In the Interest of F.K., G.K., and T.Y., Minor Children

• Court: Court of Appeals of Iowa
• Decided: October 6, 2021
• Docket: 21-0901
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-0901 Filed October 6, 2021

IN THE INTEREST OF F.K., G.K., and T.Y., Minor Children,

J.K., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Greene County, Joseph McCarville,

District Associate Judge.

A mother appeals a district court order terminating her parental rights.

AFFIRMED.

Ashley Beisch of Johnson Law Office, Ogden, for appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Kevin Hobbs, Johnston, attorney and guardian ad litem for minor children.

Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ. 2

SCHUMACHER, Judge.

A mother appeals a district court order terminating her parental rights. We

reject the mother’s claim that the district court improperly took judicial notice of a

timeline submitted by the State. There is sufficient evidence in the record to

support termination of the mother’s parental rights. Termination is in the children’s

best interests and none of the permissive exceptions to termination should be

applied. We affirm the decision of the district court.

I. Background Facts & Proceedings

J.K. is the mother of F.K., born in 2015; G.K., born in 2016;1 and T.Y., born

in 2017. The father of T.Y., T.Y. Jr., lived in the family home. The family came to

the attention of the Iowa Department of Human Services (DHS) in October 2018

amid concerns the mother was using methamphetamine. There was also a report

of an incident of domestic violence between T.Y. Jr. and the mother, resulting in

the mother receiving a black eye. T.Y. Jr. was charged with domestic abuse.

On January 7, 2019, the children were adjudicated to be in need of

assistance (CINA), pursuant to Iowa Code section 232.2(6)(c)(2) (2018). The

mother successfully completed a substance-abuse treatment program in March

2019. She also met with a therapist for mental-health concerns. However, the

mother’s progress was short-lived, as the mother did not report for requested drug

testing in August, November, or December. On January 11, 2020, the mother was

arrested for a driving offense and possession of illegal drugs. The children were

1 The father of F.K. and G.K. is unknown. 3

removed from the mother’s custody on January 14 and placed with an extended

family member.

The State received notice from the Cherokee Nation that the children were

determined to be Indian Children as defined in the Indian Child Welfare Act

(ICWA). See 25 U.S.C. § 1903(4). The State notified the Cherokee Nation the

children were removed from the mother’s custody.

Beginning in October 2019, the mother either refused or did not show up for

requested drug testing. The mother struggled to show up on time for visits, provide

adequate meals, have appropriate conversations, and interact in a positive way

with the children. Additionally, the mother did not have adequate housing for

herself and the children.

On October 19, 2020, the State filed a petition seeking termination of the

mother’s parental rights. The mother tested positive for methamphetamine in

October and December. The Cherokee Nation filed a motion to intervene on

January 11, 2021.2 The termination hearing was held on May 4. Renee Gann

appeared on behalf of the Cherokee Nation as an expert witness. Gann testified:

That continued custody of these children with the mother and the father is most likely to result in serious emotional and/or physical damage to these children due to the issues of the substance abuse; inconsistent and unstable housing; um, issues with no income; and, um—yeah, and mental health, the mental health issues not being treated.

Gann also gave the opinion that termination of the mother’s parental rights was in

the children’s best interests. She stated the children’s current placement was

appropriate and met the requirements of ICWA.

2 The Cherokee Nation has not appealed the termination ruling. 4

The district court terminated the mother’s rights to F.K. and G.K. under

section 232.116(1)(e) and (f) (2020) and T.Y. under section 232.116(1)(e) and (h).3

The court found beyond a reasonable doubt that continued custody of the children

by the mother was likely to result in serious emotional or physical damage to the

children. The court determined that termination of the mother’s parental rights was

in the children’s best interests. The mother timely appeals from the decision of the

district court.

II. Standard of Review

Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d

764, 773 (Iowa 2012). The State must prove its allegations for termination by clear

and convincing evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). “‘Clear

and convincing evidence’ means there are no serious or substantial doubts as to

the correctness [of] conclusions of law drawn from the evidence.” Id. Our primary

concern is the best interests of the children. In re J.S., 846 N.W.2d 36, 40 (Iowa

2014).

III. Judicial Notice

During the direct examination of Paige DenAdel, a social worker with DHS,

the following exchange occurred:

Q: You wrote and filed a document entitled [J.K.] case timeline, dated November 28th, 2018, through April 8th, 2021. Is that a document that you authored? A: Yes. Q. And was that document filed on April 23rd, 2021? A. Yes. Q: Is everything contained in that document true and accurate? A: Yes.

