

instruction.” With similar hedging, Judson adds his home “was available and would

have been a more than adequate placement.”

From our review of the record, we find the State presented clear and

convincing evidence that J.B. could not be safely placed in Judson’s care as of

March 2022. L.M., 904 N.W.2d at 839 (defining “present time” as time of

termination hearing). Judson never progressed beyond semi-supervised visits.

The social worker testified that Judson never had a solo visit with J.B. Candace

was always there. And at those visits, he was not “interactive” with J.B. and did

not demonstrate his ability to meet his young daughter’s needs. In fact, service

providers reported that Judson sometimes slept during the visits. Termination was

proper under paragraph (h).

4 Under Iowa Code section 232.116(1)(h), the court may terminate parental rights if: (1) “The child is three years of age or younger”; (2) has been adjudicated CINA under section 232.96; (3) “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”; and (4) “clear and convincing evidence” exists “that the child cannot be returned” home “as provided in section 232.102 at the present time.” 10

Judson next contends termination was not in J.B.’s best interests because

of their bond. See Iowa Code §§ 232.116(2), (3)(c). He also mentions in passing

that if “given a few more months” he could adequately care for J.B. The record

does not support Judson’s contention that his relationship with J.B. is so close that

termination would be detrimental to her welfare. Or that a delay in permanency is

appropriate. See In re W.T., 967 N.W.2d 315, 324 (Iowa 2021) (noting father had

several months to form close relationship with his child and “simply neglected to

do so”). Finding no merit to Judson’s arguments, we affirm the termination of his

parental rights to J.B.

In sum, these children have special needs that cannot be met by their

biological parents. Thus we find termination of parental rights offers the best

chance of providing these children with a stable and healthy future.

AFFIRMED ON ALL THREE APPEALS.