In the Interest of D.L., E.L., and J.L., Minor Children

• Court: Court of Appeals of Iowa
• Decided: November 4, 2020
• Docket: 20-0935
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0935 Filed November 4, 2020

IN THE INTEREST OF D.L., E.L., and J.L., Minor Children,

J.L., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Poweshiek County, Rose Anne

Mefford, District Associate Judge.

A father appeals the termination of his parental rights to his children.

AFFIRMED.

Colin McCormack of Van Cleaf & McCormack Law, Des Moines, for

appellant father.

Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant

Attorney General, for appellee State.

Patrick J. Mahaffey of Mahaffey Law Office, Montezuma, attorney and

guardian ad litem for minor children.

Considered by Bower, C.J., Schumacher, J., and Mahan, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020). 2

MAHAN, Senior Judge.

A father appeals the termination of his parental rights to his children,1 born

in 2014, 2016, and 2017.2 He contends the State failed to prove the grounds for

termination cited by the juvenile court and the court erred in denying his motion to

reconsider. We affirm.

I. Background Facts and Proceedings

This family came to the attention of the department of human services in

August 2018, when the equivalent of the department of human services in Texas

contacted law enforcement in Iowa to request a welfare check on the children.3

The family resided in Texas but had been staying at a motel in Grinnell since June

due to the father’s employment in Iowa. Law enforcement found the children alone

in a motel room, and the Texas department initiated a child-abuse assessment.

The next day, an Iowa caseworker attempted to make contact with the

family. The mother refused to answer the door and did so only after law

enforcement was summoned. The motel room was in “complete squalor,” with

feces on the floor and mattresses, and rotted food, medications, and a lit candle

within the reach of the children. It was 2:30 p.m., and the children were “wearing

no clothing except diapers,” “hadn’t eaten that day,” had “severe head lice

1 The father is not the biological father of D.L., but his parental rights of D.L. as the child’s purported legal father were terminated. 2 The parental rights of children’s mother were also terminated, but she did not

appeal. 3 The family was actively involved with the department in Texas. The father

expressed there had been “at least two service cases in the state of Texas that he and [the mother] were involved with.” 3

infestations,” and required antibiotics to treat various illnesses. 4 J.L. had “severe

bruising and scratch marks” caused by being hit by a belt as discipline, and knots

had to be cut out of her tangled hair. The parents were each convicted of three

counts of child endangerment, and a founded child-abuse report was issued

following the incident.

The children were removed from the parents’ care and adjudicated in need

of assistance.5 The children have remained in foster care since their removal in

August 2018. The parents began participating in rehabilitative services and moved

into an apartment. In September, the mother was observed leaving the apartment

with a young child, who was determined to be the mother’s child, O.S.6 The mother

reported O.S. resided in Indiana, but O.S. informed the department she had been

living with her “fake mom” in Texas. The department learned the parents had “kept

[O.S.] concealed with them for approximately six weeks” before the department

discovered the child in their care. O.S. was adjudicated in a separate case,

removed from the parents’ care, and placed in foster care.7

4 Upon medical examination in the emergency room, D.L. was diagnosed with an ear infection and E.L. and J.L. had bacterial infections on their skin. 5 The initial adjudicatory order was filed in September 2018. That adjudication and

subsequent dispositional order were reversed and remanded by this court in In re D.L., No. 18-2014, 2019 WL 719187, at *2–4 (Iowa Ct. App. Feb. 20, 2019) (upholding the court’s emergency temporary removal order but remanding for a determination of whether Texas had declined jurisdiction and whether Iowa had become the children’s home state). Upon determining Iowa had subject matter jurisdiction, the juvenile court thereafter entered an order in May 2019 adjudicating the children in need of assistance. 6 O.S. is not the father’s child. 7 The parental rights of O.S. were also terminated, but that order is not at issue in

this appeal. 4

In November, the mother gave birth to the parents’ child, M.L., who was

born several weeks premature. M.L. remained hospitalized until December 30,

when he was released to the parents’ care. The parents failed to inform the

department of the child’s discharge from the hospital, contrary to the department’s

instructions. The next day, the father called 911 to report the child was not

breathing. Meanwhile, the mother cut her arms from the wrist to the elbow because

she “thought [M.L.] was dead.” M.L. was taken to the emergency room and then

to Blank Children’s Hospital, where he was taken off life support several days later.