3 The court also terminated the parental rights of any unknown fathers. None of the fathers have appealed. 5

Prosecutor: Your Honor, I believe that was filed in these case files; so I’m not sure if you have to take judicial notice of that or not; but I would ask that you specifically take notice of that filing. .... Mother’s Attorney: Your Honor, I would object to anything prior to this worker’s joining the case. The Court: Let’s see here. Did the information in the timeline—is that information that was provided—that you gained through [DHS]? DenAdel: Yes. The Court: So when the case was handed off to you, the professionals in the case prior to your activity—prior to your involvement is what you relied on for the information in the timeline prior to January of 2019? DenAdel: Yes. The Court: Okay. I overrule the objection; and I will take judicial notice of the timeline filing filed on April 23rd, 2021, at 8:47 a.m. In both cases, in both—well, the timeline, there’s one for [J.K.] and one for [T.Y. Jr.]; and I’ll take judicial notice of both of them.

This exchange shows that the mother did not object to the introduction of

the timeline as a whole. She objected only to the portion of the timeline that arose

before DenAdel started working on the case, stating, “I would object to anything

prior to this worker’s joining the case.”

On appeal, the mother raises an entirely different objection to the one she

raised at the termination hearing. She now claims the subject matter of the timeline

was not information the court could judicially notice. We conclude the mother did

not preserve error on the issue she raises on appeal. See In re M.A.F., 679 N.W.2d

683, 685 (Iowa Ct. App. 2004) (“Under our rules of civil procedure, an issue which

is not raised before the juvenile court may not be raised for the first time on

appeal.”).

To the extent the mother raises the issue of whether the timeline could be

admitted through DenAdel, who did not have personal knowledge of incidents

occurring before she started working on the case, we conclude the mother has not 6

shown she was prejudiced by the information in the timeline. See Good v. State,

No. 20-0722, 2021 WL 610168, at *2 (Iowa Ct. App. Feb. 17, 2021) (finding there

was no error in the trial court’s ruling on a matter of judicial notice because there

was no prejudice). Almost all the information in the timeline was in DHS reports,

which were part of the record. See Iowa Code § 232.96(6) (providing that DHS

reports are admissible in CINA proceedings); In re E.J.R., 400 N.W.2d 531, 533

(Iowa 1987) (finding evidence admissible in CINA proceedings was also

admissible in termination proceedings).

We reject the mother’s claim that the district court improperly considered

the timeline submitted by DHS.

IV. Sufficiency of the Evidence

A. Iowa Code section 232B.6(6)(a) provides:

Termination of parental rights over an Indian child shall not be ordered in the absence of a determination, supported by evidence beyond a reasonable doubt, including the testimony of qualified expert witnesses, that the continued custody of the child by the child’s parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

“This section requires the juvenile court to consider the testimony of a qualified

expert witness prior to the termination of the parental rights of the child’s parent or

Indian custodian.”4 In re S.M., 508 N.W.2d 732, 734 (Iowa Ct. App. 1993). The

4 Section 232B.6(6)(a) is based on 25 U.S.C. § 1912(f). See In re P.L., 778 N.W.2d 33, 34 n.1 (Iowa 2010) (noting 25 U.S.C. § 1912(f) and Iowa Code § 232B.6(6)(a) require the same proof). The portion of the federal statute that prohibits “placement or termination absent ‘evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,’” was declared unconstitutional in Brackeen v. Haaland, 994 F.3d 249, 406 (5th Cir. 2021). The court found the statute “require[d] state agencies and officials to bear the cost and burden of adducing expert testimony . . . to terminate parental rights,” 7

qualified expert witness provides the court with information concerning “the social

and cultural aspects of Indian life to diminish the risk of any cultural bias.” In re

D.S., 806 N.W.2d 458, 470 (Iowa Ct. App. 2011) (citation omitted).

The mother claims the juvenile court improperly found the State proved

beyond a reasonable doubt that “the continued custody of the child[ren] by the

child[ren]’s parent or Indian custodian is likely to result in serious emotional or

physical damage to the child[ren].”5 See Iowa Code § 232B.6(6)(a).

The mother does not dispute that Gann was a qualified expert witness.

Gann testified that returning the children to the mother “is most likely to result in

serious emotional and/or physical damage to these children.” She based her

opinion on the mother’s issues with substance abuse, unstable housing, lack of

income, and mental-health problems. Gann gave the opinion that termination of

the mother’s parental rights was in the children’s best interests. Gann noted that

the children were placed with an extended family member and stated this met the

placement preferences of ICWA.

