IN THE COURT OF APPEALS OF IOWA
No. 21-1248 Filed February 16, 2022
IN THE INTEREST OF C.S., Minor Child,
E.L., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Mitchell County, Karen Kaufman
Salic, District Associate Judge.
A mother appeals the termination of her parental rights to her child.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Danielle M. Ellingson of Eggert, Erb, & Ellingson, P.L.C., Charles City, for
appellant mother.
Thomas J. Miller, Attorney General and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Cynthia Schuknecht, Charles City, attorney and guardian ad litem for minor
child.
Considered by May, P.J., Schumacher and Badding, JJ. 2
BADDING, Judge.
Many appeals that we see in cases terminating parental rights involve
young children who have not yet formed a close bond with a parent or whose
parent is absent for an extended period of time. This appeal involves the
converse—a seventeen-year-old child whose mother has been largely present in
his life. Following termination of her parental rights under Iowa Code
section 232.116(1)(f) (2021),1 the mother appeals. In no particular order, she
claims termination is contrary to the child’s best interests, statutory exceptions
should be applied to preclude termination, and permanency should be
accomplished through either the establishment of a guardianship with the maternal
grandmother or another planned permanent living arrangement.
I. Background Facts and Proceedings
In April 2018, when C.S. was thirteen years old, a report was made to the
Iowa Department of Human Services that his parents were using
methamphetamine. There were also concerns about lack of electricity and running
water in the home. The department asked the parents to provide drug screens.
The father did so and tested positive for methamphetamine. The mother refused
a hair-stat test, and she never returned her sweat patch for processing. She said
that she would test positive for methamphetamine but explained the positive result
would be due to her medication for attention deficit hyperactivity disorder. In
October, because of continuing concerns about the parents’ drug use, C.S. and
1The mother’s petition on appeal states her rights were terminated under section 232.116(1)(e) and (f). The termination order only referenced section 232.116(1)(f) as to the mother. The father’s rights were terminated under both paragraphs, and he does not appeal. 3
his older brother2 were adjudicated as children in need of assistance under Iowa
Code section 232.2(6)(n) (2018). They were allowed to remain in their parents’
custody with placement in their mother’s home under the department’s
supervision.
But in early November, the mother tested positive for methamphetamine. It
was also discovered that a man with a long criminal history was residing in the
home.3 The children were removed from the mother’s home and placed in foster
care with a couple who had cared from them in the past. After the removal, the
mother continued to test positive for methamphetamine. And she continued to
deny drug use, blaming her positive tests on prescription medication despite
evidence to the contrary. As the juvenile court noted in its March 2019 dispositional
review order, “The sole bright spot is that she has attended visits regularly.”
There were other bright spots as the case progressed. The mother had
some negative drug screens in the months that followed and completed a
psychological evaluation. Following the department’s advice, she moved into her
mother’s home in Minnesota so that she was closer to family support. Once there,
the mother completed substance-abuse treatment and obtained employment. By
October, a parent Interstate Compact on the Placement of Children (ICPC) home
study had begun for the home. Because the study was not completed by the time
of the permanency hearing, the department recommended a six-month extension
to continue reunification efforts. The juvenile court followed that recommendation.
2 The brother reached the age of majority in late 2020 and is not a subject of this appeal. 3 By then, the parents had separated, and the father had moved to Minnesota. 4
In early 2020, the Minnesota Department of Human Services approved the
mother’s home in Minnesota with the maternal grandmother for placement of the
child. The home study report shows the mother significantly downplayed her
history of substance abuse to the evaluator, which was noted as a concern. To
alleviate the concern, the evaluator requested an immediate drug screen. The
mother missed that drug screen, but she did submit to two drug screens in the
following weeks, which were negative for all substances tested for.
By February 2020, the mother was exercising weekend visits with the
children in Minnesota. Both children wanted to move to Minnesota with her. In its
March report to the court, while acknowledging the concerns noted in the ICPC
home study, the department recommended the children move to Minnesota to live
with the mother under the supervision of local service providers with a review
hearing to be held ninety days after the move. This time, the juvenile court did not
follow the department’s recommendation, highlighting the mother’s “defiance and
lack of honesty,” her “inability to get the boys home on time from visits,” her failure
to engage in mental-health treatment, and C.S.’s deteriorating mental health. The
court ordered removal to continue.
