IN THE COURT OF APPEALS OF IOWA
No. 18-1070 Filed September 12, 2018
IN THE INTEREST OF J.B. and O.B., Minor Children,
B.S., Mother, Appellant,
M.B., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Adam D.
Sauer, District Associate Judge.
A mother and a father separately appeal the termination of their parental
rights to their children. AFFIRMED ON BOTH APPEALS.
Crystal L. Ely of North Iowa Youth Law Center, Mason City, for appellant
mother.
Jane M. Wright, Forest City, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
David A. Grooters of Pappajohn, Shriver, Eide & Nielsen, PC, Mason City,
guardian ad litem for minor children.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2
DOYLE, Judge.
A mother and a father separately appeal the termination of their parental
rights to their children pursuant to Iowa Code section 232.116(1)(h) (2018). We
review termination proceedings de novo. See In re A.M., 843 N.W.2d 100, 110
(Iowa 2014). We are not bound by the juvenile court’s findings of fact, although
we give them weight, especially those concerning witness credibility. See id.
The parents first contend the juvenile court improperly considered
information in the child-in-need-of-assistance (CINA) file in determining clear and
convincing evidence established the grounds for termination under section
232.116(1)(h). Specifically, they claim the CINA files were not presented at trial,
the State never requested the juvenile court take judicial notice of the files, and
they did not have an opportunity to be heard on the question of whether judicial
notice should be taken. The State counters that error has not been preserved for
our review because any error alleged was never raised to the juvenile court. 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.”); In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994) (holding
a parent waives error by failing to file a timely motion to enlarge or amend the
judgment or degree to call the court’s attention to an issue that could be resolved
so as to avoid appeal). Although both parents filed motions for nunc pro tunc
orders, this was not the proper mode of redress. See Weissenburger v. Iowa Dist.
Ct., 740 N.W.2d 431, 434 (Iowa 2007) (distinguishing between a nunc pro tunc
order, which corrects a clerical error, and procedures to alter, vacate, or modify
judgments). Furthermore, the State notes that both parents deprived the juvenile 3
court of jurisdiction to rule on any error alleged by filing a notice of appeal before
any ruling was made on their motions. In re B.L., 470 N.W.2d 343, 347 (Iowa
1991) (“The general rule is that the trial court loses jurisdiction over the merits of
the controversy when an appeal is perfected.”).
Even assuming error was preserved and the juvenile court improperly took
notice of the CINA files, any error is harmless because de novo review allows us
to review the evidence admitted at the termination hearing and reach our own
conclusions. See In re A.K., 825 N.W.2d 46, 51 (Iowa 2013) (noting that “de novo
review of the evidence may promote efficiency when there is an evidentiary error
below because we can review the evidence anew, without considering the
inadmissible evidence”). In doing so, we find clear and convincing evidence
supports terminating both the mother’s and the father’s parental rights under
section 232.116(1)(h). Termination is appropriate under this section when clear
and convincing evidence establishes the following:
(1) The child is three years of age or younger. (2) The child has been adjudicated a child in need of assistance 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, 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.
Iowa Code § 232.116(1)(h). The first three elements were undoubtedly met, and
clear and convincing evidence establishes that the children could not be returned
safely to the parents’ care at the time of the termination hearing. See id.
§ 232.116(1)(h)(4) (requiring proof the child could not be returned to the parents 4
“as provided in section 232.102 at the present time”); In re D.W., 791 N.W.2d 703,
707 (Iowa 2010) (interpreting the term “at the present time” to mean “at the time of
the termination hearing”); In re M.M., 483 N.W.2d 812, 814 (Iowa 1992) (“[A] child
cannot be returned to the parent under Iowa Code section 232.102 if by doing so
the child would be exposed to any harm amounting to a new child in need of
assistance [(CINA)] adjudication.”).
The children were removed from the parents’ care in August 2016 due to
the parents’ methamphetamine use. At the termination hearing in April 2018, the
father had not completed substance-abuse treatment. He testified he had used
drugs sixteen days earlier, and he had been incarcerated for sixteen days.
Although the mother successfully completed substance-abuse treatment in
January 2018 and claims she has not used methamphetamine since entering
treatment, she continued a relationship with the father after her discharge and has
since tested positive for marijuana four times. The couple has a history of domestic
violence, and these concerns persist with a report of a domestic situation in March
2018. As a result, it is clear the children could not be safely returned to the parents’
care at the time of the termination hearing, and the burden of proof required to
terminate under section 232.116(1)(h) has been satisfied.
Each parent requests additional time to have the children returned to their
care. See Iowa Code § 232.104(2)(b) (allowing the court to continue placement of
the child for an additional six months if it is determined “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”). However, children are not equipped with pause buttons, and
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IN THE COURT OF APPEALS OF IOWA
No. 18-1070 Filed September 12, 2018
IN THE INTEREST OF J.B. and O.B., Minor Children,
B.S., Mother, Appellant,
M.B., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Adam D.
Sauer, District Associate Judge.
A mother and a father separately appeal the termination of their parental
rights to their children. AFFIRMED ON BOTH APPEALS.
Crystal L. Ely of North Iowa Youth Law Center, Mason City, for appellant
mother.
Jane M. Wright, Forest City, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
David A. Grooters of Pappajohn, Shriver, Eide & Nielsen, PC, Mason City,
guardian ad litem for minor children.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2
DOYLE, Judge.
A mother and a father separately appeal the termination of their parental
rights to their children pursuant to Iowa Code section 232.116(1)(h) (2018). We
review termination proceedings de novo. See In re A.M., 843 N.W.2d 100, 110
(Iowa 2014). We are not bound by the juvenile court’s findings of fact, although
we give them weight, especially those concerning witness credibility. See id.