Based on Gann’s testimony, we find the State proved beyond a reasonable

doubt “that the continued custody of the child by the child’s parent or Indian

in violation of Article I and the Tenth Amendment, which state that the federal government cannot commandeer state agencies or courts. Id. In this case we are applying Iowa Code section 232B.6(6)(a), not federal law. 5 The mother asserts the court should have made more specific factual findings to

support its ruling on this issue. When a court ruling does not adequately address an issue, a party should file a motion pursuant to Iowa Rule of Civil Procedure 1.904(2) to preserve error. In re N.W.E., 564 N.W.2d 451, 455 (Iowa Ct. App. 1997). This rule applies to termination hearings. Id. at 456 (citing In re A.R., 316 N.W.2d 887, 889 (Iowa 1982)). We conclude the issue of the specificity of the district court’s factual findings has not been preserved. See M.A.F., 679 N.W.2d at 685. 8

custodian is likely to result in serious emotional or physical damage to the child.”

See id. The evidence showed the mother had not successfully addressed her

substance-abuse problems. She did not have adequate housing for the children

to be placed in her care. Also, the mother had not addressed her mental-health

problems. We determine the provisions of section 232B.6(6)(a) were fulfilled.

B. The mother also claims the State did not present sufficient evidence

to support termination of her parental rights under section 232.116(1)(e), (f), or (h).

“We will uphold an order terminating parental rights where there is clear and

convincing evidence of the statutory grounds for termination.” In re T.S., 868

N.W.2d 425, 434 (Iowa Ct. App. 2015). “When the juvenile court orders

termination of parental rights on more than one statutory ground, we need only find

grounds to terminate on one of the sections to affirm.” Id. at 435. We will focus

on the termination of the mother’s parental rights under section 232.116(1)(f) for

F.K. and G.K. and (h) for T.Y.6

6A parent’s rights may be terminated under section 232.116(1)(f) if the court finds: (1) The child is four years of age or older. (2) The child has been adjudicated a [CINA] pursuant to section 232.96. (3) The child has been removed from the physical custody of the child’s parents for at least twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child’s parents as provided in section 232.102. Section 232.116(1)(h) provides for termination of parental rights if the court finds: (1) The child is three years of age or younger. (2) The child has been adjudicated [CINA] pursuant to section 232.96. (3) The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, 9

The district court found the mother “has transportation problems, housing

stability problems, and has tested positive for methamphetamine as recently as

March 3, 2021.” The court noted the mother’s “cooperation throughout this case

has been sporadic.” We find there is clear and convincing evidence to show the

children could not be safely returned to the mother’s care. We conclude her

parental rights were properly terminated under section 232.116(1)(f) and (h).

V. Best Interests

The mother claims termination of her parental rights is not in the children’s

best interests. In considering the best interests of children, we give “primary

consideration 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 needs of the child[ren] under section 232.116(2).” P.L., 778 N.W.2d at

41. “It is well-settled law that we cannot deprive a child of permanency after the

State has proved a ground for termination under section 232.116(1) by hoping

someday a parent will learn to be a parent and be able to provide a stable home

for the child.” Id.

We determine that termination of the mother’s parental rights is in the

children’s best interests. These proceedings started in October 2018. The mother

had ample time to address the problems that led to the removal of the children

from her care. At the time of the termination hearing, the situation had not

or for the last six consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time. 10

improved. The mother was still struggling with the same problems—substance

abuse, housing, and mental health. It is not in the children’s best interests to

further extend the case. See In re E.K., 568 N.W.2d 829, 831 (Iowa Ct. App. 1997)

(“Children simply cannot wait for responsible parenting.”). They need permanency

and stability, which can be achieved through termination of the mother’s parental

rights.

VI. Exceptions

The mother contends the district court should have decided to not terminate

her parental rights because the children are in the custody of a relative and

termination would be detrimental to the children based on the closeness of the

parent-child relationship. See Iowa Code § 232.116(3)(a), (c).

“The factors weighing against termination in section 232.116(3) are

permissive, not mandatory.” In re A.R., 932 N.W.2d 588, 591 (Iowa Ct. App. 2019)

(quoting In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App. 2011)). “The court

may exercise its discretion in deciding whether to apply the factors in section

232.116(3) to save the parent-child relationship based on the unique

circumstances of each case and the best interests of the children.” Id. (citing In re

A.M., 843 N.W.2d 100, 113 (Iowa 2014)).

We first note that the district court did not discuss the exceptions in section

232.116(3), and we question whether this issue has been preserved for our review.

See M.A.F., 679 N.W.2d at 685 (noting issues may not be raised for the first time

on appeal). If the issue was preserved, we would find the exceptions in section

232.116(3) should not be applied in this case. The juvenile proceeding has been

pending for over two years with little progress by the mother. The children need 11

the permanency of termination of parental rights. Given the ages of the children,

the lack of evidence that termination would be detrimental to the children, and the

limited progress by the mother, we determine that a permissive exception should

not be applied.

We affirm the decision of the district court.