IN THE COURT OF APPEALS OF IOWA
No. 22-0949 Filed August 31, 2022
IN THE INTEREST OF A.U. and J.U., Minor Children,
F.B., Mother, Appellant,
N.U., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Joan Black, District
Associate Judge.
A mother and father separately appeal the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
Kristin L. Denniger of Denniger Law Firm, Mount Vernon, for appellant
mother.
Caleb T. Detweiler of Honohan, Epley, Braddock & Brenneman, LLP, Iowa
City, for appellant father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Anthony Haughton of Linn County Advocate Inc., Cedar Rapids, attorney
and guardian ad litem for minor children.
Considered by Bower, C.J., and Tabor and Badding, JJ. 2
BADDING, Judge.
Parents who immigrated from Africa separately appeal the termination of
their parental rights to the two youngest of their five children under Iowa Code
section 232.116(1)(h) (2022). Claiming that cultural differences were the
motivating factor in terminating their parental rights, the parents challenge each of
the three steps in the termination process. The father also claims he should have
been granted more time to work toward reunification. We affirm.
I. Background Facts and Proceedings
Since 2013, this family has been the subject of sixteen child abuse
investigations or assessments by the Iowa Department of Human Services. During
many of these, the mother was left alone with the children while the father was in
Africa for months at a time. The first report was made when the mother was in a
car accident. After she was taken to the hospital, the mother told staff that she
had left her eight-month-old child home alone while she went to the store.
In 2016, the department investigated four reports about the family. In each,
the mother reported she was overwhelmed with caring for the three children the
family had then. Workers consistently noted the home was dirty, with dishes piled
in the sink, food spilled on the floor, and pest infestations. A child-in-need-of-
assistance case was filed that year and closed the following.
Despite the services provided in the first case, the same issues continued
to be reported to the department. In 2018, the family was living in a dilapidated
trailer. A report was made that there was “a metal door frame laying in the home,
garbage throughout the home, no windows in the home, [and] no utilities or 3
electricity.” The parents were also allowing the children “to freely roam the trailer
park.” Services were again provided, but the reports continued.
In the spring of 2019, a child protective worker with the department noted
the home was “in disarray, with laundry covering the couch and floors,” and “dirty
dishes stacked in the sink & counters, as well as mouse droppings in the
windowsills.” Later that year, the oldest child was almost hit by a car while riding
her bike in the street. When the police arrived to assist, they discovered the child
had been left home alone after school. She was six years old at the time. While
at the home, police observed it was “uninhabitable” and in “deplorable condition”:
[T]here was fish in the refrigerator and it is no longer working, leaving the home with an over[whelming] smell of rotten fish. The home is filled with flies and other insects. There are mice seen running throughout the home. There is no electricity and there is evidence of raw sewage in the bathroom.
The children were removed from the parents’ care, and child-in-need-of-
assistance proceedings were started. Two months later, the mother gave birth to
the couple’s fourth child—A.U. Hospital staff reported the baby was “having issues
with feeding and [the mother] has shown no interest in learning how to ensure that
the child is eating sufficiently and has made no attempts to feed the child.” The
father had not been to the hospital since the baby was born. Like her older siblings,
A.U. was removed from her parents’ care, and a child-in-need-of-assistance
petition was filed. A.U. was discharged from the hospital about a week later with
a feeding tube.
The juvenile court confirmed A.U.’s removal after a contested hearing,
directing in its order that because of “language barriers, all efforts should be made
to provide interpreting [for] the mother or father,” who spoke Swahili and French, 4
when services were being provided. The parents stipulated that A.U. was a child
in need of assistance under Iowa Code section 232.2(6)(c)(2) (2019) and began
trying to get all of their children back in their care.
To that end, the mother completed a psychological evaluation in
September. While the results were limited because of language barriers, she was
diagnosed with postpartum depression and post-traumatic stress disorder. The
psychologist noted the mother appeared “to be completely overwhelmed.” He
suspected that she “was not comprehending expectations and that may be cultural
difficulties or it may reflect the severity of her current depression.” The
psychologist recommended support services for the mother “in which someone
would come in the home and teach her basic. cleaning techniques and basic child-
rearing strategies. She comes from an equatorial country and strategies and
expectations for hygiene may be much different there.”
