In the Interest of B.U. and A.U., Minor Children

• Court: Court of Appeals of Iowa
• Decided: July 3, 2024
• Docket: 24-0504
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0504 Filed July 3, 2024

IN THE INTEREST OF B.U. and A.U., Minor Children,

A.U., Mother, Appellant,

B.U., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Christine Dalton,

Judge.

Parents separately appeal the termination of parental rights to two children.

AFFIRMED ON BOTH APPEALS.

Patricia Rolfstad, Davenport, for appellant mother.

Paige E. Hillyer, Davenport, for appellant father.

Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney

General, for appellee State.

G. Brian Weiler, Davenport, attorney and guardian ad litem for minor

children.

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

BULLER, Judge.

The mother and father separately appeal termination of their parental rights

to a male child, B.U. (born 2015), and a female child, A.U. (born 2016). After

considering the arguments put forward by the parents on appeal, we affirm the

termination of both parents’ rights.

Background Facts and Proceedings.1

This family came to the attention of the Iowa Department of Health and

Human Service (HHS) in early 2022 on reports of physical abuse inflicted on the

children and substance abuse inside the home. These claims mirrored reports

from another state, where the family lived before 2020. The juvenile court ordered

an emergency removal after B.U. went to school with visible injuries and reported

his dad had “smacked” and “bit” him; a medical examination confirmed the report

and concluded the injuries were inflicted by another person. The court found the

father had hit, struck, and bit the male child, and the mother had either participated

in the physical abuse or at minimum lied to cover it up.

At removal, both children were malnourished and severely underweight,

and they reported the parents withheld food from them. B.U. had a 0% body mass

index when removed, meaning he was in the bottom percentile for weight for his

age, and A.U. was in the second percentile. Both children also suffered a variety

of health issues reflecting significant deficits in dental and medical care.

1 Given the limited scope of claims properly presented, we focus our discussion of

the facts on the physical and sexual abuse perpetrated against these children by the parents. But we note the case files contain additional information supporting other concerns, including the parents’ history of abusing controlled substances, their minimally treated mental-health diagnoses, and domestic violence. 3

A therapist diagnosed the children with trauma-related mental-health

conditions. They were initially hesitant to discuss the past abuse with the therapist

or others. While the children were still required to attend visits with the parents,

A.U. would not share any negative information about the parents. But after visits

were suspended, she eventually shared that she was sexually abused by both

parents and observed her parents sexually abusing her brother. After disclosing

the abuse, she told her therapist and others she did not want to see her parents.

The therapist supported the child’s wish and opined that contact with the parents

was not in the child’s therapeutic interest. In short, the therapist concluded “when

we have a child who has trauma and the parent is causing the trauma, it’s like re-

traumatizing [the child] every time they have a visit.”

The therapist treated B.U. until he was placed in a psychiatric medical

institute for children (PMIC) following worsening behavioral problems. B.U. also

disclosed physical and sexual abuse perpetrated against him by the father. B.U.

also said he told his father to stop sexually abusing him “and he wouldn’t.” Instead,

B.U. reported he sometimes was given toys after his father touched him under his

pants. Like his sister, B.U. reported he did not want to see the parents, and the

therapist supported that wish for therapeutic reasons.

Based on the therapist and guardian ad litem (GAL)’s recommendations, as

well as HHS’s concerns, visits between the parents and children were suspended

and had not resumed as of trial. The court order suspending visits made specific

fact-findings that continuing visits would harm the children emotionally and cause

any progress they had made in processing their trauma to regress. 4

Over the life of the case, the mother engaged in some mental-health

services, but the father did not. The mother briefly acknowledged then recanted

that physical abuse occurred in the home; but she refused to recognize the children

were sexually abused or malnourished. As of trial, the parents lived in a “very

small, very cluttered” one-bedroom apartment that was not suitable to care for a

single child or both children.

Both children had ups and downs while in foster care. As of trial, A.U. was

in a pre-adoptive foster home where she participated in various extracurricular

activities. As the children’s GAL put it, A.U. “seem[ed] to have unbounded

enthusiasm toward[ ] life in her foster home.” B.U. remained at PMIC, where he

was working on problems with aggression but was bonded and had a good

relationship with staff members. In the GAL’s words, he “is trying so hard to be

good, to understand why he has his outbursts, and to practice the coping methods

he is being taught.” An HHS worker testified neither child asked about their parents

and that both should be “allowed to put this chapter of their lives behind them and

move forward.” As far as their physical health, both children’s weight significantly

improved once out of the parents’ care.

The county attorney, HHS, and the children’s GAL2 all recommended

termination of both parents’ rights. In its ruling, the juvenile court rejected the

parents’ assertions that the children had been coached or that their statements

about sexual abuse were contaminated by HHS or the therapist. The court

terminated both parents’ rights under Iowa Code section 232.116(1)(d), (f), and (i)

2 We appreciate the GAL’s detailed written reports, which add important context to

our review and ensure the children’s voices are heard in these proceedings. 5

(2023). The parents separately appeal, and we review their claims de novo. See

In re W.M., 957 N.W.2d 305, 312 (Iowa 2021).

