In the Interest of F.H., W.H., and B.H., Minor Children

• Court: Court of Appeals of Iowa
• Decided: January 24, 2024
• Docket: 23-1686
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1686 Filed January 24, 2024

IN THE INTEREST OF F.H., W.H., and B.H., Minor Children,

M.M., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, David F. Staudt,

Judge.

A mother appeals the order terminating her parental rights to three children.

AFFIRMED IN PART AND VACATED IN PART.

Jamie L. Schroeder of Nelson & Toenjes PLLC, Shell Rock, for appellant

mother.

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

General, for appellee State.

Michele R. McCann of McCann Law, PLLC, Cedar Falls, guardian ad litem

for minor children.

Tammy Banning of Juvenile Public Defender’s Office, Waterloo, attorney for

minor children.

Considered by Tabor, P.J., and Badding and Chicchelly, JJ. 2

TABOR, Presiding Judge.

This case involves three children: thirteen-year-old F.H., ten-year-old W.H.,

and nine-year-old B.H. These siblings have suffered “a lot of trauma” and act out

as a result. According to their caseworker, when they’re around their mother their

defiance “just explodes. Almost like you put gas on top of the fire and then the

behaviors just escalate pretty severely.” Rather than correct their behaviors, the

mother lets the children “just do whatever they want.”

Citing the mother’s lack of parenting skills, as well as her failure to address

her substance use and mental health, the juvenile court terminated her parental

rights to the three children. The mother, Maggie, appeals raising five

claims: (1) the State did not prove grounds for termination; (2) termination was not

in the children’s best interests; (3) exceptions apply because of their bonds and

the children’s objection to termination; (4) she should have more time for

reunification; and (5) the juvenile court erred in ordering her to repay her court-

appointed attorney fees. We affirm on all but the last issue.1

I. Facts and Prior Proceedings

In December 2021, the father had sole custody of F.H., W.H., and B.H. But

he allowed them to live with Maggie. While caring for them, Maggie was using

methamphetamine.2 She also went to jail on drug charges. During her

incarceration, the children lived with Maggie’s twenty-year-old son and his

1 We review termination proceedings de novo. In re L.B., 970 N.W.2d 311, 313 (Iowa 2022). The juvenile court’s fact findings carry weight but are not binding. Id. Our priority is the children’s best interests. Id. 2 It was not the first time. In 2018 and 2019, child protective services issued

founded reports that she had been high on methamphetamine when supervising her children. 3

girlfriend under a voluntary safety plan developed by the Iowa Department of

Health and Human Services.

The department provided services to the children and that placement. But

not Maggie. After she left jail, she did not respond to the case worker’s outreach

for seven months. The court adjudicated F.H., W.H., and B.H. as children in need

of assistance (CINA) in May 2022.3 Following the adjudication, the children

struggled in their brother’s home. He would let Maggie take the children without

supervision. And the children were left alone for days at a time. So the department

moved them to new placements.4

Meanwhile, Maggie did not meet the expectations of the department’s case

plan. She often showed up late for visits or did not show up at all. Her

inconsistency affected the children: “they get pretty frustrated or angry because

they’re looking forward to seeing their mom and will get upset, cry, come back to

foster home upset.” Some of the difficulty in scheduling visits stemmed from her

work schedule: “Maggie has had a number of different jobs so about the time we

get the schedule going, she takes on another job and it changes again.”5

When Maggie did attend supervised visits, she could not control the

children, who would “just run around and do whatever they want. They are not

really ever told no or disciplined.” The case worker also noted that the mother did

3 F.H. accused her father of sexual abusing her. The child abuse assessment was unfounded. But according to the case worker, the father did not want the children back in his care because he believed that they had made false accusations of abuse against him. 4 At the time of the termination hearing, the siblings had three separate

placements. W.H. was living with an aunt, B.H. was in foster care, and F.H. was in a qualified residential treatment program (QRTP). 5 Maggie has worked in restaurants, either serving food or in the kitchen. 4

not seek a mental-health evaluation or treatment for herself. Without that

engagement, the case worker believed it would be “very difficult to start addressing

the parent education and helping her with her kids and all of their trauma.”

And despite long-standing concerns about her methamphetamine use, the

mother was slow to obtain a substance-use evaluation and did not follow through

with the recommended treatment. Neither did she participate in drug testing as

required in the CINA case. But as part of her criminal probation, she provided a

urine sample positive for methamphetamine in April 2023.

The State petitioned for termination of parental rights in July 2023. At the

August 2023 termination hearing, the State offered testimony from the

department’s case worker. The mother attended but did not testify. Her attorney

offered an exhibit from a drug counselor who reported that Maggie’s screening

revealed a moderate amphetamine-type substance-use disorder.

The children’s representation was bifurcated between an attorney and their

guardian ad litem (GAL). Their attorney told the court that W.H. and F.H. opposed

termination and believed that they could be safely returned to their mother’s care.