The parents first contend the juvenile court improperly considered
information in the child-in-need-of-assistance (CINA) file in determining clear and
convincing evidence established the grounds for termination under section
232.116(1)(h). Specifically, they claim the CINA files were not presented at trial,
the State never requested the juvenile court take judicial notice of the files, and
they did not have an opportunity to be heard on the question of whether judicial
notice should be taken. The State counters that error has not been preserved for
our review because any error alleged was never raised to the juvenile court. 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.”); In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994) (holding
a parent waives error by failing to file a timely motion to enlarge or amend the
judgment or degree to call the court’s attention to an issue that could be resolved
so as to avoid appeal). Although both parents filed motions for nunc pro tunc
orders, this was not the proper mode of redress. See Weissenburger v. Iowa Dist.
Ct., 740 N.W.2d 431, 434 (Iowa 2007) (distinguishing between a nunc pro tunc
order, which corrects a clerical error, and procedures to alter, vacate, or modify
judgments). Furthermore, the State notes that both parents deprived the juvenile 3
court of jurisdiction to rule on any error alleged by filing a notice of appeal before
any ruling was made on their motions. In re B.L., 470 N.W.2d 343, 347 (Iowa
1991) (“The general rule is that the trial court loses jurisdiction over the merits of
the controversy when an appeal is perfected.”).
Even assuming error was preserved and the juvenile court improperly took
notice of the CINA files, any error is harmless because de novo review allows us
to review the evidence admitted at the termination hearing and reach our own
conclusions. See In re A.K., 825 N.W.2d 46, 51 (Iowa 2013) (noting that “de novo
review of the evidence may promote efficiency when there is an evidentiary error
below because we can review the evidence anew, without considering the
inadmissible evidence”). In doing so, we find clear and convincing evidence
supports terminating both the mother’s and the father’s parental rights under
section 232.116(1)(h). Termination is appropriate under this section when clear
and convincing evidence establishes the following:
(1) The child is three years of age or younger. (2) The child has been adjudicated a child in need of assistance 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, 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.
Iowa Code § 232.116(1)(h). The first three elements were undoubtedly met, and
clear and convincing evidence establishes that the children could not be returned
safely to the parents’ care at the time of the termination hearing. See id.
§ 232.116(1)(h)(4) (requiring proof the child could not be returned to the parents 4
“as provided in section 232.102 at the present time”); In re D.W., 791 N.W.2d 703,
707 (Iowa 2010) (interpreting the term “at the present time” to mean “at the time of
the termination hearing”); In re M.M., 483 N.W.2d 812, 814 (Iowa 1992) (“[A] child
cannot be returned to the parent under Iowa Code section 232.102 if by doing so
the child would be exposed to any harm amounting to a new child in need of
assistance [(CINA)] adjudication.”).
The children were removed from the parents’ care in August 2016 due to
the parents’ methamphetamine use. At the termination hearing in April 2018, the
father had not completed substance-abuse treatment. He testified he had used
drugs sixteen days earlier, and he had been incarcerated for sixteen days.
Although the mother successfully completed substance-abuse treatment in
January 2018 and claims she has not used methamphetamine since entering
treatment, she continued a relationship with the father after her discharge and has
since tested positive for marijuana four times. The couple has a history of domestic
violence, and these concerns persist with a report of a domestic situation in March
2018. As a result, it is clear the children could not be safely returned to the parents’
care at the time of the termination hearing, and the burden of proof required to
terminate under section 232.116(1)(h) has been satisfied.
Each parent requests additional time to have the children returned to their
care. See Iowa Code § 232.104(2)(b) (allowing the court to continue placement of
the child for an additional six months if it is determined “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”). However, children are not equipped with pause buttons, and
delaying their permanency in favor of the parents is contrary to the children’s best 5
interests. See A.M., 843 N.W.2d at 112 (noting children must not be deprived
permanency on the hope that someday the parent will be able to provide a stable
home); In re A.C., 415 N.W.2d 609, 614 (Iowa 1987). Once the grounds for
termination have been proved, time is of the essence. See A.C., 415 N.W.2d at
614 (“It is unnecessary to take from the children’s future any more than is
demanded by statute. Stated otherwise, plans which extend the twelve-month
period during which parents attempt to become adequate in parenting skills should
be viewed with a sense of urgency.”); see also In re R.J., 436 N.W.2d 630, 636
(Iowa 1989) (noting that once the time period for reunification set by the legislature
has expired, “patience on behalf of the parent can quickly translate into intolerable
hardship for the children”). We decline the parents’ requests to delay termination.
Finally, both parents contend the State failed to make reasonable efforts to
preserve the family by denying their requests for additional visitation with the
children. However,
the reasonable efforts requirement is not viewed as a strict substantive requirement of termination. Instead, the scope of the efforts by the [department of Human Services (DHS)] to reunify parent and child after removal impacts the burden of proving those elements of termination which require reunification efforts. The State must show reasonable efforts as a part of its ultimate proof the child cannot be safely returned to the care of a parent.
In re C.B., 611 N.W.2d 489, 493 (Iowa 2000). The DHS denied requests for
increased visitation due to the father’s lack of engagement in services. Although
the mother was informed that her continued relationship with the father would
impact her ability to be reunified with the children, she opted to continue the
relationship. Because the record shows that in spite of the efforts made to 6
preserve the family, the children could not be returned to the care of either the
mother or the father at the time of the termination hearing, we affirm.
AFFIRMED ON BOTH APPEALS.