In the Interest of H.P., L.P., and L.P., Minor Children

• Court: Court of Appeals of Iowa
• Decided: July 24, 2024
• Docket: 24-0330
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0330 Filed July 24, 2024

IN THE INTEREST OF H.P., L.P., and L.P., Minor Children,

T.P., Mother, Appellant,

L.P., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Donna

Bothwell, Judge.

A father and mother together appeal the juvenile court order terminating

their parental rights. AFFIRMED.

J. Joseph Narmi of Narmi Law, Council Bluffs, for appellants mother and

father.

Brenna Bird, Attorney General, and Lisa Hynden-Jeanes, Assistant

Attorney General, for appellee State.

Eric Checketts of Checketts Law, PLC, Glenwood, attorney and guardian

ad litem for minor children.

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

TABOR, Presiding Judge.

This termination-of-parental-rights appeal involves three children: four-year-

old L.W.P., three-year-old H.M.P., and one-year-old L.T.M.P. Taylor is the mother

of all three children. Larry is the father of the youngest child.1 In their petition on

appeal, Taylor and Larry raise five claims.2 (1) The juvenile court abused its

discretion by denying their motions to continue the termination hearings. (2) The

court erred in denying their request for a different judge. (3) The State failed to

prove a ground for termination. (4) Termination was not in the children’s best

interests. (5) Exceptions preclude the need for termination. Finding no merit in

those five claims, we affirm the termination order.3

I. Facts and Prior Proceedings

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

Human Services in November 2021 when police arrested Taylor for possession of

methamphetamine and child endangerment. The two older children were

adjudicated as children in need of assistance (CINA) in January 2022 after being

1 Matthew is the father of the two older children. The juvenile court terminated his parental rights, but he does not appeal. In November 2023, Taylor and Larry had a fourth child who is not the subject of this appeal. 2 Taylor and Larry retained the same attorney who filed a joint petition on appeal

for the two parents. Because parents cannot raise issues on behalf of the other parent on appeal, we read each argument as though raised solely on behalf of the mother and/or father. See In re D.G., 704 N.W.2d 454, 460 (Iowa Ct. App. 2005). 3 We review termination-of-parental-rights proceedings de novo. In re M.D., 921

N.W.2d 229, 232 (Iowa 2018). While we are not bound by the juvenile court’s factual findings, we accord them weight, especially in assessing witness credibility. Id. Despite that de novo standard, we review the court’s denial of the parents’ motions to continue for an abuse of discretion. Id. Likewise, we will not reverse the court’s recusal decision absent an abuse of discretion. In re S.D., 671 N.W.2d 522, 528 (Iowa Ct. App. 2003). We also review any constitutional claims de novo. In re N.N.E., 752 N.W.2d 1, 6 (Iowa 2008). 3

removed from parental custody in early December 2021. They have been living

with relatives since their removal from Taylor’s custody.4

During the next few months, Taylor began outpatient drug treatment while

waiting for an inpatient placement. But the department reported that her

participation in treatment and drug-testing was inconsistent. As for inpatient

treatment, Taylor reported scheduling four different start dates but never entered

the programs. She was equally inconsistent in her attendance at supervised visits

with L.W.P. and H.M.P. But when she did show, she was attentive to their needs.

L.T.M.P. was born prematurely in November 2022. At birth, his urine tested

positive for amphetamines, and his umbilical cord blood tested positive for

methamphetamine and marijuana. With infant L.T.M.P. in her custody, Taylor was

admitted to Iowa Family Works (IFW) in Council Bluffs to receive inpatient

substance-use treatment. During her stay at IFW, Taylor had supervised visits

with the two older children, progressing from once to twice per week, as well as a

six-hour visit on the weekend.

Meanwhile, Larry told the department that he was pursuing inpatient

substance treatment as well. But he was discharged from the program after only

two days. And he also missed drug testing appointments. His stalled progress

undermined Taylor’s treatment goals too. She received an unsuccessful discharge

from her IFW inpatient program in April 2023 after being dishonest about her

whereabouts while in treatment and allowing Larry access to the children. That

4 The children were placed back with their mother briefly in April 2023 when she

was in residential treatment. 4

spring, Taylor had mixed results on drug testing. Her hair follicle test was negative,

but her sweat patch screen was positive for methamphetamine.

