In the Interest of D.O., Minor Child

• Court: Court of Appeals of Iowa
• Decided: September 27, 2023
• Docket: 23-0940
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-0940 Filed September 27, 2023

IN THE INTEREST OF D.O., Minor Child,

C.R., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Wapello County, William S. Owens,

Associate Juvenile Judge.

A mother appeals the termination of her parental rights. AFFIRMED.

Lynnette M. Lindgren of Faulkner, Broerman, & Lindgren, Ottumwa, for

appellant mother.

Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney

General, for appellee State.

Sarah L. Wenke, Ottumwa, attorney and guardian ad litem for minor child.

Considered by Tabor, P.J., Buller, J., and Vogel, S.J.*

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

(2023). 2

VOGEL, Senior Judge.

A mother appeals from the termination of her parental rights to D.O., born

in 2011.1 She argues the State failed to prove a statutory ground for termination,

termination is not in D.O.’s best interests, placing custody of D.O. with a relative

should preclude termination, and the State failed to provide reasonable efforts

toward reunification. We reject her arguments and affirm.

I. Background Facts and Proceedings

In April 2021, D.O. reported to school officials that the mother hit him. HHS

and law enforcement observed multiple injuries on his body, including two large

bruises on his thigh. In an interview with HHS, the mother acknowledged spanking

her children, including D.O., but she denied leaving any marks. D.O. was soon

removed from the mother’s custody and placed with his other legal parent. In June,

D.O. was adjudicated as being in need of assistance.

In November 2022, the State filed a petition to terminate the mother’s

parental rights to D.O. The matter proceeded to a termination trial in March 2023.

The juvenile court then terminated the parental rights of the mother and any

unknown or known putative fathers.2 Only the mother appeals.

II. Standard of Review

We apply de novo review to an order terminating parental rights. In re A.B.,

957 N.W.2d 280, 293 (Iowa 2021). We give weight to the juvenile court’s factual

1 The mother has other children who are not part of this proceeding. Additionally, the Iowa Department of Health and Human Services (HHS) was involved with the mother between 2011 and 2017 to address concerns with her mental health and substance abuse. 2 The record is unclear on the identity of the child’s other legal parent, whose

parental rights were unaffected by the termination. 3

determinations, especially regarding witness credibility, but we are not bound by

them. Id.

III. Analysis

Generally, we use “a three-step analysis to review termination of parental

rights. First, we consider whether there are statutory grounds for termination.

Second, we determine whether termination is in the best interest of the child. Third,

we consider whether we should exercise any of the permissive exceptions for

termination.” In re L.B., 970 N.W.2d 311, 313 (Iowa 2022) (citing In re A.S., 906

N.W.2d 467, 472–73 (Iowa 2018)).

A. Statutory Ground

The juvenile court terminated the mother’s parental rights under Iowa Code

section 232.116(1)(d), (e), (f), and (g) (2022). “On appeal, we may affirm the

juvenile court’s termination order on any ground that we find supported by clear

and convincing evidence.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). The

mother only challenges termination under section 232.116(1)(f).3 Because the

mother failed to challenge the other statutory grounds for termination, she waives

any challenge to those grounds on appeal. See In re P.L., 778 N.W.2d 33, 40

(Iowa 2010) (stating we need not discuss the statutory grounds for termination

when the parent does not dispute the existence of at least one ground); Hyler v.

Garner, 548 N.W.2d 864, 870 (Iowa 1996) (“[O]ur review is confined to those

propositions relied upon by the appellant for reversal on appeal.”).

3 The mother also asserts termination was improper under Iowa Code section

232.116(1)(l). Because the State did not petition to terminate her parental rights under paragraph (l), and the juvenile court did not terminate her rights under paragraph (l), we do not consider this paragraph. 4

Furthermore, as explained below, the mother failed to adequately address

her parenting and general behavior after removal. Thus, even if paragraph (f) were

the only statutory ground at issue, we would find the State satisfied that ground for

termination.

B. Best Interests

When evaluating the best interests of the child, 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). In arguing termination

is not in D.O.’s best interests, the mother points to her participation in mental-

health treatment, her sobriety, and her stable housing, employment, and

transportation as evidence of her progress.

HHS became involved here due to concerns the mother was physically

abusing D.O., and the mother’s general behavior immediately raised additional

concerns. During HHS’s first interview with the mother, she was belligerent and

uncooperative with HHS, and she shifted blame for D.O.’s injuries onto him for

being aggressive and lying. When presented with the removal order, the mother

attempted to flee from and then fought with law enforcement, resulting in her arrest

for interference with official acts. Soon after removal, a physician examined D.O.

and noted multiple injuries consistent with non-accidental trauma.

The mother initially received fully supervised visitation with D.O. She

continued cursing at and resisting the service providers during these visits. She

also used physical force to punish or otherwise direct D.O. and her other children

during visitations, contrary to the explicit directions of supervising providers. In 5

September 2021, D.O. began refusing to participate in visits with the mother.

