In the Interest of G.G., A.U. and K.G., Minor Children

• Court: Court of Appeals of Iowa
• Decided: January 11, 2023
• Docket: 22-1347
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1347 Filed January 11, 2023

IN THE INTEREST OF G.G., A.U. and K.G., Minor Children,

B.A., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Union County, Monty Franklin,

District Associate Judge.

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

Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, for appellant

mother.

Brenna Bird, Attorney General, and Ellen Ramsey-Kacena (until

withdrawal) and Mary A. Triick, Assistant Attorneys General, for appellee State.

Meggen Weeks, Afton, attorney and guardian ad litem for minor children.

Considered by Vaitheswaran, P.J., and Ahlers and Buller, JJ. 2

BULLER, Judge.

The mother appeals following termination of her parental rights to A.U. (born

2006), G.G. (born 2008), and K.G. (born 2011). The record details the mother’s

substantial struggles with substance abuse and mental health, as well as the

dysfunctional home environment she provided for these children. In resolving this

appeal, we find the statutory elements of termination were met, reject additional

claims made by the mother, and affirm.

I. Background Facts and Proceedings

This family first came to the attention of the Iowa Department of Health and

Human Services (HHS) in October 2020, when the mother refused to seek

necessary mental-health treatment for one of the children. HHS also suspected

controlled-substance abuse, but this was not confirmed until 2021, when the

mother came to one of the children’s schools under the influence—and with her

paramour passed out in the front of her car. The children were removed from the

home in March 2021 due to the mother’s and paramour’s use of

methamphetamine, and the children were adjudicated as children in need of

assistance (CINA).

The mother and paramour were ordered to complete mental-health and

substance-abuse treatment, but neither successfully completed a program. During

the life of the CINA cases and subsequent termination, the mother tested positive

for methamphetamine on three different occasions and the paramour at least once.

The mother made some strides toward treatment in the months immediately

preceding termination, but she still had not completed a program or shown

consistent progress as of the termination hearing. The juvenile court also 3

expressed well-grounded concerns about the mother’s honesty with treatment

providers.

The paramour was incarcerated for a portion of the CINA proceedings and

was a significant source of conflict and instability in the home. In addition to the

documented methamphetamine use, the juvenile court found that the paramour

and mother “fought almost continuously and at times [the mother] would take the

children and leave the home and sleep with the children in their car at a park” due

to fighting. The juvenile court further found that the mother’s dysfunctional

relationship with the paramour had traumatized the children, which the mother fails

to recognize.

None of the children have been in the mother’s custody since March 2021.

According to HHS, the mother had not seen the children in person during the

approximate fourteen months leading up to termination. The juvenile court found

the children were so “alienated” from the mother that they essentially refused to

have contact with her. At the time of termination, the guardian ad litem reported

that all of the children were “in a really good place now” and strongly desired that

they not be returned to the mother’s custody.

II. Jurisdiction

The supreme court issued an order inviting the parties to file jurisdictional

statements regarding whether the notice of appeal in this matter was timely filed.

The supreme court then submitted that question to our court for resolution. The

mother filed a statement arguing she intended to timely appeal all of the

terminations, but that a clerical error as to one of the case numbers rendered one

notice untimely. The State did not file a response to the supreme court’s order but 4

did address the delayed-appeal issue in its response to the petition on appeal. In

any event, we would be required to decide the jurisdictional question even without

adversarial briefing. See Crowell v. State Pub. Def., 845 N.W.2d 676, 681 (Iowa

2014) (“[A]n appellate court has responsibility sua sponte to police its own

jurisdiction.”).

We are bound by the supreme court’s recent decisions concerning delayed

appeals in juvenile cases. See In re A.B., 957 N.W.2d 280, 289 n.2 (Iowa 2021);

In re W.M., 957 N.W.2d 305, 316–17 (Iowa 2021). “[A] delayed appeal is allowed

‘only where the parent clearly intended to appeal,’ the ‘failure to timely perfect the

appeal was outside of the parent’s control,’ and the delay was ‘no more than

negligible.’” In re W.T., 967 N.W.2d 315, 322 (Iowa 2021) (quoting A.B., 957

N.W.2d at 292). The record tends to support appellate counsel’s assertion

regarding the incorrect case number. We find the mother’s delay was due to a

clerical error by counsel that was no more than negligible and therefore conclude,

under controlling case law, that we have jurisdiction over the appeal.

III. Error Preservation or Waiver

The State argues that error was not preserved as to the statutory grounds

for termination but agrees error was preserved as to the request for additional time,

the bond exception, and the best interests of the children. The relevant exchange

in the transcript, elicited when the court inquired of the mother’s lawyer, reads as

follows:

On behalf of my client, we aren’t contesting -- but as the evidence indicated, my client would ask that we give her the additional four months left that would have been given in an extension of six months giving her four additional months to continue 5

the treatment and the services that she finds herself actively engaged in.

(Because neither party sought relief under Iowa Rule of Appellate Procedure 6.807

seeking to correct the record, we must assume the two dashes in the transcript

reflect an em-dash, rather than an omission by the court reporter.) We note that

only asking for an extension, rather than resisting the statutory grounds, was

consistent with the strategy suggested by counsel’s questions at the hearing; none

of the questions furthered any challenge to the statutory elements supporting

termination. Last, we observe that there are no pleadings in the file that indicate

the mother challenged the statutory grounds for termination, rather than only

seeking the extension.