It was determined the child’s death was caused by accidental suffocation. The

mother was involuntarily commited for inpatient psychiatric treatment following the

incident.

In May 2019, the mother moved to Texas, stating she could not “be there”

for the children due to her “own issues.” The mother has had no contact with the

children since that time.

Meanwhile, the father was attending parenting classes, but, according to

the service provider, he was “not able to do the things he’s learned.” The father

made two trips to Texas after the mother moved there—in June and July. He

stated the visits were to see his older child. During one of those trips, the father

was detained in Oklahoma on outstanding warrants. Due to concerns about the

father’s “misrepresentations” to the department, his visits with the children returned

to fully supervised.

A dispositional order entered in July 2019 found the children could not be

returned home 5

due to the mother’s severe mental health issues and need for ongoing treatment; the father’s failure to protect the children; the death of a sibling, [M.L.], who was returned to the parents’ care in December; the parents’ convictions of child endangerment wherein these children were the victims; Mother’s evasiveness and history of non-cooperation and deception; the parents’ lack of supervision of the children; and the parents’ inability to supervise/care for the children at this time.

The State filed a petition for termination of parental rights in September

2019. That month, the father was arrested for speeding and also charged with

operating while intoxicated. A drug test submitted by the father in October was

“dilute[d],” but a subsequent test came back negative. Caseworkers noted the

father’s “contributions to child raising had been minimal” prior to the mother’s

departure to Texas, and his “parenting skills need vast improvement before he will

be able to adequately care for the children on his own.”

The termination hearing took place in November 2019. The department

caseworker, guardian ad litem, and court-appointed special advocate

recommended termination of the father’s parental rights. The record before the

juvenile court indicated the children had been removed from the father’s care since

August 2018, and the father’s visitation with the children had been fully supervised

since that time, with the exception of a short period of semi-supervised visitation

during July through September 2019. The department caseworker testified, “[O]n

the surface, [the father] has done more as part of the case plan [than the mother],

but . . . underlying, I don’t believe that he’s really even cut the surface of what he

needs to do for parenting.” The caseworker expressed concerns about the father’s

“honesty,” “decision-making,” and “protective capabilities,” and opined the children 6

could not safely be returned to the father’s care at the present time. The guardian

ad litem echoed this sentiment.

In June 2020, the court entered its order terminating the father’s parental

rights pursuant to Iowa Code section 232.116(1)(f) (2019) (concerning J.L.), (h)

(concerning D.L. and E.L.), and (d) and (i) (concerning all children). The father

appeals.

II. Standard of Review

Appellate review of termination-of-parental-rights proceedings is de novo.

In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our primary consideration is the best

interests of the children, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the defining

elements of which are the children’s safety and need for a permanent home. In re

H.S., 805 N.W.2d 737, 748 (Iowa 2011).

III. Motion to Reconsider

The father contends the court “erred in issuing a ruling on termination of

parental rights seven months following hearing without seeking any update of the

circumstances of the father or the minor children and refusing to consider such an

update when it was offered by way of a motion to reconsider.” Following the

termination order, the father filed a notice of appeal and a motion to reconsider

pursuant to Iowa Rule of Civil Procedure 1.904(2). The father’s motion alleged his

“abilities in parenting [had] significantly progressed” in the seven months since the

termination hearing, as “outlined in an affidavit of the father alongside certain

attached documents.” An affidavit of the father was the only attachment to the

motion; it described his parenting skills, visits with the children, and lack of contact 7

with the mother. The district court denied the motion, finding the father “has

appealed the ruling.”

The father likens this situation to that presented in In re L.T., in which the

supreme court found the juvenile court abused its discretion by refusing to reopen

the record when approximately twenty months passed between the termination

hearing and the termination order and “the mother’s situation may well have

materially changed.” 924 N.W.2d at 525–26. Notably, in L.T., the mother sought

to reopen the record before a final order was entered. 924 N.W.2d at 527.