Despite that, in June 2023, Taylor and the children advanced to semi-

supervised visits. But in July 2023, Taylor had two positive drug screens. Because

of those tests, L.T.M.P. was removed from her custody. According to the

department case worker, Taylor never completed inpatient substance-use or

mental-health treatment.5

In August 2023, the State petitioned for termination of Taylor’s parental

rights to H.M.P. and L.W.P. under Iowa Code section 232.116(1), paragraphs (e),

(h), and (l) (2023). Three months later, the State petitioned to terminate the rights

of both Taylor and Larry to their son L.T.M.P. on the same grounds. The court set

both petitions for hearing on two dates in December. After considering the

evidence, the court granted the State’s petitions in February 2024.6 The parents

appeal together.

II. Analysis

We generally analyze termination cases in three steps. In re D.W., 791

N.W.2d 703, 706–07 (Iowa 2010). First, we decide whether the State proved any

ground for termination under Iowa Code section 232.116(1). Id. at 706. Second,

we apply the best-interests framework in section 232.116(2). Id. at 706–07. Third,

if that framework supports the State’s petition, we check whether any factors in

5 When Taylor gave birth to her fourth child in November 2023, he tested negative

for drugs. 6 The court did not terminate Taylor’s parental rights to her oldest child, L.W.P.,

under paragraph (h) because he turned four years old shortly after the State filed its termination petition and the State did not move to amend to cite paragraph (f). 5

section 232.116(3) should preclude termination. Id. at 707. The parents raise two

preliminary questions before challenging the three steps. They claim that the

juvenile court abused its discretion in refusing to continue the termination hearing

and in denying their motion for a different judge. We consider all five claims in

turn.

A. Motions to Continue

Parents’ counsel contends the juvenile court abused its discretion in

denying their two motions to continue the termination proceedings. The court set

the termination hearing for December 15 and December 22. The parents’ retained

counsel did not enter his appearance until December 8. And he could not access

the CINA files through EDMS until December 13. So he asked the court for more

time to prepare. The State resisted, noting that L.W.P. and H.M.P had been out

of their mother’s custody for over two years. And L.T.M.P. had been out of parental

care for “the majority of his young life.” The guardian ad litem (GAL) did not resist,

noting that he had “sympathy for an attorney having two days with access to a

record to prepare for a termination.”

The juvenile court recalled making it “incredibly clear” that “the parents

choosing to fire the court-appointed counsel they had a week before the

termination would not be a ground for a continuance.” The court added:

I also sympathize with an attorney not getting access, at no time on the—I think your appearance was filed on December 8—at no time on the 9th, 10th, 11th, or 12th was it brought to the Court or the clerk’s attention that the attorney didn’t have access knowing that this Court was not going to be inclined to continue it. 6

In their petition on appeal, counsel claims the court’s ruling “in essence [tied] both

hands behind [his] back, which violates the due process of the Mother and

Father.”7

A juvenile court should not grant a motion to continue unless the party

seeking more time can show good cause. Iowa R. Juv. P. 8.5. We will only reverse

a juvenile court’s denial of a continuance if the court abused its discretion. In re

A.H., 950 N.W.2d 27, 33 (Iowa Ct. App. 2020). “A court abuses its discretion when

the decision is grounded on reasons that are clearly untenable or unreasonable.”

Id. (cleaned up). When the grounds raised are non-constitutional, we only reverse

if the moving party can show prejudice. In re R.B., 832 N.W.2d 375, 378 (Iowa Ct.

App. 2013). We see no abuse of discretion in the juvenile court’s disinclination to

find good cause to delay the start of the termination hearing. As the State notes

on appeal: “both parents had competent court appointed attorneys throughout the

pendency of the CINA and [termination] cases. They made the choice to hire

private counsel on the eve of the termination hearing knowing time is of the

essence in [termination] matters.” In ruling on the motion to continue, the court

was also free to weigh the need to prevent undue delays in permanency. In re

C.W., 554 N.W.2d 279, 281 (Iowa Ct. App. 1996). The court properly exercised

its discretion in denying the parents’ first motion to continue.