Come mid-March, when the COVID-19 pandemic was still in its early
stages, the mother was allegedly exposed to the virus while the children were in
Minnesota for a weekend visit. The foster mother was concerned about them
returning to her home since she operated a daycare. So the department
recommended that the children remain with the mother in Minnesota to quarantine.
After the quarantine time had passed, the mother tried to keep the children with
her in Minnesota. This prompted the guardian ad litem to request a court order for 5
immediate return of the children to Iowa, which was entered the same day. When
the mother failed to comply, the juvenile court entered a pickup and transport order
and scheduled a contempt hearing for the mother. She finally returned the children
to their foster home on April 10.
A permanency-review hearing was held at the end of April. While the
department had continuing concerns about the mother’s recent behavior, the case
manager verified that the mother set up services for herself and the children in
Minnesota. The department’s report to the court noted that “[w]hile the past 2
weeks have not been positive and been very challenging for all involved, the
Department recognizes that the boys had been adjusting to the new environment
and were not considered unsafe.” The department again recommended that they
be placed with the mother in Minnesota under strict supervision there.
Once more, the juvenile court disagreed, its dissatisfaction with the mother
abundantly clear. In its order, the court stated its belief that the mother fabricated
her exposure to COVID-19 to circumvent its prior order that the children remain
out of her custody. The court found her in contempt and imposed a brief term of
incarceration. Given its “inability to trust that Mother will act in the best interest of
these children or consistently meet their needs,” the court concluded they could
not be returned to her. The court changed the permanency goal from reunification
to another planned permanent living arrangement in foster care.4
4 The mother filed an application for interlocutory appeal following this permanency-review order. Her application was denied by the supreme court. She also filed a petition for writ of certiorari concerning the finding of contempt, which was likewise denied. 6
In June, in-person visits were reinitiated, which went well. By August, the
mother had continued her mental-health treatment and maintained her
employment. The ICPC home study had expired, but the department
recommended a second one be completed to re-explore placement of the children
with the mother in Minnesota. Perhaps sensing the juvenile court was not willing
to return the children to her, the mother proposed a guardianship with the maternal
grandmother. The department was not opposed to this request if the home study
was approved. That approval came in mid-October, with the home study noting
no concerns for the children living in the home of the mother and maternal
grandmother. The court, however, was concerned, stating that “it is imperative
that we have negative hair-stat testing from Mother before that option could be
approved.”
The mother complied with the requested hair-stat test in December and was
again positive for methamphetamine. She continued to deny use, blaming her
medication even though that theory had been debunked by the testing lab. The
department suspended all visitations that could not be supervised in Iowa. The
mother then became extremely hostile with service providers, bombarding them
with expletive-laced text messages. She started to resist services that had been
put in place for C.S. and undermined rules the foster family had instituted for him.
The department summarized the mother’s negative attitude in its March
2021 report as follows:
When angry or frustrated, it is impossible to talk with her. She curses, uses derogatory words, rambles, and makes threats. Unfortunately, those behaviors have occurred during visits with [C.S.] present. While they are just words, they have 7
the power to significantly damage or destroy any relationship that [C.S.] has with that professional.
Because of the mother’s “hostile, erratic, [and] unhealthy behavior,” the
department suggested “that all services to [her] end. Reunification is no longer the
goal.” Instead, the department recommended that C.S. remain in foster care with
continued services “to assist him with a successful transition to adulthood.”
The juvenile court went one step further and ordered the State to start
termination proceedings. While the court recognized that C.S. wanted to live with
his mother, it found “there is no reason to slowly drag out the adjudicatory harm
[she] imposes on him up to his 18th birthday like we did with [his older brother].” 5
The “only logical permanency goal to pursue,” according to the court, was
termination of parental rights.
Before filing the petition, the State filed a motion requesting guidance from
the court, stating its belief that—due to the child’s age, desires, and lack of
adoptability—termination would be contrary to his best interests. The court
directed the State to comply with its prior order. So the State filed a termination
petition in June.