Statutory Elements. The mother challenges the evidence supporting

termination under section 232.116(1)(d), (f), and (i). The State contests whether

this error is properly before us due to error-preservation or waiver concerns. In

our review, we note the mother’s closing argument conceded “there are several

grounds for termination that the State has proven given the lack of contact she has

had with the children.” Her argument only asked the juvenile court to consider

other permanency options under section 232.104(2)(d) or grant her more time. We

find any challenge to the statutory elements waived by the mother’s concession

that “several grounds for termination had been proven.” See In re E.W.,

No. 22-0604, 2022 WL 2824733, at *1 (Iowa Ct. App. July 20, 2022) (“Although it

may be framed as a failure to preserve error, the failure to contest termination may

also be properly deemed waiver of the challenge.”); In re M.L.H., No. 16-1216,

2016 WL 4803999, at *1 (Iowa Ct. App. Sept. 14, 2016) (“Although our prior cases

have framed the issue as one of error preservation, it may be more accurate to

deem the father’s failure to contest termination in the juvenile court as waiver.”).

But even if the claim was properly before us, we would affirm. “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.” In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). Here, the record evidence

abundantly supports termination under section 232.116(1)(i) based on the reported

neglect, physical abuse, and sexual abuse and the parents’ abject failure to

address the issues in any meaningful way. The mother does not dispute that the 6

children were adjudicated in need of assistance based on neglect, physical abuse,

and sexual abuse due to her acts or omissions, or that the abuse constituted

imminent danger. See Iowa Code § 232.116(1)(i)(1)–(2). We are not at all

persuaded by the mother’s contention the State did not prove services could not

correct the conditions leading to the abuse or neglect, given the mother’s failure to

acknowledge the abuse or take any relevant action to protect the children and her

continued relationship with an abusive partner. See id. § 232.116(1)(i)(3). To the

contrary, we think this passage from the GAL’s report sums things up well:

The parents have a concerning history with child services in at least one other state that goes back to when the children were toddlers. They have had ample opportunity to look in the mirror and recognize their parenting issues to some meaningful degree. Instead, they have denied, minimized, explained, stonewalled, and argued with every concern. With the sole exception of a two-day awakening by the mother . . . , when she briefly started admitting to real problems and talked about changing the situation before backtracking, the parents have done nothing of consequence to remedy the concerns and start the work of getting their children back. There is a zero-percent chance that the children can be safely returned to the parents. Termination of parental rights is necessary to protect these children from further harm.

As the supreme court has observed, “It’s folly to think the mother will stand sentinel

to protect against a foe she doesn’t acknowledge exists.” In re D.D., 955

N.W.2d 186, 193 (Iowa 2021). This mother has no protective capacity to guard

against abuse she refuses to acknowledge, and there is no reason to think services

can correct this deficit.

Best Interests. The mother also challenges whether termination is in the

best interests of the children. On review, we give primary weight “to the child[ren]’s

safety, to the best placement for furthering the long-term nurturing and growth of

the child[ren], and to the physical, mental, and emotional condition and needs of 7

the child[ren].” Iowa Code § 232.116(2). We agree with the juvenile court that

termination is in the best interests of the children in light of the mother’s refusal to

acknowledge the physical- or sexual-abuse concerns that arose over the life of the

case. She offers no safety, nurturing, or prioritization of the children’s physical,

mental, or emotional needs. Removal and the efforts of the current placements

“ha[ve] actually improved the children’s mental health and stability.” The stability

and safety afforded by the children’s current and future placements far outweighs

any benefit from continuing the parent–child relationship.

Permissive Exception. The father urges that his bond with the children

supports a permissive exception to thwart termination. But the father never urged

this exception below and the juvenile court never ruled on it, rendering his

challenge unpreserved. See Meier v. Senecaut, 641 N.W.2d 532, 537

(Iowa 2002). But we note that, even if error had been preserved, there is no

evidence of a positive bond between the father and either child, and certainly not

a bond that would convince us by clear and convincing evidence we should invoke

that permissive exception on this record. See Iowa Code § 232.116(3)(c); In re

M.W., 876 N.W.2d 212, 225 (Iowa 2016) (noting we consider the bond in the

context of a case’s unique circumstances and the child’s best interests).

To the extent the mother’s petition veers into claims about the separation of

siblings, we note sibling bonds are not an enumerated exception to termination

and are separately protected by statute. Iowa Code §§ 232.116(3) (exceptions to

termination), .108(6) (providing for facilitation of sibling contact following

termination of parental rights). 8

Reasonable Efforts. The mother makes scattered complaints in her

petition on appeal about HHS’s efforts toward reunification, with a focus on in-

person visits with the children. It is unclear, but the father perhaps makes some

version of the same challenge. Assuming without deciding the briefing was

enough to invoke appellate review, we discern no basis for relief. “[T]he nature

and extent of visitation is always controlled by the best interests of the child[ren].”

In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App. 1996). We have explained that,

“if services aimed to remove the risk responsible for limited visitation have not met

their objective, then increased visitation would not be in the children’s best

interests.” In re J.C., No. 23-0729, 2023 WL 5605337, at *2 (Iowa Ct. App.

Aug. 30, 2023). That was the case here, where the parents took little or no action

to remedy the adjudicatory harms that led to the children’s removal and the

suspension of in-person visits. We also credit reports from the children’s GAL

about the parents’ inappropriate behavior during visits, including coaching the

children to fear HHS or misbehave in their foster homes, which similarly weighed

against resuming visitation. Significant evidence in the record shows that, even

while HHS worked diligently to facilitate visits, the mother turned them down due

to her own schedule despite HHS efforts to accommodate her. For example, the

mother claimed she had only three days available to see the children one month,

and zero days another. There is no reason to think additional efforts in this area

by HHS would have affected the trajectory of this case.