In the Interest of J.H., Minor Child

• Court: Court of Appeals of Iowa
• Decided: April 9, 2025
• Docket: 25-0006
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 25-0006 Filed April 9, 2025

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

M.H., Father, Appellant.

DUSTY LEA CLEMENTS, Guardian Ad Litem, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda,

Judge.

A father and guardian ad litem separately appeal the termination of the

father’s parental rights to his child. AFFIRMED ON BOTH APPEALS.

Larry J. Pettigrew of Pettigrew Law Firm, P.C., Newton, for appellant father.

Dusty Lea Clements of Clements Law and Mediation, Newton, attorney and

guardian ad litem for appellant minor child.

Brenna Bird, Attorney General, Mackenzie Moran and Michelle R. Becker,

Assistant Attorneys General, for appellee State.

Considered without oral argument by Ahlers, P.J., and Badding and

Buller, JJ. 2

BULLER, Judge.

The father of a child born in 2018 appeals termination of his parental rights.

The guardian ad litem (GAL) also appeals termination of the parents’ rights on the

child’s behalf.1 See In re S.O., 967 N.W.2d 198, 207 (Iowa Ct. App. 2021) (noting

the child has “a specific, personal, and legal interest in the action to terminate” the

parents’ rights). Both the father and the GAL argue a guardianship with the

maternal grandmother was in the child’s best interest. The GAL also asserts the

juvenile court erred in denying her motion for continuance of the termination

hearing when the mother failed to appear as a witness. We affirm the juvenile

court on both appeals.

Background Facts and Proceedings. The child came to the attention of

the Iowa Department of Health and Human Services (HHS) in 2023 after

allegations of the mother’s drug use that resulted in a founded child abuse

assessment. The mother tested positive for methamphetamine and cocaine, and

the father was incarcerated at the time. The juvenile court found the child was in

need of assistance and placed the child with his maternal grandmother who had

been caring for him “a good year or two” before HHS involvement. The mother

voluntarily consented to the grandmother’s guardianship of the child’s two older

half-siblings, and the grandmother frequently relied on the children’s

great-grandmother for childcare.

1 The mother’s parental rights were also terminated, but she did not file a timely

petition on appeal. Although we question whether we can grant relief to a parent who is not a party to the appeal, we in any event find the GAL’s arguments in support of the mother fail on the merits and do not warrant relief to the extent they are properly considered. 3

The father “was in and out of prison for the past four years” leading up to

this case and for fifty-seven of the eighty months of the child’s life as of trial. The

type of visitations with the father changed depending on where he was

incarcerated and never progressed beyond fully supervised. He was consistent

with phone and video visits while incarcerated but not consistently involved during

the two-and-a-half months of the case he was living at a residential facility. The

father also did not maintain good contact with HHS workers.

The father did not testify at the termination trial. He was present for the first

day of trial and requested an additional six months for reunification. But prior to

the second day of trial, he returned to jail and remained there through the duration

of the trial dates. He attended the final day of trial by videoconference. The father

rescinded his request for reunification and advocated for a guardianship with the

grandmother on that final day.

The GAL had experience with the family from acting as the GAL for the two

older half-siblings throughout separate guardianship proceedings. She agreed

with the State that grounds for termination were met but told the juvenile court:

I believe that statements have already been made that [the father] has no intent of challenging [a] guardianship. I believe that it would be in [the child]’s best interests for the Court to grant a guardianship, making [the grandmother] his legal guardian, to the same level . . . of his siblings.

She also expressed concerns that HHS initially agreed a guardianship would be in

the child’s best interests and that “termination is going to cause a lot of issues” for

the child if the grandmother becomes the child’s legal mother.

The child was well cared for by the grandmother, who had been caring for

the child for approximately three years as of trial. The grandmother wanted HHS 4

assistance to get legal authority over the child. She testified a guardianship would

be less traumatic to the child than termination of parental rights because she

“never had problems with the other guardianships” of the two half-siblings—despite

agreeing she had a “rocky relationship” with the mother—and because of the

child’s bond with the mother. But the grandmother agreed she would adopt the

child in the event of termination and was “already taking classes” to adopt.

The county attorney and HHS recommended termination of parental rights.

Both parents and the GAL requested the guardianship. And the court terminated

both parents’ rights under Iowa Code section 232.116(1)(d), (e), and (f) (2024).

The father and GAL separately appeal. Neither challenges the statutory elements,

so we bypass that step of review. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).

