In the Interest of A.S., Minor Child

• Court: Court of Appeals of Iowa
• Decided: January 10, 2024
• Docket: 23-1755
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1755 Filed January 10, 2024

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

K.S., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Wapello County, Richelle Mahaffey,

District Associate Judge.

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

AFFIRMED.

Patricia J. Lipski, Washington, for appellant mother.

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

General, for appellee State.

Samuel K. Erhardt, Ottumwa, attorney and guardian ad litem for minor child.

Considered by Greer, P.J., and Ahlers and Buller, JJ. 2

GREER, Presiding Judge.

The mother appeals the termination of her parental rights to her child, A.S.,

born in April 2022.1 On appeal, the mother argues both that the Iowa Department

of Health and Human Services failed to exercise reasonable efforts towards

reunifying her and A.S. and that the juvenile court should have ordered a

guardianship rather than termination. She simultaneously wraps in a challenge to

the juvenile court’s failure to offer her six more months of time and insists that

terminating her rights would not be in A.S.’s best interests based on the strength

of their bond. We affirm.

I. Background Facts and Prior Proceedings.

This family first came to the attention of the department in June 2022, when

A.S. was two months old, based on allegations that the mother was actively using

methamphetamine while caring for A.S. and associating with known drug users. A

child protective worker visited the mother and A.S. at their home and observed

multiple signs of recent methamphetamine use in the mother. Citing safety

concerns, the State requested that the department take custody of A.S., and the

juvenile court issued an ex parte removal order the same day and confirmed the

order in July 2022. A.S. has remained placed with fictive kin2—a family friend—

under the supervision of the department since then.

1 The juvenile court also terminated the father’s parental rights; he is not a party to

this appeal. 2 “‘Fictive kin’ means an adult person who is not a relative of a child but who has

an emotionally positive significant relationship with the child or the child’s family.” Iowa Code § 232.2(22) (2022). 3

Throughout the summer of 2022, the mother refused or did not participate

in several requested drug tests. She was also in and out of jail on various probation

violations and new charges; she remained in jail after mid-August. During the few

weeks that the mother was not incarcerated, she participated in case management

services, probation-based case work, family-centered services, and supervised

interactions with A.S. The mother never progressed beyond supervised visitation

with A.S. While the mother was in jail, she participated in video visits with A.S.

twice weekly for fifteen minutes each time.

A contested adjudication hearing was scheduled for August 2022, and after

the mother stipulated to it, A.S. was adjudicated a child in need of assistance

(CINA) the day of the hearing pursuant to Iowa Code section 232.96A(3)(b) and

(14). In its adjudicatory order, the juvenile court continued the placement of A.S.

with the fictive kin. The juvenile court did the same in a dispositional order in

September 2022. In October 2022, the mother’s probation was revoked, and she

was sentenced to prison. The juvenile court also held a review hearing in

December 2022.

The State petitioned to terminate parental rights under Iowa Code

section 232.116(1)(e), (g), and (h) (2023) in conjunction with a permanency

hearing in March 2023. In July 2023, the mother was denied parole. Throughout

this time, the department provided visitation between the mother and A.S. for two

hours weekly, and the fictive kin facilitated additional visits. Throughout her

incarceration, the mother participated in various programs through the prison

including a few counseling sessions; medication management; employment; and

behavioral, mental-health, and life-skills classes. The mother also regularly was 4

in contact with A.S. and her fictive kin via telephone. At the same time, the mother

cancelled two monthly visits from the department—in February and June 2023.

The mother also declined to participate in mental-health therapy.

The juvenile court held a permanency review and termination-of-parental-

rights hearing over two days in July and September 2023. At the hearing, a social

work case manager for the department testified that “at almost every monthly visit

I’ve had with [the mother] throughout this case, we talked about [A.S.’s] removal,

and [the mother] continues to not understand why [A.S.] was removed from her

care.” The case manager also testified that the mother insisted that she was not

actively using illegal substances at the time of A.S.’s removal. On top of that, the

case manager added that at some in-person meetings, A.S. would not go to the

mother but instead would cry and go towards the fictive kin, and that A.S. is

reluctant and guarded around the mother as A.S. had only been in the care of the

mother for two-and-one-half months before the ex parte removal order. The family

support specialist testified that the mother never acknowledged that she used

methamphetamine nor expressed a real desire to address her substance abuse.