Those services were provided to the parents and helped for a time. A trial
home placement was approved for the three oldest children at the end of 2019
despite a report from the second oldest child that the mother had hit him with a cell
phone charger cord. The parents’ visits with A.U. remained fully supervised
because the mother struggled to feed her as medically directed. During this time,
a department caseworker noted:
In terms of [A.U.], [the father] is nearly non-existent in her life. He does not attend visits and has not attended any doctor appointments since very early on in this case. [The mother] is left to be the one raising all of the children and adding [A.U.] to the mix just seems to be too much for her to handle. 5
The caseworker recommended the older children remain in their trial home
placement, even though the condition of the home was deteriorating again, but
suggested termination of parental rights for A.U.
At the permanency hearing for A.U., the juvenile court elected to give the
parents another six months to work toward reunification. Custody of the oldest
three children was returned to the parents in April 2020 under the protective
supervision of the department. But reunification with A.U. was stalled because of
COVID and also because “it appears that [the mother] cannot handle all of the
children in the home.” As for the home environment, the caseworker observed it
was “not ideal, but it is in a better state than it was when this case began.”
Despite some remaining concerns, A.U. began a trial home placement in
mid-July. The mother gave birth to J.U. about one week later. An August report
to the court noted the mother “has been doing very well. . . . [She] seems to be
handling the stress of having 5 children in the home fairly well.” In summary, the
report stated the parents
have made a lot of progress in this case. They are doing a better job of parenting their children and, as far as this worker can tell, have been providing them with [age-appropriate] supervision. This worker feels that the parents have made substantial enough progress that it is now safe to return custody of [A.U.] So long as they continue to provide age-appropriate supervision to the children, maintain the cleanliness of the home and are able to provide for the needs of the children, [the parents] should have no trouble maintaining custody.
Unfortunately, the parents had trouble meeting those expectations, even
with the continued assistance of the department. Custody of A.U. was returned to
the parents in August 2020, and services continued into 2021. But by May, the
condition of the home had deteriorated, as had the parents’ care of the children. 6
Once again, the second oldest child reported the mother hit him with a cell phone
charger cord. He also said that she cut him with a piece of glass. The mother said
the child was lying, but the child protective worker saw that he had marks
consistent with the abuse he reported. Several more reports were made in June,
one of which alleged the home had “feces on the floor, old food lying around, flies
in the home, food stuck to the walls, and floors that are sticky.” A second report
alleged the mother would lock the children out of the home after their father went
to work. This report was made when the three oldest children were found walking
on the highway. The mother was hostile and belligerent to the workers
investigating the reports, with one noting she was “definitely tired of cooperating
with” the department.
These reports resulted in a child-in-need-of-assistance case for J.U. at the
end of June. She and A.U. were removed from the parents’ custody, although they
were then allowed to remain in the home under a trial home placement. The oldest
three were placed with a friend from the family’s church. The trial home placement
for the two youngest children “did not go well,” according to the department’s
caseworker. The placement ended less than a month after it started when the
mother left an opened bottle of floor cleaner within reach of J.U. A worker who
happened to be present took it from J.U. so that she would not drink it. The mother
then put it back in the same spot again. She also told the worker that she was
planning to put mouse poison in places that would be accessible to the children.
The parents did not respond well to services after this removal. The mother
was often distracted during visits, sometimes falling asleep, showering, or playing
on her phone rather than interacting with the children. She consistently reported 7
being tired during the two-hour visits and readily agreed to shorten them by a half
hour. The father participated in only a few visits after the children were removed,
stopping them altogether in September and then leaving for Africa in November.
The condition of the home remained a concern, so much so that the mother moved
out of the trailer and into an apartment. But the cleanliness of her apartment soon
declined, with workers often observing spilled food and puddles of water on the
floor, and dirty dishes in the sink. At the permanency hearing for A.U. and J.U. in
January 2022, the department recommended termination.1
The State filed termination petitions and, following a hearing, the juvenile
court entered an order terminating both parents’ rights to A.U. and J.U. under Iowa
Code section 232.116(1)(h) (2022). The parents appeal.
