In the Interest of A.W., Minor Child

• Court: Court of Appeals of Iowa
• Decided: September 27, 2023
• Docket: 23-1125
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1125 Filed September 27, 2023

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

B.M., Father, Appellant,

J.W., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Scott Strait,

District Associate Judge.

A mother and father separately appeal the termination of their respective

parental rights. AFFIRMED ON BOTH APPEALS.

Roberta J. Megel, Council Bluffs, for appellant father.

Norman L. Springer, Jr. of McGinn, Springer & Noethe, P.L.C., Council

Bluffs, for appellant mother.

Brenna Bird, Attorney General, and Lisa Jeanes, Assistant Attorney

General, for appellee State.

Mandy L. Whiddon, Omaha, Nebraska, attorney and guardian ad litem for

minor child.

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

AHLERS, Judge.

The juvenile court terminated the parental rights of one-year-old1 A.W.’s

mother and her legal father.2 Both parents separately appeal. The mother argues

the juvenile court should have applied the higher burden required by the Indian

Child Welfare Act (ICWA) and challenges two of the three statutory grounds

authorizing termination. The father challenges the statutory grounds authorizing

termination, including whether the State made reasonable efforts toward

reunification; challenges whether termination is in the child’s best interests; and

argues his bond with the child should preclude termination.3

We first address the mother’s contention that the juvenile court should have

found ICWA, see Iowa Code chapter 232B (2023), applied to this case and applied

the beyond-a-reasonable-doubt standard required by 25 U.S.C. section 1912(f).

The mother’s argument fails. ICWA does not apply to this case because the child

does not meet the definition of an “Indian child.” See In re Z.K., 973 N.W.2d 27,

28 (Iowa 2022); In re J.C., No. 23-0078, 2023 WL 2673138, at *1 (Iowa Ct. App.

Mar. 29, 2023). That definition “means any unmarried person who is under age

eighteen and is either (a) a member of an Indian Tribe or (b) is eligible for

membership in an Indian Tribe and is the biological child of a member of an Indian

1 The child turned one year old in the time between the termination hearing and

issuance of the termination order. 2 The juvenile court also terminated the parental rights of any biological father of

the child. 3 The father makes a passing reference to wanting additional time to work toward

reunification but does not provide any supporting argument. We consider that request waived. See In re E.W., No. 22-0647, 2022 WL 2347196, at *2 (Iowa Ct. App. June 29, 2022) (finding an issue waived when the parent failed to develop a supporting argument). 3

Tribe[.]” Z.K., 973 N.W.2d at 32 (alteration in original) (quoting 25 U.S.C.

§ 1903(4)). While the mother is a member of The Winnebago Tribe of Nebraska,

an enrollment inquiry to the tribe resulted in the tribe declaring that the child is not

an enrolled member and is not eligible for enrollment. As the child does not satisfy

either of the requirements to meet the definition of an Indian child, ICWA does not

apply to this case.

Moving on to the merits of this case, we conduct de novo review of orders

terminating parental rights. Id. Our review follows a three-step process that

involves determining if a statutory ground for termination has been established,

whether termination is in the child’s best interests, and whether any permissive

exceptions should be applied to preclude termination. In re A.B., 957 N.W.2d 280,

294 (Iowa 2021). If a parent does not challenge any of the three steps, we need

not address it on appeal. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).

As to the mother’s challenge to the statutory grounds for termination, she

only challenges two of the three grounds relied upon by the juvenile court.4 So we

affirm on the unchallenged ground, section 232.116(1)(l). See In re L.J., No. 21-

0507, 2021 WL 4891064, at *1 (Iowa Ct. App. Oct. 20, 2021) (“The father only

challenges the evidence supporting the first two grounds. Accordingly, we may

affirm on the unchallenged ground.”). As the mother raises no additional

challenges to the termination of her parental rights, we end our analysis with

respect to her appeal and turn our attention to the father.

4 The juvenile court terminated the mother’s parental rights under Iowa Code section 232.116(1)(e), (h), and (l). 4

The juvenile court terminated the father’s parental rights to the child under

section 232.116(1)(b), (e), and (h). As the father’s rights were terminated on

multiple grounds, we affirm if any one of the grounds is supported by the record.

See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012) (“When the juvenile court

terminates parental rights on more than one statutory ground, we may affirm the

juvenile court’s order on any ground we find supported by the record.”). We choose

to focus on paragraph (h), which permits termination upon clear and convincing

proof that (1) the child is three years of age or younger; (2) the child has been

adjudicated a child in need of assistance; (3) the child has been removed from the

physical custody of the parents for at least six of the last twelve months; and (4) the

child cannot be returned to the custody of the parent. Iowa Code § 232.116(1)(h).

