In the Interest of G.L., Minor Child

• Court: Court of Appeals of Iowa
• Decided: March 30, 2022
• Docket: 21-1970
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-1970 Filed March 30, 2022

IN THE INTEREST OF G.L., Minor Child,

D.L., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Brent Pattison, District

Associate Judge.

A father appeals from the termination of his parental rights. AFFIRMED.

Barbara O. Hoffman, Des Moines, for appellant father.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Bo Woolman and Erin Mayfield (until withdrawal) of the Youth Law Center,

Des Moines, attorneys and guardians ad litem for minor child.

Considered by Tabor, P.J., and Greer and Ahlers, JJ. 2

GREER, Judge.

The father, D.L., had his parental rights to his child terminated in December

2021. He argues that the juvenile court should have granted him a six-month

extension, created a guardianship instead of terminating his rights, or invoked a

statutory exception to prevent termination. Because he failed to show he could

resume caring for the child full-time within six months, did not prove a guardianship

is in the child’s best interests, and did not preserve error on the statutory exception

argument, we affirm the juvenile court’s decision.

Background Facts and Proceedings.

D.L. is the father of G.L., who was nine at the time of the termination

hearing. The child’s mother has a degenerative health condition, and the father

was in prison, so the child lived with her adult half-brother on and off. The father

was released from prison in January 2019, and the child moved in with him full

time later that year. But the child was removed from the father’s care in September

2020 when the Iowa Department of Human Services (DHS) received founded

reports that the father was using methamphetamine with his paramour and that the

child had witnessed domestic violence between the two. The father was arrested

and went through drug court, which allowed him to do substance-abuse treatment.

The child was adjudicated a child in need of assistance (CINA) that October and

placed with the half-brother1 and his fiancée.

This was not the father’s first time through drug court. As the juvenile court

stated, both in the initial order for temporary removal and in the termination order,

1 This was the mother’s older child. 3

substance abuse was a reoccurring theme in the father’s life. While he seemed to

do well in structured environments, he struggled to sustain sobriety long term.

At the time of the termination hearing, the father was living in a halfway

house and had a full-time job. He was consistently attending Narcotics

Anonymous and Alcoholics Anonymous meetings and had established a sponsor.

He also completed a seventeen-week “Caring Dads” course. The social worker

testified the father was engaging in all the services appropriately. Still, the child

could not be placed with him in the halfway house, and he had at least three

months before he could establish independent housing.2 While the halfway house

allows for visitation, which the father asked to have, it would only be possible with

the drug court’s approval.

The father’s probation officer is quoted in DHS reports as saying the drug

court team felt he needed to focus on himself and his sobriety before he could

have contact with the child. As he moved through the program, though, visitation

was expected to become less restricted. Still, only therapeutic contact was

sanctioned at the time of the termination hearing. In line with this therapeutic

contact, the father wrote an accountability letter to the child to be used in her

therapy—this was the only contact between the two other than one visit while the

father was in jail. At the time of the termination hearing, the child’s therapist had

not yet reported to the social worker how the child had reacted to the letter.

2The father testified his program at the halfway house was phased, and he was on phase two of five. Each phase takes at least three months, and independent housing was not allowed until phase four. 4

Another factor preventing contact was the child’s preference—she

consistently stated she was not interested in going back to her father’s home,

seeing him, or speaking with him. The child wrote a letter to the court explaining

as much and expressing desire to stay with her brother and his fiancée. According

to the social worker’s testimony, the child is very comfortable in the home and well

cared for. She has integrated into the family and has more consistently attended

school and therapy while in their care. The couple is willing to adopt the child.

The father did not contest that he could not take over care of the child at the

time of the termination hearing. Instead, he sought either a six-month extension

or a guardianship, with the child placed with her brother. Either, he thought, would

give him a chance to reconnect with his daughter. However, the social worker

testified, and the juvenile court in its order agreed, that sufficient progress could

not be made in six months and that guardianship was not in the child’s best

interests. The juvenile court ultimately terminated the father’s parental rights under

Iowa Code section 232.116(1)(f) (2021).

Discussion.

The father challenges the juvenile court’s termination order, asserting that

he should have been granted a six-month extension, the court should have created

a guardianship, and the court should have invoked Iowa Code section

232.116(3)(a) as an exception to termination because the child was in the legal

custody of a relative. Our review of termination decisions is de novo. In re P.L.,

778 N.W.2d 33, 40 (Iowa 2010). We address each challenge in turn. 5

A. Six-month extension.

The father first argues the court did not prove the grounds for termination in

Iowa Code section 232.116(1)(f). But really, he is seeking a six-month extension

as allowed by Iowa Code section 232.104(2)(b). To do this, the parent seeking the

extension has to show that the “impediments to placing [the child] with [the parent

would] not exist in six months.” In re W.T., 967 N.W.2d 315, 323 (Iowa 2021). And

the juvenile court would have had to enter an order to “enumerate the specific

factors, conditions, or expected behavioral changes which comprise the basis for

the determination that the need for removal of the child from the child’s home will

no longer exist at the end of the additional six-month period.” Iowa Code

§ 232.104(2)(b). Our overarching concern in allowing for a delay is the child’s best

interests. W.T., 967 N.W.2d at 323; see also In re C.B., 611 N.W.2d 489, 495

(Iowa 2000) (“Once the limitation period lapses, termination proceedings must be

viewed with a sense of urgency.”). “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.” P.L., 778 N.W.2d at 39.