There is some tension in our cases as to whether the normal rules of error

preservation apply in this context, or whether the mother could have waived her

claims. Compare In re C.H.-B., No. 18-1246, 2018 WL 4627709, at *1 (Iowa Ct.

App. Sept. 26, 2018) (“[S]ufficiency of evidence sustaining any finding may be

challenged on appeal from judgment following a bench trial even though the point

was not raised in the trial court.”), with In re E.W., No. 22-0604, 2022 WL 2824733,

at *1 (Iowa Ct. App. July 20, 2022) (finding the appellate court could not reach an

unpreserved claim and noting, “Although it may be framed as a failure to preserve

error, the failure to contest termination may also be properly deemed waiver of the

challenge.”), and In re M.L.H., No. 16-1216, 2016 WL 4803999, at *1 (Iowa Ct.

App. Sept. 14, 2016) (“Although our prior cases have framed the issue as one

of error preservation, it may be more accurate to deem the father’s failure to

contest termination in the juvenile court as waiver.”). We need not untangle the 6

tension in the case law to resolve this appeal, and we therefore assume error was

preserved and that the claim was not waived, and we proceed to the merits. See

State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999) (bypassing error-preservation

concern and proceeding to the merits).

IV. Standard of Review

We generally review an order to terminate parental rights de novo. In re

Z.K., 973 N.W.2d 27, 32 (Iowa 2022). “We are not bound by the juvenile court’s

findings of fact, but we do give them weight, especially in assessing the credibility

of witnesses.” Id. (quoting In re D.W., 791 N.W.2d 703, 706 (Iowa 2010)).

V. Statutory Elements

When parental rights are terminated under multiple statutory grounds, we

need only find clear and convincing evidence on one ground to affirm. In re S.R.,

600 N.W.2d 63, 64 (Iowa Ct. App. 1999). Here, we find it necessary to reach only

Iowa Code section 232.116(1)(e) (2022), which primarily requires proof the mother

failed to “maintain[ ] significant and meaningful contact with the child[ren].” The

HHS case manager testified the mother had no “face-to-face contact with the

children” from the time of their “removal in March of 2021” through the termination

hearing in May of 2022 and “had minimal video-conference visits with them during

that time frame.” Based on her testimony, we conclude the State proved that

termination was warranted under Iowa Code section 232.116(1)(e).

VI. Additional Time

The mother also claims the juvenile court erred in not granting her additional

time to “correct the situation and resume care of the child.” Like the juvenile court,

we reject this argument. To justify the grant of additional time, a parent is required 7

to prove that the need for removal “will no longer exist at the end of the additional

six-month period.” Iowa Code § 232.104(2)(b) (2022). The mother did not carry

this burden.

The undisputed record evidence indicates that the mother had yet to

complete a mental-health or substance-abuse program during the life of these

cases. The mother also did not contest that she had no in-person contact with her

children in the approximately fourteen months leading up to termination. She has

persisted in her dysfunctional and unhealthy relationship with the paramour and

presently resides in a one-bedroom apartment with no plan in place to

accommodate the return of any child to her custody. Last, the mother has not had

any contact with the children’s schools, teachers, or therapists to make realistic

strides toward parenting the children.

As our court has observed before, “The crucial days of childhood cannot be

suspended while parents experiment with ways to face up to their own problems.”

In re D.A., 506 N.W.2d 478, 479 (Iowa Ct. App. 1993) (citation omitted). We, like

the juvenile court, find no reason to believe that the need for termination would

have been eliminated after four months of additional time. These children deserve

permanency, and the mother’s last-minute efforts did not justify an extension.

VII. The Bond Exception

Although not a model of clarity, the mother’s petition on appeal appears to

invoke the permissive bond exception codified at Iowa Code section 232.116(3)(c).

We, like the juvenile court, find the record does not support this exception and we

decline to apply it. 8

The mother bears the burden of proof for a permissive exception. In re

A.S., 906 N.W.2d 467, 476 (Iowa 2018). Yet she offered no independent evidence

at the termination hearing and the record includes no discernible evidence that she

has any significant bond with these children, let alone a positive one that would

overpower the other considerations demonstrating termination is in the children’s

best interests.

The record evidence actually demonstrates the lack of any bond. As found

by the juvenile court, “Any parent-child relationship between [the mother] and the

children that may have been in existence prior to the children’s removal has been

totally destroyed by [the mother’s] actions and/or lack of action to improve her

situation, and none of the children have any desire to work on reinstating the

parent-child relationship.” We agree with this finding on de novo review and

decline to apply the bond exception as requested by the mother.

VIII. Best Interests of the Children

The mother’s final challenge is to whether termination is in the best interests

of the children. On our de novo review, we agree with the juvenile court that

termination is appropriate and serves the children’s best interests.

We find that the mother’s claim on appeal that she has “consistently shown

a strong motivation to be reunited with her child[ren]” is divorced from reality and

not supported by her conduct during the CINA and resulting termination cases.

The children had been out of the mother’s custody for about fourteen months at

the date of termination, and the mother made little progress during that time. The

children, on the other hand, have progressed significantly and have improved

mental health in their new placements. 9

We are required to consider the quality of care the mother would provide if

the children were returned to her care, and we see little reason to believe that

environment would be any better today than it was when the CINAs were initiated.

See In re J.H., 952 N.W.2d 157, 171 (Iowa 2020) ("[T]he parents’ past performance

. . . may indicate the quality of care the parent is capable of providing in the future.”

(citation omitted)). Termination is in the best interests of these children.

AFFIRMED.