We disagree with the father’s comparison, particularly considering the

procedural posture of this case. Cf. In re A.H., No. 19-2024, 2020 WL 10498846,

at *2 (Iowa Ct. App. Mar. 4, 2020) (distinguishing L.T. and affirming the juvenile

court’s denial of the father’s motion to reopen the record where “there was not a

lengthy delay between the termination hearing and the filing of the termination

order,” “the information that he wanted to present by reopening the record was

within the contemplation of the court from the evidence presented at the hearing,”

and the father “waited until after the court entered the termination order before

requesting to reopen the record” (emphasis added)). Here, the father’s motion to

reconsider was filed both after the juvenile court entered the termination order and

after the father filed his notice of appeal. “A moving party is deemed to have

waived and abandoned a posttrial motion when that party files a notice of appeal.”

Freer v. DAC, Inc., 929 N.W.2d 685, 687–88 (Iowa 2019) (“The general rule that

the district court loses jurisdiction when an appeal is perfected has application

when the appeal is taken before the filing of posttrial motions.”); IBP, Inc. v. Al-

Gharib, 604 N.W.2d 621, 628 (Iowa 2000) (“Once an appeal is perfected, the 8

appellate court has jurisdiction. At the same time, the district court loses

jurisdiction over the merits of the controversy and may not consider any posttrial

motions filed after the notice of appeal.” (citations omitted)). Accordingly, the

father’s notice of appeal waived his motion and divested the district court of

jurisdiction. See Freer, 929 N.W.2d at 688; IBP, Inc., 604 N.W.2d at 628.

IV. Grounds for Termination

The father challenges the sufficiency of the evidence supporting the

grounds for termination cited by the juvenile court. We may affirm if we find clear

and convincing evidence to support any of the statutory provisions. See In re A.B.,

815 N.W.2d 764, 774 (Iowa 2012). We will focus on Iowa Code section

232.116(1)(f) and (h), which require proof of several elements conceded by the

father and proof the children could not be returned to his custody. The father

contends the evidence did not establish the children could not be returned to his

care at the present time.

At the termination hearing, the father testified he was living in a three-

bedroom duplex that was suitable for the children, he was able to alter his work

schedule, and he was trying to find daycare for the children. He stated he had “no

relationship” with the mother, he had not had contact with her since “[t]he day that

she left” for Texas, and he did not intend to resume a relationship with her. The

father stated he planned to return to Texas with the children if the juvenile case

was closed and after his criminal matters in Iowa were resolved.

The father acknowledged the family’s history of involvement with the

department in Texas but shifted the blame to the mother for being “overwhelmed

with the kids.” He admitted he “could have” done more to ensure the children’s 9

safety and well-being prior to their removal in Iowa and stated he “relied too much

on their mother.” Yet the father acknowledged the longest period of time he had

cared for the children was “two weeks when [he] and [the mother] had broken up.”

The department caseworker testified that when the children were

discovered in Iowa (during which time there was an open child-services case from

Texas), “[t]heir needs were not being met at all,” including “supervision,” “[f]ood

and nutrition,” “physical care,” and “medical needs.” After the children’s removal,

new concerns arose regarding the parents’ concealment of O.S. in their home and

their failure to notify the department when M.L. was released from the hospital into

their care. The record shows a pattern of “abuse,” “neglect,” and failure to disclose

information. Indeed, the caseworker noted there were “a lot of concerns with

interactions with the State of Texas” and opined the father was “not honest about

things until we find them out after the fact.”

The guardian ad litem opined he had “concerns and reservations about [the

father’s] lack of awareness of his responsibility as to where the children are

currently at at this point, and that lack of awareness creates safety concerns now

and moving forward.” The juvenile court found:

The child[ren] cannot safely be returned to the father. . . . Father made some limited progress, but after advancing to semi-supervised visits, his behaviors resulted in visits returning to fully supervised in just a few short weeks. . . . [The] mother may have absented herself for more than a year, but [the father’s] demonstrated defense of mother’s actions and acquiescence to mother’s substandard parenting and supervision of the children place them at the same risk. 10

We concur in the court’s finding that the children could not be returned to

the father’s custody at the time of the termination hearing. Iowa Code section

232.116(1)(f) and (h) were satisfied.

Termination also must serve the children’s best interests. See Iowa Code

§ 232.116(2). For the reasons set forth above, we conclude termination is in the

children’s best interests, and no permissive statutory exception should be applied

to preclude termination. See id. § 232.116(3). We affirm the decision of the

juvenile court to terminate the father’s parental rights.