Parents’ counsel filed a second motion to continue on the second day of the

termination hearing. That motion asked for a continuance because Taylor was

7 The parents also complain the termination petition on the fourth child was filed a

month before the hearing date but, because that child is not a part of this proceeding and the parents do not develop the significance of that petition to the requested continuance, we will not address the issue further. 7

“putting on a drug screen patch” that day and, in her view, “[t]he outcome of this

patch would be beneficial to all parties involved.” The motion also asserted that

no party would be prejudiced because the department was still involved with the

family after the birth of Taylor’s fourth child. The State again resisted and the GAL

took no position. The court denied the motion, but offered to keep the record open

so that counsel could submit the drug-patch results and any new substance-use

evaluation for his client.8

In their petition on appeal, the parents reiterate that no party would have

been prejudiced by granting their motion to continue. The State responds that

Taylor should not have waited until the eve of termination to take positive steps to

address her addiction. See In re K.A., 516 N.W.2d 35, 37 (Iowa Ct. App. 1994)

(examining “a parent’s past performance in determining whether a continuance of

a termination proceeding[] should be granted”).

On this record, we see no abuse of discretion in the court’s denial of the

second motion to continue. We agree with the State’s view that the motion

amounts to “no more than a general desire to have more time to do things [the

parents] should have been doing throughout the entire case.”

B. Different Judge

At the start of the termination hearing, the parents’ counsel asked the

juvenile court judge to recuse herself because she had presided over the CINA

proceedings. Counsel reasoned that it was “unfair” for the parents “to sit before

8 Taylor’s sweat testing was negative for controlled substances in the January

2024 report. And her new substance-use evaluation found that she was “in the action stage of change and at a low risk for relapse.” 8

the same judge” in both matters. The court denied the motion, noting that our

supreme court has found “that it is actually more beneficial that it’s one family, one

judge.” We review that denial for an abuse of discretion. In re S.D., 671 N.W.2d

522, 528 (Iowa Ct. App. 2003). And we find none. In rejecting a similar claim more

than a decade ago, our court noted “any knowledge gained from having presided

in the earlier termination proceeding did not require disqualification.” In re Q.A.S.,

No. 13-1182, 2013 WL 5229746, at *4 (Iowa Ct. App. Sept. 18, 2013) (interpreting

Iowa Code section 602.1606(a) on judicial disqualification).

C. Ground for Termination

The parents allege that the State failed to offer clear and convincing

evidence of the three grounds for termination in its petitions. On appeal, they cite

paragraphs (e), (h), and (l) in the issue heading but do not provide a discrete

argument contesting each ground in the body of their petition. Rather, as the State

notes, the parents’ argument is “nothing more than a litany of services they claim

to have satisfactorily completed over the course of the court’s involvement.”

Where, as here, the court terminates on more than one ground, we may

affirm on any alternative supported by the record. See In re A.B., 815 N.W.2d 764,

774 (Iowa 2012). We focus on paragraph (l). It authorizes termination when (1) the

children have been adjudicated CINA under section 232.96 and custody has been

transferred under section 232.102; (2) the parents have a severe substance-use

disorder as described by either (a) “the most current edition of the diagnostic and

statistical manual prepared by the American Psychiatric Association,” and the

parents present a danger to themselves or others as shown by prior acts or (b)

“the disorder is evidenced by continued and repeated use through the case, the 9

[parents’] refusal to obtain a substance use disorder evaluation or treatment after

being given the opportunity to do so,” and the parents present a danger to

themselves or others as shown by prior acts; and (3) there is clear and convincing

evidence that the parents’ prognoses indicates that the children will be unable to

be returned to their custody within a reasonable time considering the children’s

age and need for a permanent home. Iowa Code § 232.116(1)(l).

Both Taylor and Larry struggle with diagnoses of severe methamphetamine

use disorder. The juvenile court chronicled the mother’s history of drug use:

Taylor has continued to test positive throughout the underlying CINA actions. She tested positive for methamphetamine during her pregnancy with [L.T.M.P.] thereby exposing him to the drug and causing him to test positive at birth. While briefly back in her care in July 2023, [L.T.M.P.] again tested positive for methamphetamine at 4,843pg/mg. She continued to test positive for methamphetamine during her most recent pregnancy as well. Her drug use is a danger to her children. She has maintained no prolonged period of sobriety that would ensure she is no longer a danger to others due to her drug use. [The department case worker] correctly noted that Taylor is only now starting to address the drug concerns that started the underlying CINA actions.

