In the Interest of H.G., Minor Child

• Court: Court of Appeals of Iowa
• Decided: April 10, 2024
• Docket: 24-0026
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0026 Filed April 10, 2024

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

M.R., Mother, Appellant,

A.R., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Marion County, Steven Guiter,

Judge.

A mother and father separately appeal the termination of their respective

parental rights. AFFIRMED ON BOTH APPEALS.

Bryan Webber of Carr Law Firm, P.L.C., Des Moines, for appellant mother.

Sarah E. Dewein of Cunningham & Kelso, P.L.L.C., Urbandale, for appellant

father.

Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney

General, for appellee State.

Kaitlyn C. DiMaria of DiMaria Law, PLLC, Grimes, attorney and guardian ad

litem for minor child.

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

AHLERS, Judge.

The juvenile court terminated the parental rights of the mother and father of

three-year-old H.G. The parents separately appeal. Both challenge the statutory

grounds authorizing termination, contend termination is not in the child’s best

interests, and claim the juvenile court should have applied permissive exceptions

to preclude termination and establish a guardianship instead.

Before addressing those challenges, we note several issues referenced in

the parents’ petitions on appeal that we cannot address. Both parents allude to

reasonable-effort challenges. However, our review of the record reveals neither

parent alerted the juvenile court to any perceived deficiencies in services prior to

the termination hearing, foreclosing their ability to raise a reasonable-efforts

challenge on appeal. See In re C.S., No. 23-2011, 2024 WL 707010, at *1 (Iowa

Ct. App. Feb. 21, 2024). The mother also asserts termination “violates her due

process rights and equal protection under the United States Constitution and the

Iowa Constitution.” Because she never raised these constitutional claims below,

they are not preserved for our consideration. See State v. Stone, 764 N.W.2d 545,

550 (Iowa 2009) (“We will not consider issues, even constitutional issues, which a

party did not properly raise in the district court.”). And to the extent the mother

attempts to advocate on behalf of the father, she does not have standing. See In

re A.S., No. 23-1625, 2023 WL 8449568, at *1 n.1 (Iowa Ct. App. Dec. 6, 2023).

We turn to the issues properly presented. We start by noting that we

conduct de novo review of orders terminating parental rights. See In re Z.K., 973

N.W.2d 27, 32 (Iowa 2022). Our review follows a three-step process that involves

determining if a statutory ground for termination has been established, whether 3

termination is in the child’s best interests, and whether any permissive exceptions

should be applied to preclude termination. In re A.B., 957 N.W.2d 280, 294 (Iowa

2021).

As to the father, the juvenile court found grounds authorizing termination

under Iowa Code section 232.116(1)(h) (2022). With respect to the mother, the

juvenile court found grounds authorizing termination under section 232.116(1)(e)

and (h). As the mother’s rights were terminated on multiple grounds, we affirm if

either of the grounds is supported by the record. See In re A.B., 815 N.W.2d 764,

774 (Iowa 2012) (“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.”). We turn our focus on paragraph (h), which permits

termination upon clear and convincing proof that (1) the child is three years of age

or younger; (2) the child has been adjudicated a child in need of assistance; (3) the

child has been removed from the physical custody of the parents for at least six of

the last twelve months; and (4) the child cannot be returned to the custody of the

parent. Iowa Code § 232.116(1)(h). As the juvenile court found this statutory

ground satisfied as to both parents, we address their challenges in tandem.

Both parents concede the first two elements. The mother concedes the

third element as well. The father does not. He argues that the juvenile court’s

“determination that the child met the requirements of [the third element] frustrates

the purpose behind the statute.” He reasons “[t]he purpose is not to terminate the

parent’s rights the moment the timeframe elapses.” But he does not contest that

the child has been removed from his physical custody for at least six of the last

twelve months. That is really the end of the discussion in terms of establishing the 4

third element. The third element calls for determining an objective fact, and there

is no dispute that the fact was established here. If there were some argument why

terminating rights would be unfair, it may be appropriate to assert it in some other

context—for example, whether termination is in the child’s best interests or

whether an additional six months to work toward reunification was warranted—but

such an argument would not change the objective fact comprising the third element

of termination under paragraph (h). But even ignoring the fact that the father’s

argument is misplaced in framing it as an attack on the third element, it is meritless

in this case. The child was removed from parental custody by way of a court order

in December 2021. A January 2022 adjudicatory order confirmed the child’s

removal was necessary. The child had not returned to parental custody by the

time of the termination-of-parental-rights hearing. Due to a series of continuances

granted for various reasons, that hearing did not occur until December 2023—

effectively giving the parents about an additional year beyond the minimum

timeline required by section 232.116(1)(h)(3) to work toward reunification. So

there is no question the State established the third element.