Before the trial on the petition, the department’s case manager met with
C.S. and reported his position as follows:
[C.S.] was able to share that he feels “sad, angry and mad” when he thinks about his mom’s parental rights being terminated. Through further discussion, [C.S.] was able to be specific and share that he “feels mad at Mom for not doing the right thing for him.” This worker talked with [C.S.] about the negative and any positive feelings
5 The court noted that after C.S.’s older brother turned eighteen, he quickly violated the conditions that would have allowed him to stay in the foster home until he graduated from high school by using drugs. He ultimately ended up with the mother in Minnesota. 8
he might have if his parents’ rights were terminated. [C.S.] was able to recognize that he’d feel angry and very sad if he couldn’t see his mom anymore, or have any contact with her at all. He shared he has an “emotional” connection with her. He shared that he likes to have contact with his mom and that he plans to have contact with her when he turns 18 years old, in just over a year’s time. [C.S.] then verbalized to this worker that a “positive” to his parents’ rights being terminated would be “because I wouldn’t be getting the negative attitude from mom.” This worker asked [C.S.] to explain that further. [C.S.] verbalized to this worker that he thinks his mom “brings out the negative parts in him.” When this worker asked why he felt that way he shared, “because she says bad things about everybody; DHS workers, the judge, counselors, and my foster parents.” [C.S.] shared with this worker that he “feels like he has to agree with her because he’s afraid to upset her.”
Continuing in this same self-aware vein, C.S. stated that while he did not
want his mother’s rights terminated, he did not feel safe in her care because “she
jumps around all the time.” He did feel safe in his foster home and wanted to
remain there to finish high school. The foster parents, who have cared for the child
since late 2018, were willing to allow him to do so, though they were not open to
adoption or serving as the child’s guardians. Given all this, the department
recommended that, instead of termination, permanency for C.S. be achieved in a
planned permanent living arrangement with his foster parents. The guardian ad
litem concurred. The mother, who by then had moved back to Iowa but continued
to test positive for methamphetamine, again requested that a guardianship be
established with the maternal grandmother in Minnesota.
The juvenile court rejected all of these options in its termination ruling, in
which it found sufficient evidence to terminate the mother’s rights under Iowa Code
section 232.116(1)(f) (2021). While it acknowledged how close C.S. was to
adulthood and his desire to maintain a relationship with the mother, the court
determined termination was in his best interests because of the negative impacts 9
of that relationship. The court declined to apply any exceptions to termination and
ordered that the mother’s parental rights be terminated. This appeal followed.
II. Analysis
The mother raises various arguments on appeal that we will address as they
progressively arise through the statutory framework. That framework starts with a
three-step analysis to conduct our de novo review of the termination proceedings.
See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). The mother does not challenge
the first step of the analysis—whether the statutory ground for termination was
established. See id. So we skip that step and consider whether the best-interest
framework as laid out in section 232.116(2) supports termination. See id. If it
does, we then consider whether an exception should be applied to overcome
termination. See id.
A. Best Interests and Statutory Exceptions
Beginning with the best-interest question, 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). For a child who, like C.S., has been placed
in family foster care, this consideration may include “whether the child has become
integrated into the foster family to the extent that the child’s familial identity is with
the foster family, and whether the foster family is able and willing to permanently
integrate the child into the foster family.” Id. § 232.116(2)(b). But the defining
elements remain the “child’s safety and his or her need for a permanent home.” In
re H.S., 805 N.W.2d 737, 748 (Iowa 2011). 10
The dilemma we face is this: the mother cannot provide a safe environment
for C.S. because of her drug use. For the past three years, that safe environment
has been provided by C.S.’s foster family. But they are not open to adoption or
guardianship. See Iowa Code § 232.116(2)(b). So if we affirm the termination of
the mother’s parental rights with no adoptive parent waiting in the wings, C.S. will
become a “legal orphan.” See Richard L. Brown, Disinheriting the “Legal Orphan”:
Inheritance Rights of Children after Termination of Parental Rights, 70 Mo. L. Rev.
125, 126 (2005) (defining “legal orphan” as a child who has lost his or her parents
“through a termination of parental rights proceeding but who has not been
subsequently adopted by new parents”).
This possibility has been countenanced in past cases. See, e.g., In re S.O.,
483 N.W.2d 602, 604 (Iowa 1992) (stating the “difficulty in finding an adoptive
home for children with serious emotional problems” is not “a sufficient reason for
refusal to terminate”), superseded by statute as recognized in In re L.T., 924
N.W.2d 521 (Iowa 2019) (noting “before 1997, Iowa’s child welfare laws focused
on reuniting the family unit” but have since “shifted from reunification of the family
to the child’s best interests”); see also In re T.M., No. 02-1715, 2002 WL 31758366,
at *1 (Iowa Ct. App. Dec. 11, 2002); In re D.P., 465 N.W.2d 313, 315 (Iowa Ct.