B.H. had a slightly different take: “In a perfect world he has always wanted to return

to his mother’s care.” But he declined to express a preference for placement and

asked the court to decide for him. The GAL believed termination was in the

children’s best interests, finding no evidence in the record that Maggie could offer

them a stable environment.

In its September order, the juvenile court terminated Maggie’s parental

rights under Iowa Code section 232.116(1) (2023), paragraphs (e), (f), and (l). The

court rejected her argument that termination would harm the children because of 5

the closeness of the parent-child relationship. See Iowa Code § 232.116(3)(c).

Maggie appeals.

II. Analysis

Most often we analyze termination cases in three steps. In re A.S., 906

N.W.2d 467, 472–73 (Iowa 2018). First, we look for a basis to terminate in Iowa

Code section 232.116(1). Id. Second, we decide whether termination is in the

children’s best interests under the framework of section 232.116(2). Id. Third, we

consider whether we should apply any of the permissive factors in section

232.116(3). We examine all three steps here.

A. Statutory Grounds for Termination

The State must prove the grounds for termination by clear and convincing

evidence. L.B., 970 N.W.2d at 313. “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). In this case, we focus on paragraph (f), which requires proof that (1)

the children are four or older; (2) they have been adjudicated as CINA; (3) they

have been removed from home for the last twelve straight months; and (4) they

cannot be returned to the parent’s care at the present time. Iowa Code

§ 232.116(1)(f).

Maggie challenges only the fourth element. She contends that she could

resume care of the children given her “sobriety, stable housing and employment,

and significant relationships with her children.” We disagree.6 Maggie had not

6 Our case law offers two formulations for what it means when a child “cannot be

returned” to parental custody as provided in section 232.102 (discussing transfer 6

sought treatment for her substance-use disorder. Nor had she addressed her

mental health. She was inconsistent in her visits with the children and did not even

try to control their unruly behavior. In the last few months of the CINA case, Maggie

was living with her adult daughter. But her bedroom was the living room. And the

caseworker did not believe there was space to accommodate all three children

should they return home. This record contains clear and convincing evidence that

the children could not safely be returned to Maggie’s custody at the time of the

termination hearing. See In re M.W., 876 N.W.2d 212, 224 (Iowa 2016).

B. Best Interests

Moving to best interests, we give primary consideration to the children’s

safety; to the best placement for furthering their long-term nurturing and growth;

and to their physical, mental, and emotional condition and needs. Iowa Code

§ 232.116(2). We also consider whether they are integrated into a foster home,

and their placement preferences, when they can express them. Id.

§ 232.116(2)(b). The best-interests determination also embraces the concept of

permanency. See In re W.M., 957 N.W.2d 305, 313–14 (Iowa 2021) (reiterating

of a child’s legal custody if staying in the home would be “contrary to the welfare of the child”). Many cases cite In re M.M., 483 N.W.2d 812, 815 (Iowa 1992), which quotes section 232.102(4)(a)(2)—then numbered section 232.102(5)(b)—for the proposition that custody should be transferred only if the court finds “the child cannot be protected from some harm which would justify adjudication of the child as a child in need of assistance and an adequate placement is available.” See, e.g., In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App. 2016). But our supreme court often describes that element as the inability to “safely return” children to their parents’ care. See, e.g., In re T.W., No. 20-145, 2020 WL 1881115, at *2–3 (Iowa Ct. App. Apr. 15, 2020) (collecting cases). Under either formulation, the State met its burden of proof. 7

that children should not be deprived of permanency “by hoping someday a parent

will learn to be a parent and be able to provide a stable home for the child”).

Maggie emphasizes on appeal that all three children are in separate

placements, none of which offered a clear plan for permanency. She points

particularly to F.H.’s prospects: “Her placement in QRTP meant that she would not

be in a home or family-like setting and, therefore, not eligible for adoption.” Maggie

also stresses that W.H. and F.H. objected to termination and wanted to return to

her care. Maggie’s points are well taken. Long-term permanency is not in their

sights, and the children wish they could go home.

Yet termination remains in their best interests. As the case worker

explained at the hearing, “these kids have significant behaviors and trauma from

the experience they have suffered in the hands of their parents,” and Maggie

doesn’t have the parenting skills to help them navigate their emotional conditions.

According to their GAL, the boys—W.H. and B.H.—have “thrived in their foster

care homes” where all their needs are being met. As for F.H., she now “is in an

environment where she can get the treatment she needs.” Their court appointed

special advocate (CASA) also believed termination was in their best interests: “the

long process has been difficult for the kids. The up and down, and not knowing,

has been difficult. And I would think it would be in their best interest to have the

termination sooner rather than later.” While no doubt painful, termination is the

best option for these children. 8

C. Statutory Factors Weighing Against Termination

Maggie next argues that paragraphs (b), (c), and (d) of section 232.116(3)

are relevant to our analysis. Under those provisions, a court may preserve the

parent-child relationship if it finds:

(b) The child is over ten years of age and objects to the termination. (c) There 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. (d) It is necessary to place the child in a hospital, facility, or institution for care and treatment and the continuation of the parent- child relationship is not preventing a permanent family placement for the child. . . . .