The court provided a similar summary for the father:

Larry repeatedly used methamphetamine throughout the life of the case, testing positive all the way through the first day of the termination hearing. If considering no shows as positive tests, Larry has had 24 positive drug tests since January 2023. He left inpatient treatment . . . after three days. He obtained a substance abuse evaluation in May of 2023 and was recommended to complete extended outpatient treatment. However, Larry quit outpatient treatment after one individual appointment and two group sessions. While being around Larry during her pregnancy with [L.T.M.P.], Taylor and [L.T.M.P.] tested positive for methamphetamine. Again in July 2023 when Taylor was allowing Larry to be around [L.T.M.P.] without prior approval from [the department], [L.T.M.P.] tested positive for methamphetamine at an alarming amount. Larry’s drug use is a danger to [L.T.M.P.]. 10

Like the juvenile court, we find this record includes clear and convincing

evidence that the prognoses of both parents strongly suggest that the children

could not be safely returned to their custody within a reasonable time considering

their young ages and need for a permanent home. While it is encouraging that

Taylor is now making strides against her addiction, her progress is too tenuous to

risk reunification. Termination was proper under paragraph (l).

D. Best Interests of the Children

The parents next argue that termination of their parental rights is not in the

children’s best interests. Taylor and Larry stress that they both have “a very strong

bond with their children” and are attentive to their needs during visits. They also

hypothesize that these three children “may never know” their youngest sibling if

we affirm the termination-of-parental-rights order.

In assessing the children’s best interests, we consider their safety; the best

placement for furthering their long-term nurturing and growth; and their physical,

mental, and emotional condition and needs. See id. § 232.116(2). We also weigh

their integration into a foster family. See id. § 232.116(2)(b). Like the juvenile

court, we have concerns about the children’s safety if returned to the parents’

custody. The court observed: “No parent has fully followed through with the

recommendations nor maintained sobriety.” Given that lack of follow-through, the

parents are not the best placement for ensuring the children’s long-term

development.

As for their sibling connections, the parents’ concern for severing the

children’s ties with their youngest brother is too speculative to overcome the

benefits of achieving permanency for L.W.P., H.M.P., and L.T.M.P. See In re J.E., 11

723 N.W.2d 793, 800 (Iowa 2006) (noting preference to keep siblings together is

not absolute).

E. Permissive Factors

In their final claim, the parents contend the juvenile court should have

avoided termination under Iowa Code section 232.116(3), paragraphs (a) and (c).

Under paragraph (a) a court need not terminate if the children are in the legal

custody of a relative. Under paragraph (c), the court need not terminate if there is

clear and convincing evidence that ending the legal relationship would be

detrimental to the children because of their close relationship with the parents. Our

supreme court has interpreted section 232.116(3) to place the burden on the

parents to show that these permissive factors apply. See In re A.S., 906 N.W.2d

467, 476 (Iowa 2018).

Taylor contends that L.W.P. and H.M.P are in the “custody” of their aunt and

that she and the aunt have “worked together” in the children’s best interests. But

relative placement is different from relative custody. Because the children have

been in the legal custody of the department, section 232.116(3)(a) does not apply.

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

Both Taylor and Larry argue that termination of their rights will be

“absolutely devastating” to the children because of their very strong bond with their

parents. The record supports Taylor’s assertion that she has loving relationship

with the children. The case worker testified: “She interacts well with them. The

kids always come to her to seek security, and if they are hurt, go to her. They play

well together. She’s always very caring to them and provides food for them.” The

worker was less sure of Larry’s connection with his son. In the words of the case 12

worker: “It’s hard to bond with a child when there is not continual parenting, and

[they haven’t] been able to . . . because of drug usage.”

But assuming that both parents have a healthy bond with their children, it is

not enough to trigger the exception to termination under paragraph (c). The

parents “failed to provide the clear and convincing evidence necessary to show

that, on balance, that bond makes termination more detrimental than not.” See In

re W.M., 957 N.W.2d 305, 315 (Iowa 2021). As the juvenile court found, the

parents’ substance-use disorders prevented them from offering a safe and healthy

environment for their children.

AFFIRMED.