II. Analysis
We apply a three-step analysis in conducting our de novo review of
terminations of parental rights, asking whether (1) a statutory ground for
termination is satisfied, (2) the children’s best interests are served by termination,
and (3) a statutory exception applies and should be exercised to preclude
termination. See In re L.B., 970 N.W.2d 311, 313 (Iowa 2022) (noting that in
conducting our de novo review, we “give weight to the [court’s] factual findings but
are not bound by them”); see also Iowa Code § 232.116(1)–(3). If all three steps
support termination, we consider any ancillary issues raised by the parents, such
1 The State did not recommend termination for the three oldest children because they hadn’t been removed from their parents’ care for long enough. They were instead continued in their foster care placement. 8
as whether additional time should be granted. See Iowa Code § 232.117(5); see
also id. § 232.104(2)(b).
A. Grounds for Termination
The parents both argue the State failed to prove the final element of Iowa
Code section 232.116(1)(h)—that the children could not be returned to their care
at the time of the termination hearing. See Iowa Code § 232.116(1)(h)(4) (requiring
“clear and convincing evidence that the child cannot be returned to the custody of
the child’s parents . . . at the present time”); In re D.W., 791 N.W.2d 703, 707 (Iowa
2010) (interpreting the statutory language “at the present time” to mean “at the time
of the termination hearing”).
Starting with the father, he focuses on a report that criticized him for not
getting down on the floor to play with the children. The father argues that while
“he will not be nurturing in the manner of an American parent,” he will ensure the
children’s “housing is appropriate, and they are not subjected to physical
punishment while in his care.” The problem is that the father did not meet even
his own minimal expectations in the years the case was open. Although he worked
fairly consistently, the father sent much of his income to family in Africa. The father
did make some needed repairs to the home early on in the case, but then he
allowed it to fall into disrepair again. And he did not intervene in the mother’s
discipline of the children, the oldest of whom reported that she hit them on multiple
occasions with cell phone charger cords.
The father was largely absent from the children’s lives. He made at least
two trips to Africa while the case was open, the most recent after the children were
placed into foster care at the end of June 2021. The father had only a few visits 9
with the children between their removal and his trip to Africa in November. When
he returned in January 2022, the father’s visits continued to be sporadic. He had
just four in February. And at each of those visits, he was present for thirty minutes
or less. See In re A.B., 957 N.W.2d 280, 299-300 (Iowa 2021) (affirming
termination of father’s parental rights under section 232.116(1)(h) where he only
participated in visitation sporadically and a caseworker testified that he could not
be a primary caretaker due to his ambivalence). Despite multiple opportunities to
care for the children, the father failed to show that he had the desire to do so. We
accordingly find the State proved termination of the father’s parental rights under
section 232.116(1)(h).
Turning to the mother, she argues the family support specialist identified
four concerns with the family that drove the termination recommendation: (1)
providing a safe environment; (2) food safety; (3) proper supervision; and (4) lack
of active parenting. The mother contends she remedied each of these concerns.
But the record does not support this contention. Although the mother abandoned
the uninhabitable trailer for an apartment, her landlord reported there were “bug
problems in the complex and a foul odor coming from” the mother’s apartment. As
for food safety, the family support specialist testified the mother “tried to feed the
children food that has either been left out all day or has not been properly
refrigerated.” The mother denied this, but the juvenile court did not find her
testimony to be credible. See id. at 293 (deferring to the court’s credibility
determinations).
The mother also minimizes the supervision concerns noted by the
department, suggesting they were limited to leaving hand sanitizer, candles, and 10
a butcher knife within reach of the children. Those concerns were only part of the
story though. The family support specialist testified that during the visits, the
mother “often spends her time in the kitchen as well as the bathroom or the side
room” and leaves the children unsupervised in the living room. The mother’s
inattention to the children has been a persistent aspect of her parenting and led to
multiple founded child abuse reports. See In re L.L., 459 N.W.2d 489, 494 (Iowa
1990) (noting a “parent’s past performance . . . may indicate the quality of care the
parent is capable of providing in the future”).
More concerning is the mother’s physical abuse of the children—an issue
she largely ignores on appeal. The children consistently reported their mother
would hit them with cell phone charger cords when she was angry. The second
oldest child had marks on his wrist and back consistent with being struck with a
cord. The mother denied hitting the children, testifying that her second oldest child
“wasn’t telling the truth.” See In re H.R.K., 433 N.W.2d 46, 50 (Iowa Ct. App. 1998)
(noting “the requirement that the parents acknowledge and recognize the abuse
before any meaningful change can occur is essential in meeting the child’s
needs”). Overall, we agree with the juvenile court that the mother “lacks insight
into the reality of her parenting deficits,” which impacts her ability to safely care for
these young children. See In re A.M., 843 N.W.2d 100, 111–12 (Iowa 2014)
(finding termination appropriate under section 232.116(1)(h) where the parents
could not internalize the necessary skills to keep their child safe “without the
hovering supervision of [department] workers”).