The family support specialist also said that she did not believe that A.S. looks at

the mother “like a mom” and that A.S. is not bonded with the mother.

The mother testified that if and when she is granted parole, she plans to

move to Texas but could also stay in Iowa and be released to a halfway house for

a couple of months before finding stable housing. She also said that A.S. calls her

“Mom, Momma, so [the mother] think[s] that there is a bond there.” The mother

specifically asked for a six-month extension or for a guardianship in lieu of

termination with the fictive kin because she wanted “later on in life if something 5

were to happen for [her] to be reconsidered for a caretaker for” A.S. When asked

if she was able to provide A.S. with permanency at the time of the hearing, the

mother said, “No, I’m not.”

In August 2023, the fictive kin became a licensed foster parent. In October

2023, the juvenile court terminated the mother’s parental rights pursuant to Iowa

Code section 232.116(1)(e), (g), and (h). In its order, the juvenile court explicitly

found that reasonable efforts had been made to achieve the permanency goal and

that the mother failed to present clear and convincing evidence that any exception

to termination should apply. The mother appeals.

II. Standard of Review.

We review the termination of parental rights de novo. In re Z.K., 973

N.W.2d 27, 32 (Iowa 2022). We give careful consideration to the juvenile court’s

factual findings and in-person observations, but we are not bound by them. In re

W.M., 957 N.W.2d 305, 312 (Iowa 2021). “[O]ur fundamental concern” in review

of termination proceedings “is the child’s best interests.” In re J.C., 857 N.W.2d

495, 500 (Iowa 2014).

III. Analysis.

In general, we follow a three-step analysis in reviewing the termination of a

parent’s rights. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). We first consider

whether there is a statutory ground for termination of the parent’s rights under

section 232.116(1). Id. Second, we look to whether termination of the parent’s

rights is in the child’s best interests. Id. (citing Iowa Code § 232.116(2)). Third,

we consider whether any of the exceptions to termination in section 232.116(3)

should be applied. Id. 6

First, the mother does not appear to challenge the statutory grounds for

termination, so we do not address that issue. Id. at 40 (stating that “we do not

have to discuss [the first step]” when a parent fails to dispute the existence of all

grounds for termination under section 232.116(1)); Hyler v. Garner, 548 N.W.2d

864, 870 (Iowa 1996) (“[O]ur review is confined to those propositions relied upon

by the appellant for reversal on appeal.”). Instead, on appeal, the mother asserts

four arguments in two packages: (1) the department did not make reasonable

efforts to reunite her with A.S., and as a consequence of that, (2) the juvenile court

should have granted her more time to work towards reunification. In addition, (3)

the strength of her bond with A.S. makes termination not in A.S.’s best interests,

and as a consequence of that, (4) the juvenile court should have ordered a

guardianship rather than termination. The mother wraps her challenge to

reasonable efforts by the department into a request for six additional months to

work towards reunification. The State responds that the mother failed to preserve

error on this issue.

A parent cannot challenge reasonable efforts for the first time on appeal or

even first raise a challenge at the termination hearing. See In re E.H., No. 21-

0467, 2021 WL 2709486, at *2 (Iowa Ct. App. June 30, 2021). A parent must alert

the juvenile court of any perceived deficiency in services “at the removal, when the

case permanency plan is entered, or at later review hearings.” In re C.H., 652

N.W.2d 144, 148 (Iowa 2002). When a parent fails to timely request additional or

different services, the parent waives any reasonable-efforts challenge. Id. Here,

the mother never timely informed the juvenile court of any deficiency in services,

so her reasonable-efforts challenge is waived. And on appeal, her contentions— 7

wanting more visitation and more counseling services—relate to alleged failures

by the department that are realistically restricted by the fact the mother is in prison

and because of her own decisions, including failing to fully exhaust the services

offered.3 See id. at 147 n.4 (requiring a parent to identify deficiencies in services

or request additional services before being able to challenge the sufficiency of the

services).