Following his wishes and his therapist’s advice, the mother has had no contact

with D.O. since then. The HHS termination report shows the mother often refused

to cooperate with HHS throughout the juvenile proceedings.

Following removal, HHS recognized the mother needed to improve her

mental health. In the child-in-need-of-assistance adjudication, the juvenile court

determined the mother should follow HHS recommendations to submit to a

psychological evaluation and cooperate with follow-up treatment. Accordingly, the

mother underwent a psychological evaluation dated November 2021. The

evaluating psychologist opined the mother met the criteria for borderline

personality disorder; major depressive disorder, moderate, recurrent; and post-

traumatic stress disorder; and she showed features of obsessive-compulsive

personality disorder. The psychologist recommended the mother participate in

psychotherapy, specifically dialectical behavioral treatment.

The mother largely resisted treatment recommendations from the

psychologist and HHS. Instead, the mother continued seeing her long-time

therapist, whom she had seen for upwards of twelve years. While she made some

efforts to address her mental health through her therapist, this therapist told HHS

that the mother’s “progress was minimal” and “this was as good as she kind of was

going to be.” The therapist also told HHS that, while he advocates for his client,

he was “not sure [the mother] would benefit” D.O. due to her instability.

Additionally, the mother has been inconsistent in taking prescribed medications for

her mental health. 6

The mother underwent a second psychological assessment with a different

psychologist dated October 2022. This ensuing report was similar to the first,

underscoring the mother’s lack of progress on her mental health. The second

psychologist noted the mother’s “long history of uneven performance, poor impulse

control, and acting out behaviors directed against her children.” The psychologist

recommended intensive services, but the psychologist opined the mother would

likely continue having “problems with emotional control and stability” and her

prognosis was “at best, guarded” considering her current attitude and past history.

The mother’s testimony at the termination trial confirms her lack of progress.

She continued her defensive behavior, minimizing the physical and emotional

harm she inflicted on D.O. and her other children. For example, she denied

punching her older child in the face during a supervised visit, claiming instead she

only “popped him in his mouth because he was using some profanity.” She also

insisted she “never left a mark on [her] children” despite all evidence to the

contrary, which includes photographs of the marks found on D.O.

Furthermore, D.O. has thrived since removal from the mother. Both D.O.’s

therapist and the HHS worker testified his behaviors have greatly stabilized and

improved in the year leading up to termination and he feels comfortable in his other

parent’s home.

Considering the harm the mother inflicted on D.O. before removal and her

lack of progress since then, we agree termination of her parental rights is in D.O.’s

best interests. 7

C. Relative Custody

The mother argues termination is not appropriate because D.O.’s other

parent has legal custody. See Iowa Code § 232.116(3)(a) (stating the court need

not terminate parental rights if “[a] relative has legal custody of the child”). This

exception is “permissive, not mandatory.” In re A.S., 906 N.W.2d 467, 475 (Iowa

2018) (quoting In re A.M., 843 N.W.2d 100, 113 (Iowa 2014)). “An appropriate

determination to terminate a parent-child relationship is not to be countermanded

by the ability and willingness of a family relative to take the child. The child’s best

interests always remain the first consideration.” Id. (quoting In re C.K., 558 N.W.2d

170, 174 (Iowa 1997)). As explained above, termination is in D.O.’s best interests,

and he is thriving in the other parent’s custody. We decline to apply this exception

to termination.

D. Reasonable Efforts

HHS must “make every reasonable effort to return the child to the child’s

home as quickly as possible consistent with the best interests of the child.” Iowa

Code § 232.102(6). The mother argues HHS failed to make reasonable efforts

because she had no contact with D.O. after he began refusing visits in September

2021, which refusal was supported by D.O.’s therapist. However, a parent must

object to the services offered “early in the process so appropriate changes can be

made.” In re L.M., 904 N.W.2d 835, 840 (Iowa 2017) (quoting In re C.B., 611

N.W.2d 489, 493–94 (Iowa 2000)). “In general, if a parent fails to request other

services at the proper time, the parent waives the issue and may not later

challenge it at the termination proceeding.” Id. (citation omitted); see also In re

C.H., 652 N.W.2d 144, 148 (Iowa 2002) (“If a parent has a complaint regarding 8

services, the parent must make such challenge at the removal, when the case

permanency plan is entered, or at later review hearings.”). The mother did not file

a motion requesting additional contact with D.O. until March 2023, three months

after the State filed the termination petition. Thus, she waived any reasonable-

efforts challenge during the pendency of these proceedings. See L.M., 904

N.W.2d at 840. Furthermore, we note the lack of contact resulted from the

mother’s behavior, which inflicted harm on D.O., along with her refusal to fully

address her mental health and otherwise cooperate with the other services HHS

offered.

IV. Conclusion

The mother waived her challenge to the statutory grounds for termination,

termination is in the best interests of D.O., placing him in the custody of his other

parent does not preclude termination, and the mother waived her reasonable-

efforts challenge.

AFFIRMED.