Best Interests. We review best-interests claims in termination of parental

rights de novo. See In re W.M., 957 N.W.2d 305, 312 (Iowa 2021). The father

and GAL both argue that a guardianship is in the child’s best interests over

termination. In our best-interests analysis, we follow section 232.116(2) and “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.”

The GAL and the father both rely on In re B.T. to reverse termination,

claiming a guardianship was preferable. 894 N.W.2d 29 (Iowa Ct. App. 2017).

The GAL claims B.T. involves “a very similar set of facts” as the current case. But

the child in B.T. was four years older than this child and better able to articulate

and understand permanency, the mother was in treatment, and the mother and

grandmother in B.T. had a “close, mature, and healthy relationship that is free of 5

conflict.” Id. at 34. That is not the case here, where the child is only six years old,

and the mother and grandmother have a “rocky relationship” and “mother-daughter

drama.” And the father here likewise does not have a comparable relationship to

the grandmother as the parent in B.T.

The juvenile court concluded it was in the child’s best interests to terminate

parental rights “rather than remain in limbo until his parents can correct their

problems, if ever.” We agree. Although the father didn’t “have any intent of trying

to challenge the guardianship later” as of trial, there is no guarantee that would

remain true given the child’s age of six. The child needs permanency, and the

grandmother has been “the permanent force in [the child’s] life.” And we agree

with the juvenile court’s reasoning that

[t]he father’s ability to care for his child is obviously affected by his recurring and current imprisonment, his indifference to exercising consistent visits with his child, and his indifference to cooperating with services. He has not been able to care for the child for over the past thirteen months (in reality, the last four years) and will not be able to do so in the near future. His problems . . . have prevented him from providing for the child’s safety, long-term nurturing and growth, and physical, mental and emotional needs, and will continue to prevent him from doing so for the foreseeable future.

Our caselaw also recognizes that “a guardianship is not a legally preferable

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

B.T., 894 N.W.2d at 32). And a guardianship requires continued court involvement

and provides less stability for the child than adoption by the grandmother. See id.

at 477–78. We find it particularly telling that, at the beginning of the termination

trial, the father requested an additional six months for the child to be returned to

his care. His request demonstrates the instability of a guardianship in this case— 6

there would be nothing preventing the father from challenging the guardianship in

the future, as soon as he is out of prison.

Last, we note the father makes a fleeting reference to the permissive

exceptions to termination in section 232.116(3) in his petition on appeal. The

father bears the burden to prove the application of any exception. Id. at 476. But

he failed to specify any of the exceptions or provide any argument in support of his

claim, and we deem it waived for failure to cite legal authority or advance

substantive argument. See Iowa Rs. App. P. 6.201(1)(d), 6.1401–Form 5

(requiring “supporting legal authority” for all issues raised); In re K.D., No. 21-0581,

2021 WL 3897419, at *2 (Iowa Ct. App. Sept. 1, 2021) (discussing these rules).

We find termination to be in the child’s best interests.

Motion for Continuance. We review a denial of a motion for continuance

for abuse of discretion. See In re M.D., 921 N.W.2d 229, 232 (Iowa 2018). The

GAL asserts the juvenile court abused its discretion in denying a motion for

continuance on the final day of trial when the mother failed to appear. When court

began more than thirty minutes late to ensure parent participation, the GAL asked

for a continuance to permit the mother to testify. The State resisted and argued

the mother had arranged transportation from a social worker and that “according

to other housemates, . . . the mother communicated nervousness and . . . ran from

the residence.” The court denied the motion because the mother was at the prior

day of trial, knew about the date for three weeks, had scheduled transportation,

and there was no guarantee “that the mother would avail herself the next time

either.” 7

From what we discern from the record and briefing, the motion for

continuance had nothing to do with the father or the termination of his parental

rights. Because termination of the mother’s parental rights is not at issue in this

appeal, and any effect of her testimony on analyzing termination of the father’s

parental rights would be collateral at best, we likely need not reach the merits of

this issue. But we do note the GAL offered no excuse below for the mother’s

absence other than it was “necessary for the court to hear from the mother.” And

the GAL has yet to specifically identify how hearing from the mother would have

tangibly affected the outcome. Under these particular circumstances, and to the

extent the merits are before us, we find no abuse of discretion in the juvenile court

denying the requested continuance and we find no prejudice that would support

appellate reversal.

AFFIRMED ON BOTH APPEALS.