To the extent that the mother also argues for an additional six months of

time to work towards reunification, after the termination trial, the juvenile court may

decide to not terminate parental rights if it finds there is clear and convincing

evidence that CINA proceedings should continue and enters an order to extend

the time for reunification in accordance with section 232.104(2)(b). Iowa Code

§ 232.117(5). The court may continue the proceedings for an additional six months

if it finds “the need for removal . . . will no longer exist at the end of the additional

six-month period.” Id. § 232.104(2)(b). But at the same time, “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 A.M., 843 N.W.2d 100, 112 (Iowa

2014). Here, the mother failed to demonstrate that the need for termination—the

danger to A.S. through the mother’s active drug use, lack of accountability for and

understanding of her actions, and incarceration due to repeated probation

violations and criminal convictions—will no longer exist in six months. With so

many factors still “up in the air,” we do not know if or when the mother will be

3 The mother was offered mental-health counseling in prison but, prior to the termination hearing, she had chosen to only attend three sessions. 8

released from prison or if she will be granted parole. Likewise, she had no plan

formulated once released, as she testified she might stay in Iowa or move to Texas.

Therefore, the request for six additional months, along with her reasonable efforts

argument, fails.

The mother also wraps a challenge based on the strength of her bond with

A.S. into a request for a guardianship rather than termination. See Iowa Code

§ 232.117(5) (allowing the court, after a termination hearing, to not order

termination of parental rights but instead enter an order in accordance with several

sections, including section 232.104); see also id. § 232.104(2)(d)(2) (allowing the

court to enter an order transferring guardianship and custody of the child to fictive

kin). To establish the guardianship in lieu of termination, the court must determine

by clear and convincing evidence that “termination of the parent-child relationship

would not be in the best interest of the child.” Id. § 232.104(4)(a). But, as our

courts have often stated, “a guardianship is not a legally preferable alternative to

termination.” W.M., 957 N.W.2d at 315 (citation omitted); In re B.T., 894 N.W.2d

29, 32 (Iowa Ct. App. 2017). Here, the mother’s argument for a guardianship with

the fictive kin who has cared for A.S. since her removal in June 2022 amounts to

nothing more than an argument that such a guardianship is a legally preferable

alternative to termination of the mother’s parental rights; and, in particular given

the small percentage of A.S.’s life that she has spent with the mother, we decline

to order it instead of termination. The child deserves permanency, and a

guardianship would not serve that need in these circumstances. See A.M., 843

N.W.2d at 112. 9

To the extent that the mother also argues for the permissive exception to

termination based on the strength of her bond with A.S., the closeness of a parent-

child bond may serve as a permissive exception to termination. See Iowa Code

§ 232.116(3)(c). It is the mother's burden to establish a permissive exception. In

re A.S., 906 N.W.2d 467, 475–76 (Iowa 2018). To do so, she has to demonstrate

via “clear and convincing evidence that ‘termination would be detrimental to the

child at the time due to the closeness of the parent-child relationship.’” In re A.B.,

956 N.W.2d 162, 169 (Iowa 2021) (quoting Iowa Code § 232.116(3)(c)). Yet, the

evidence established at the termination trial showed that A.S. did not have a strong

bond with the mother. Instead, A.S. appeared reluctant and guarded around the

mother, likely because of the small relative amount of A.S.’s life that she spent in

the care of the mother. Likewise, the family support specialist testified that she did

not believe that A.S. and the mother were bonded, and the mother did not clearly

refute this claim. Without clear and convincing evidence that any bond between

the mother and A.S. rises to the level of preventing termination, we also decline to

rely on the permissive exception.

IV. Conclusion.

For these reasons, we affirm the decision of the juvenile court terminating

the mother’s parental rights to A.S.