App. 1990). But here it would be a reality. We do not believe that’s in C.S.’s best
interest considering his age, wishes, familial identity, and bond with his mother.
See, e.g., In re E.B., No. 15-1384, 2015 WL 5970443, at *6 (Iowa Ct. App. Oct. 14,
2015) (affirming permanency order that changed goal to another planned
permanent living arrangement considering the children’s ages, familial identity,
and continued bond with their mother and each other); In re T.S., No. 11-1406, 11
2012 WL 162923, at *2 (Iowa Ct. App. Jan. 19, 2012) (affirming another planned
permanent living arrangement in lieu of termination because of barriers to
adoption, “as well as the ongoing bond and relationship” between the child and her
father); In re B.M., No. 10-1762, 2011 WL 441829, at 3 (Iowa Ct. App. Feb. 9,
2011) (finding termination was not in children’s best interests given their “ages and
desires”).
C.S. is less than one year away from his eighteenth birthday. He has
expressed a clear desire to maintain a relationship with his mother, both now and
after he turns eighteen. Terminating the mother’s rights at the eleventh hour of
this child’s minority would do little to serve his best interests. All the professionals
involved in the case agree that C.S. and his mother share a strong bond. C.S.
also wanted to continue a relationship with his siblings and extended family. While
a psychological evaluation found that C.S. has borderline intellectual functioning,
he was mature enough to recognize that certain aspects of his relationship with his
mother were not healthy and that he would not be safe in her home. His plan, as
expressed to the department’s case manager, was to remain in his foster home,
“graduate high school and then go to culinary school.” Because of C.S.’s age and
goal to continue his relationship with his mother, the department felt that “services
should continue to assist with guiding [C.S.] in having such a relationship in a safe
and appropriate manner” while he continues in therapy.
Allowing C.S.’s relationship with his mother to continue with the guidance
of the department will better serve C.S.’s physical, mental, and emotional needs
than leaving him in a parentless void. We have recognized that children share
their “parents’ fundamental interests in familial association.” In re S.O., 967 12
N.W.2d 198, 206 (Iowa Ct. App. 2021). Studies have shown that even where
parents are inadequate or neglectful, children’s
relationships with their biological parents (and other relatives) remain important to children in foster care. Especially for children whose parents’ parental rights have been terminated, the connection with their biological parent remains central to their development and these children make efforts to maintain that connection.
Lashanda Taylor, Resurrecting Parents of Legal Orphans: Un-Terminating
Parental Rights, 17 Va. J. Soc. Pol’y & L. 318, 320–21 (2010); accord Marsha
Garrison, Why Terminate Parental Rights?, 35 Stan. L. Rev. 423, 461–66 (1983)
(discussing studies that together showed “continued parental visitation benefits
children in long term foster care”). Terminating the mother’s parental rights will not
erase her from C.S.’s mind and, in fact, may have the opposite effect. See
Garrison, 35 Stan. L. Rev. at 465 (“Without parental contact, the child will tend to
base his impressions of the lost parent solely on fantasy; some children may
therefore idealize their absent parents and dream about a future reunion,” which
“can impede the child’s ability to form realistic current relationships”).
And because C.S. will remain in foster care until he ages out, his “stability
and long-term interests will not be affected if the mother’s rights are not
terminated.” In re B.T., 894 N.W.2d 29, 34 (Iowa Ct. App. 2017) (finding
termination was not in a ten-year-old child’s best interest because a guardianship
with his grandmother would allow the child to maintain a relationship with his
mother). Indeed, C.S. may feel more stable if he retains that connection with his
mother in the safety net of the department. We recognize the effect the mother’s
negative behavior had on the professionals involved in this case and, at times, on 13
C.S.6 But our statute allows restrictions to be placed on her contact with C.S. See
Iowa Code § 232.104(5) (“Any permanency order may provide restrictions upon
the contact between the child and the child’s parent or parents, consistent with the
best interests of the child.”); see also In re M.M.M., No. 06-1768, 2007 WL 253987,
at *5 (Iowa Ct. App. Jan. 21, 2007) (finding entry of a permanency order under
section 232.104(2) outlining a court-ordered visitation schedule served children’s
best interests better than termination when children were over ten years old and
objected to termination).