While this case may be “infused with cultural differences,” as the mother
contends on appeal, those cultural differences did not lead to the juvenile court’s 11
finding that the children could not safely be returned to their parents’ care. Unlike
In re F.C., No. 13-0971, 2013 WL 5758058, at *4 (Iowa Ct. App. Oct. 23, 2013),
which the mother cites in support of this claim, the record does not show that
“language barriers and cultural differences . . . resulted in the mother not always
understanding what the case worker expected.” Translation services were used
throughout the proceedings, not just in court but at some visits, family team
meetings, and medical appointments. Despite the extra efforts undertaken by the
department, and the years of services provided to the family, the mother has made
only minimal improvements. We find clear and convincing evidence supporting
the termination of the mother’s parental rights under section 232.116(1)(h).
B. Best Interests
The parents next claim that termination of their parental rights is not in the
children’s best interests. In examining this issue, 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).
The mother contends termination of her parental rights is not in the
children’s best interests because “sibling separation is likely, and the children will
be removed from their cultural heritage.” While both of these factors are
considered in the analysis, see In re T.J.O., 527 N.W.2d 417, 421 (Iowa Ct. App.
1994); In re L.L., 459 N.W.2d 489, 496–97 (Iowa 1990), the defining elements of
a child’s best interests are safety and need for a permanent home. See In re H.S.,
805 N.W.2d 737, 748 (Iowa 2011). 12
As discussed above, the parents were simply unable to provide for the
children’s safety or their physical, mental, and emotional condition. Though the
youngest two children are separated from their siblings, they were thriving in their
foster home, according to the department caseworker. See Iowa Code
§ 232.116(2)(b) (considering integration of a child into a foster family). Given the
risks presented for the children in their parents’ home, we cannot say the factors
cited by the mother outweigh the other factors in favor of termination. See L.L.,
459 N.W.2d at 497 (concluding a child’s loss of cultural identity did not “outweigh
all the other factors we must consider on the question of termination”); see also In
re W.A., No. 16-1774, 2017 WL 104975, at *3 (Iowa Ct. App. Jan. 11, 2017) (“We
cannot place the importance of the sibling bond over the individual safety and well-
being of each of the children.”).
C. Statutory Exception
As is often the case, both parents also mention their bond with the children
as part of their best-interest argument. From this, we infer the parents are asking
that we apply the permissive exception to termination in Iowa Code section
232.116(3)(c), which authorizes the court to forgo termination when it “would be
detrimental to the child[ren] . . . due to the closeness of the parent-child
relationship.” See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014) (noting application
of an exception to termination in section 232.116(3) is “permissive, not
mandatory”). Neither parent met their burden to establish that exception applies
here. See In re A.S., 906 N.W.2d 467, 476 (Iowa 2018). The providers involved
with the family testified that while the children had somewhat of a bond with their 13
parents, it was not a strong one. As a result, we conclude this exception to
termination does not apply.
D. Additional Time
At the end of his best-interest argument, the father asks us to exercise our
discretion in allowing him additional time, and to direct the Department to provide a culturally and linguistically fluent visitation supervisor, and allow visitation to progress despite the lack of a traditional American parenting style, so that he might demonstrate that he is able to safely and effectively raise his children.
We deny these requests.
By the time of the termination hearing, the parents had been participating in
services for close to three years with no meaningful progress. See Iowa Code §
232.104(2)(b) (stating a six-month extension is appropriate if the parent can
establish that “the need for removal . . . will no longer exist at the end of the
additional six-month period”); accord In re W.T., 967 N.W.2d 315, 232 (Iowa 2021).
So we cannot agree that giving the father more time, particularly when he
squandered much of the time he was given, would lead to a different result.
As for the father’s request for “a culturally and linguistically fluent visitation
supervisor,” complaints about services are properly raised “at 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). Because the father did not raise this request at the
proper time, the issue is waived. See In re L.M., 904 N.W.2d 835, 840 (Iowa 2017).
AFFIRMED ON BOTH APPEALS.