The father only attempts to challenge the fourth element. He “contends the

child could eventually be returned to his care.” (Emphasis added.) But when

determining whether the fourth element is met, we consider whether the child could

be returned to the custody of the parent at the time of the termination hearing, not

some indeterminate time in the future. See Iowa Code § 232.116(1)(h)(4) (“There

is clear and convincing evidence that the child cannot be returned to the custody

of the child’s parents as provided in section 232.102 at the present time.”); In re

A.M., 843 N.W.2d 100, 112 (Iowa 2014) (holding that “at the present time” means

at the time of the termination hearing).

Besides the father’s admission that the child could not be placed in his

custody at the time of the termination hearing, our independent review of the record

confirms that the child could not be returned to the father’s custody at the time of

the termination hearing. During the roughly twelve-month period between initial 5

removal5 and the termination hearing, the father has been largely uninvolved with

the child. The father was incarcerated when the child was born and the underlying

child-in-need-of-assistance case began. The father was released from prison into

a residential correctional facility about one month after the child’s birth. He saw

the child one time in the month following his release from prison. After that one

visit, the father did not respond to efforts to establish visitation for approximately

the next nine months. He only began visits with the child about one month before

the termination hearing. This leaves us to question if he has the fundamental tools

and interest necessary to care for the child. Furthering our concern, at the time of

the termination hearing, the father was temporarily living at a hotel with the

mother—suggesting he currently lacks a baseline of stability. Additionally, there

are concerns about the mother’s sister using methamphetamine at the hotel where

the mother and father reside. While it was contested whether the sister lived at

the hotel with the parents, at the very least, the evidence shows that the sister

frequents the hotel often enough to cause concern to the father’s parole officer.

Finally, the fact that the father chooses to continue to reside with the mother with

her unresolved substance-abuse issues6 contributes to our conclusion that the

child cannot be safely placed in the father’s custody at this time.

5 The child was removed on the day of the child’s birth when drug screens revealed

both the mother and child were positive for amphetamines. 6 The mother no-showed twelve of the sixteen times that she was directed to drug

test and refused to test two additional times. See In re R.A., No. 21-0746, 2021 WL 4891011, at *1 (Iowa Ct. App. Oct. 20, 2021) (collecting cases noting missed tests are presumed positive for illegal substances). When she has tested, she tested positive for illegal drugs. She has also failed to follow through with recommended substance-abuse treatment. 6

In the face of the evidence supporting the conclusion that the child cannot

be returned to his custody, the father contends reunification is not possible

because the State failed to make reasonable efforts towards reunification. While

not a strict substantive requirement for termination, “[t]he State must show

reasonable efforts [toward reunification] as part of its ultimate proof that the child

cannot be safely returned to the [custody] of a parent.” In re L.T., 924 N.W.2d 521,

527 (Iowa 2019) (first alteration in original) (citation omitted). However, 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) (collecting cases). 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. The

father never alerted the court to any purported deficiency in services, so his

reasonable-efforts challenge is waived. We ultimately conclude a statutory ground

authorizing termination is satisfied.

Next, we turn to the father’s claim that termination is not in the child’s best

interests. When making a best-interest determination, 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.” P.L., 778 N.W.2d at 40 (quoting Iowa Code

§ 232.116(2)). The child is bonded to her foster family, and the family is willing to

serve as a permanent placement for the child. Further, in his testimony at the 7

termination hearing, the father conceded that his absence from the child’s life

would not be harmful to her. We conclude termination serves the child’s best

interests because it gives her the best chance to reach permanency and stability.

Finally, the father points to his purported bond with the child to argue against

termination. This implicates section 232.116(3)(c), which permits the court to forgo

termination when termination would be detrimental to the child due to the strength

of the parent-child bond. It is the parent’s burden to establish this exception to

termination. See In re A.S., 906 N.W.2d 467, 475–76 (Iowa 2018). It is not enough

to establish the existence of a bond; instead, the parent must prove the bond is so

significant that severing it would be detrimental to the child. See In re A.B., 956

N.W.2d 162, 169 (Iowa 2021). The father has not established such a bond. As

previously noted, the father conceded the child would not be harmed by his

absence from her life. We do not apply this permissive exception to termination.

AFFIRMED ON BOTH APPEALS.