Although we have found termination to be contrary to the child’s best
interests, we choose to touch on the mother’s arguments relating to the exceptions
to termination. Cf. B.T., 894 N.W.2d at 34 (finding two exceptions under section
232.116(3) applied to negate the need for termination after also finding termination
was not in the child’s best interests); M.M.M., 2007 WL 253987, at *4 (“We will
address this issue, even though we have concluded the absence of reasonable
efforts mandates reversal.”). She argues two exceptions should be applied—Iowa
Code section 232.116(3)(b) and (c), which respectively authorize the court to avoid
termination when “[t]he child is over ten years of age and objects to termination” or
“[t]here is clear and convincing evidence that the termination would be detrimental
to the child at the time due to the closeness of the parent-child relationship.” For
the same reasons discussed above, we agree the mother met her burden to allow
6 That said, we note that C.S.’s psychological evaluation linked his increased “acting out behaviors” to his brother moving out of the foster home. Those behaviors included stealing money from a local laundromat. 14
the juvenile court to apply these permissive exceptions to termination. We now
turn to the question of what happens next for C.S.
B. Disposition
When termination is denied but a child remains in need of assistance, the
juvenile court may enter a permanency order under section 232.104 which, as the
mother suggests, can involve transfer of “guardianship and custody of the child to
a suitable person” or the ordering of “another planned permanent living
arrangement for the child.” See Iowa Code § 232.117(2), (3), (5); see also id.
§ 232.104(2)(d)(1), (4); see generally id. § 232.104(4)(a) (“Prior to entering a
permanency order pursuant to subsection 2, paragraph “d”, convincing evidence
must exist showing that . . . [a] termination of the parent-child relationship would
not be in the best interest of the child.”). The mother requests one of the two
following permanency options: establishment of a guardianship with the maternal
grandmother under section 232.104(2)(d)(1) or another planned permanent living
arrangement under section 232.104(2)(d)(4).
As to her request for a guardianship, the mother generally asserts the
grandmother can provide appropriate care, and the child objected to termination.
Although section 232.104(2)(d)(1) allows for the establishment of a guardianship,
if another planned permanent living arrangement is also in play, section 232.104(3)
requires the court to “[a]sk the child about the child’s desired permanency outcome
and make a judicial determination that [the] arrangement is the best permanency
plan for the child.” See B.T., 894 N.W.2d at 32–33. Determining the best
permanency plan for a child is a best-interests assessment. See In re J.W.,
No. 19-0372, 2019 WL 1950009, at * 5 (Iowa Ct. App. May 1, 2019). 15
C.S. has thrived in his foster placement—where he feels safe and
comfortable—and he desires to remain with his foster family in the community that
is known to him and complete his formative education. At the time of trial, he was
seventeen years old and a junior in high school. He has established relationships
with counselors and teachers, with services in place to help him succeed in school
and life. To rip him away from this safe and comfortable setting when he is close
to completing high school only to ship him off to Minnesota to start anew for a short
time would certainly not be in this child’s best interests. As a result, we cannot
conclude a guardianship with the maternal grandmother in Minnesota would be the
best permanency plan for C.S.
On the other hand, because C.S. is “sixteen years of age or older,” we have
the option to “order another planned permanent living arrangement for the child.”
See Iowa Code § 232.104(2)(d)(4). The professionals in the case advocated for
an arrangement that would allow C.S. to stay in his foster placement until he comes
of age while continuing to receive services, including visitation with the mother.
This is in line with the child’s wishes and, to some extent, the mother’s so long as
it avoids termination. And for the reasons already stated, there are compelling
reasons the other permanency options in section 232.104(2)(d)(1)–(3) cannot be
employed. See Id. On our de novo review, we find the arrangement described
above to be the best permanency plan for the child. See id. § 232.104(3)(a).7
As a result, we reverse the termination of the mother’s parental rights as
contrary to the child’s best interests. We remand for dismissal of the petition as it
7 We also conclude clear and convincing evidence satisfies the requirements of Iowa Code section 232.104(4). 16
relates to the mother and entry of a permanency order allowing the child to remain
in the custody of the department for continued placement in foster care with
continued services and visitation. The frequency, duration, and level of
supervision of visits between the mother and child shall be subject to the terms
and oversight of the juvenile court. See M.M.M., 2007 WL 253987, at *5; In re
B.M., 532 N.W.2d 504, 507 (Iowa Ct. App. 1995).
III. Conclusion
We reverse the decision of the juvenile court terminating the mother’s
parental rights and remand for dismissal of the petition and the entry of a
permanency order consistent with this opinion.