Iowa Code § 232.116(3).

As for (b), only F.H. was over ten years old. True, she opposed termination.

But her GAL and CASA explained why it was best for her well-being. While we

respect F.H.’s view, “we do not believe this permissive factor required the juvenile

court to bypass termination in this situation.” In re A.R., 932 N.W.2d 588, 592

(Iowa Ct. App. 2019). F.H. has struggled with her behaviors and mental-health

issues; her desire to reunify with her mother is not a realistic prospect.

As for (c), the children’s attorney argued that the children felt “very close to

their mother.” The CASA also reported that the children were “strongly bonded” to

their mother. “We do not discount that there is a bond between [Maggie and her

children]. But [she] has failed to provide the clear and convincing evidence

necessary to show that, on balance, that bond makes termination more detrimental

than not.” W.M., 957 N.W.2d at 315. And the case worker’s comparison of

Maggie’s visitation with the children to throwing gasoline on a fire leads us to

believe that termination is the less harmful option. 9

As for (d), Maggie maintains placement of F.H. in the QRTP facility means

that continuation of the parent-child relationship does not prevent a permanent

family placement for that child.7 That rationale may apply in the short term. But

as the GAL explained, in the long term, severing parental rights will ensure that the

children are “freed for adoption.” Terminating Maggie’s parental rights allows the

department to seek an adoptive placement for F.H. upon her release. See In re

J.R. II, No. 12-1239, 2012 WL 4903048, at *3 (Iowa Ct. App. Oct. 17, 2012).

None of the section 232.116(3) factors block termination.

D. More Time to Reunify

As a final means to avoid termination, Maggie asks for six more months to

work toward reunification. See Iowa Code § 232.104(2)(b). She asserts that her

situation “greatly improved” in the months just before the termination trial and a

little extra time will get her over the finish line. She declares that she is “willing to

continue working” with the department and other professionals to “further prove”

that the children can be safely returned to her care.

A court may deny termination and give a parent more time for reunification

only if the need for removal “will no longer exist at the end of the additional six-

month period.” Id. And not only must the record show that Maggie has overcome

the obstacles to reunification in six months, but we must consider whether the

delay is in the children’s best interests. See In re W.T., 967 N.W.2d 315, 323

(Iowa 2021). Because Maggie’s methamphetamine use while caring for the

7 The State’s response to the petition on appeal fails to address this argument.

Likewise, the juvenile court order does not mention paragraph (d), though it was raised at trial. We opt to bypass any error-preservation problem and address the merits of this claim. 10

children sparked the department’s intervention, and she has not started treatment

for her substance-use disorder, we do not find that another six months would

ensure safe parenting. She had eighteen months to take the necessary steps to

be a successful parent but did not do so. More time is unwarranted.

E. Reasonable Ability to Pay Attorney Fees

In March 2022, Maggie applied for court-appointed counsel and swore in an

affidavit that she was making $10 per hour at a pizzeria in Waterloo. The court

approved her request for the CINA case, finding that Maggie was eligible for court-

appointed counsel under Iowa Code section 815.9 because her income was “at or

below 125% of the poverty guidelines.” In July 2023, the court reappointed counsel

for the termination proceedings. The order stated: “Per Iowa Code section 815.9,

you may be required to reimburse the State for all or a portion of the attorney’s

fees and costs.”

In its termination order, the juvenile court stated: “[Maggie] claims to be

gainfully employed and as such shall be responsible for her attorney fees.” In her

petition on appeal, Maggie challenges that order to repay attorney fees. In its

response, the State “offers no argument as to the question of attorney’s fees and

the finding of the juvenile court.”

Iowa Code section 815.9 governs the appointment of counsel to indigent

persons and applies to court appointments under chapter 232. Iowa Code

§ 815.9(1).

Subsection (6) addresses repayment:

If the person receiving legal assistance . . . is a party in a case other than a criminal case, the court shall order the payment of all or a portion of the total costs and fees incurred for legal assistance, to the 11

extent the person is reasonably able to pay, after an inquiry which includes notice and reasonable opportunity to be heard.

Id. § 815.9(6); accord State v. West Vangen, 975 N.W.2d 344, 352 (Iowa 2022)

(recognizing provision found unconstitutional as to acquitted defendants in State

v. Dudley, 766 N.W.2d 606, 614 (Iowa 2009)). The language of the statute is clear:

the juvenile court is to make an inquiry, “which includes notice and reasonable

opportunity to be heard” before assessing costs against a parent. That did not

happen here. The court did not give Maggie notice or ask about her reasonable

ability to pay. And Maggie asserts on appeal that “[w]hile [she] is employed in the

restaurant industry, her limited income does not allow her to reasonably pay the

entirety of her court-appointed attorney fees.” Because the juvenile court did not

comply with section 815.9(6), we vacate its part of the order assessing attorney

fees.

We affirm the rest of the termination order.