We applaud the father for the many steps he has taken to becoming and

remaining sober and hope that he continues in his progress. But that task had

made him unable to care for or have contact with the child for over a year by the

time of the termination hearing.3 But more important to our review, the father still

3 The strict requirements of drug court personnel impacted the father’s lack of contact with the child as the focus was that he “work on himself first,” but DHS tried to pursue visitation, appropriate first for the child but also considering the drug court limitations. 6

had a long way to go in his treatment before he could begin to reestablish

independent housing and demonstrate an ability to remain sober outside the

structured environment. See C.B., 611 N.W.2d at 495 (“Insight for the

determination of the child’s long-range best interests can be gleaned from

‘evidence of the parent’s past performance for that performance may be indicative

of the quality of the future care that parent is capable of providing.’” (citation

omitted)). Achieving stability in a structured setting is far different than addressing

challenges with drug use without that support. In the end, it is unclear when the

father’s visitations can be restored to a level where he can prove his ability to be a

successful parent for the child and if he can remain drug-free outside the structured

setting. As the father could not provide assurances that barriers to reunification

with the child would be hurdled within six-months, an extension was not

appropriate.

B. Guardianship.

The father next argues that the court should have established a

guardianship. As we have long acknowledged, guardianships are “not a legally

preferable alternative to termination.” In re A.S., 906 N.W.2d 467, 477 (Iowa 2018)

(citation omitted). They do not provide the same stability of permanency as is

available through termination. See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014)

(noting the child’s interest in a safe, permanent home); see also A.S., 906 N.W.2d

at 477–78 (explaining the limitations of a guardianship on permanency).

Permanency is important; when determining the child’s best interests, one of our

primary concerns is “the best placement for furthering the long-term nurturing and

growth of the child.” Iowa Code § 232.116(2); compare A.S., 906 N.W.2d at 477– 7

78 (explaining the limitations of a guardianship and deciding against the option),

with In re B.T., 894 N.W.2d 29, 34 (Iowa Ct. App. 2017) (allowing for a guardianship

when termination was not in the ten-year-old child’s best interests and the child

wished to maintain his relationship with his parent).

Here, the father argues a guardianship was the appropriate solution

because it would be less destructive of the parent-child relationship and would

serve as a less permanent option than termination.4 We disagree. The juvenile

court correctly noted that “a guardianship order would not establish permanency—

it would serve instead as a longer extension.” Assuming the child’s brother would

even agree to a guardianship, “[a]n 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.” In re C.K., 558 N.W.2d 170, 174 (Iowa 1997).

As stated above, this extension goes against the child’s interests in establishing a

permanent, secure home. And the father has provided no argument that a

guardianship would be in the child’s best interests. In these circumstances, where

neither the father and child nor the father and would-be guardian share a close

relationship, a guardianship would be inappropriate. See B.T., 894 N.W.2d at 34

(concluding a guardianship should be established where the parent and child

shared a close relationship, the parent and guardian “have a close, mature, and

4 Both in this section and the next of the father’s argument, he asserts that the child’s current placement with her brother could become unstable because the brother and his fiancée are not yet married. We note that he provides no proof of instability and there is ample evidence in the record both that the child wants to stay with the couple and, as the juvenile court put it, “[t]hey have done an admirable job of meeting her needs over the course of the case.” 8

healthy relationship that is free of conflict,” and where it was clear the parent and

guardian could “work together in the best interests of the child”).

C. Statutory exceptions.

Iowa Code section 232.116(3)(a) allows the court not to terminate parental

rights if a relative has legal custody of the child.5 The father is right that, because

the child is in the temporary legal custody of her brother and his fiancée, the court

could elect to use this exception. But, the exception is permissive, not

mandatory—it remains in the court’s discretion to determine whether, given the

circumstances of the family in front of them, it would be in the best interests of the

child to avoid termination. A.S., 906 N.W.2d at 475. While the burden to prove

the grounds for termination rests on the State, the burden of proving an exception

to termination rests on the parent seeking to benefit from it. A.S., 906 N.W.2d at

476.

The father presented no evidence to the juvenile court about the exception,

but it still found that “[e]ven if they had presented such evidence, after considering

[the child’s] age, the trauma she has experienced in her parents’ care, her

placement in the same home since the start of this case, her need for permanency,

5 The father also asserts that termination is unnecessary because he made a genuine effort to follow the case plan, maintain communication with the child, and establish and maintain a place of importance in the child’s life. He pulls this language from, and cites, Iowa Code section 232.116(1)(e)(3). We note that this language is not an exception, but an element of a separate statutory ground for termination. Here, the juvenile court found insufficient evidence to terminate under this section. As the language does not apply in this appeal, we address it no further. Cf. In re K.M., No. 20-1028, 2020 WL 5946404, at *2 n.3 (Iowa Ct. App. Oct. 7, 2020) (“To the extent the mother’s brief argues her parental rights should not have been terminated pursuant to Iowa Code section 232.116(1)(f), as the juvenile court did not rely on this section as a ground for termination, we need not address the same.”). 9

and the diminished attachment given the parents’ lack of consistent contact,” the

exceptions were not warranted. As the father did not raise the issue in the

termination hearing before the juvenile court, error has not been preserved. See

In re A.B., 815 N.W.2d 764, 773 (Iowa 2012) (“[T]he general rule that appellate

arguments must first be raised in the trial court applies to CINA and termination of

parental rights cases.”).

Conclusion.

Because the father has not shown that barriers to reunification would not

exist following a six-month extension, proved that a guardianship is in the child’s

best interests, nor preserved error on the statutory exceptions, we affirm the

termination of the father’s parental rights.

AFFIRMED.