The fourth element, which both parents challenge, questions whether the

child could be safely returned to each parent’s custody at the time of the

termination hearing. See id. § 232.116(1)(h)(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.”); In re A.M., 843 N.W.2d 100, 112

(Iowa 2014) (holding that “at the present time” means at the time of the termination

hearing). 5

Regarding the mother, we agree with the juvenile court that the child cannot

be safely returned to her custody. The mother has been unwilling to participate in

any mental-health services. She refused to complete drug testing and did not

complete substance-use treatment. Behavioral indicators suggest she has been

regularly using illegal substances, and marks on her arms are indicative of

intravenous drug use. The mother admitted to a caseworker that she used

methamphetamine within a few days before the termination hearing. See In re

J.P., No. 19-1633, 2020 WL 110425, at *2 (Iowa Ct. App. Jan. 9, 2020) (“A parent’s

methamphetamine use, in itself, creates a dangerous environment for children.”).

From our review of the record, we conclude the mother is not a safe caregiver, so

the juvenile court correctly determined the child could not be returned to her

custody.

As to the father, the child cannot be safely returned to his custody either. Of

concern is the father’s failure to follow through with recommended mental-health

treatment. The father’s ability to maintain a clean home is also concerning given

that the child is too young to self-protect against hazards. When workers inspected

his home the day prior to the termination hearing, they found “many places in the

home with dog urine and/or dog feces laying around visible.” The workers also

observed that one of the father’s dogs had worms coming out of its rectum and

when it was brought to the father’s attention, he wiped them up but did not disinfect

the area. But most concerning is the father’s refusal to cut ties with the mother.

Despite his acknowledgment that the mother still uses methamphetamine, he still

permitted her to move into his home, where she continued to reside at the time of

the termination hearing. When asked if he would feel safe leaving the child alone 6

with the mother, a known methamphetamine user, he said he would. We conclude

the father lacks the necessary judgment to protect the child from unsafe

individuals, specifically the mother. We agree with the juvenile court’s conclusion

that the child cannot be safely returned to the father’s custody.

We conclude the State established a statutory ground authorizing

termination of both parents’ rights.

We next consider whether termination is in the child’s best interests. In

doing so, 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.” In re P.L., 778 N.W.2d

33, 40 (Iowa 2010) (quoting Iowa Code § 232.116(2)). “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. at 41.

We agree with the juvenile court that termination of both parents’ parental

rights is in the child’s best interests. The child is not safe in the care of either

parent. Conversely, the child’s custodians—the child’s maternal grandparents—

have provided the child with necessary safety and structure. They are also willing

to permanently integrate the child into their immediate family through adoption.

See Iowa Code § 232.116(2)(b). Termination of the parents’ parental rights is a

necessary step that must occur before that can come to fruition, and we find that

step to be in the child’s best interests.

Still, both parents argue we should apply a permissive exception to

termination and instead establish a guardianship. A parent seeking application of 7

an exception to termination has the burden to establish that exception, and the

court has discretion whether to apply the exception to preclude termination. See

A.S., 906 N.W.2d at 475–76 (recognizing a parent seeking application of a

permissive exception to termination has the burden to establish such an

exception). Both parents cite their respective bonds with the child, implicating

section 232.116(3)(c). With respect to the parents’ bonds with the child, we do not

doubt that those bonds exist and that they are significant. But neither parent has

established their respective bond with the child is so significant that termination

would be manifestly detrimental to the child, so section 232.116(3)(c) does not

apply. See In re A.B., 956 N.W.2d 162, 169 (Iowa 2021).

Both parents also point to the fact that the child is in the legal custody of the

maternal grandparents, providing a potential basis to forgo termination under

section 232.116(3)(a). Both contend that exception should be applied and a

guardianship should be established instead. Like the juvenile court, we decline to

apply this permissive exception and establish a guardianship. “[A] guardianship is

not a legally preferable alternative to termination.” In re B.T., 894 N.W.2d 29, 32

(Iowa Ct. App. 2017). And a guardianship is a particularly poor option in instances

where the child is too young to express an informed preference. In re A.S., 906

N.W.2d 467, 478 (Iowa 2018). This child was three years old at the time of

termination hearing—too young to express any informed preference—weighing

against a guardianship as a viable alternative to termination. See id. And a

caseworker testified that the child’s maternal grandparents had concerns about

serving as guardians rather than adopting the child due to anticipated interference

from the mother. Given the child’s young age, the fact that he has spent most of 8

his life in the care of his grandparents, the grandparents’ willingness to adopt, and

the grandparents’ concerns of interference from the child’s mother if a guardianship

were established in lieu of termination, we agree with the juvenile court that a

guardianship is not appropriate in this case. Like the juvenile court, we decline to

apply a permissive exception to termination with respect to either parent.

AFFIRMED ON BOTH APPEALS.