In the Interest of J.J., Minor Child

• Court: Court of Appeals of Iowa
• Decided: January 21, 2021
• Docket: 20-1512
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-1512 Filed January 21, 2021

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

S.M., Mother, Appellant,

T.J., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Clarke County, Monty Franklin,

District Associate Judge.

A mother and father separately appeal the termination of their parental

rights to their child. AFFIRMED ON BOTH APPEALS.

Shireen L. Carter of Shireen Carter Law Office, PLC, Norwalk, for appellant

mother.

Marc A. Elcock of Elcock Law Firm, PLC, Osceola, for appellant father.

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

General, for appellee State.

Tamara Knight, Greenfield, attorney and guardian ad litem for minor child.

Considered by Bower, C.J., and Vaitheswaran and Greer, JJ. 2

VAITHESWARAN, Judge.

A mother and father appeal the termination of their parental rights to their

child, born in 2017. Both concede the State proved the grounds for termination

cited by the district court. They argue (1) termination was not in the child’s best

interests and (2) the court should have invoked an exception to termination based

on the child’s placement with a relative.

I. Best Interests

The parents take issue with the district court’s finding that they

compromised the child’s safety. They assert they never harmed the child. See

Iowa Code § 232.116(2) (2020) (giving “primary consideration to the child’s safety,”

among other considerations); In re J.H., ___ N.W.2d ___, ___, 2020 WL 7413605,

at *12 (Iowa 2020). On our de novo review, we disagree.

A department of human services social worker and case manager testified

the child “came to the attention of the department . . . regarding allegations that

[the father] had physically assaulted [the mother], and then additional allegations

. . . that [the mother] was using methamphetamines.” Following an investigation,

the department issued two founded child protective assessments “for dangerous

substances in regards to [the mother] and denial of critical care” and “dangerous

substances as well as supervision concerns” with respect to the father. The child

was removed from the parents’ care shortly thereafter and remained out of their

care for fourteen months.

The department provided a variety of services to facilitate reunification. At

the time of the termination hearing, the department reported that “[u]naddressed

substance abuse, mental health concerns, domestic violence and overall instability 3

remain[ed] significant safety concerns that prevent[ed] [the child] from returning to

[parental] care.”

The department social worker reiterated that point, testifying neither parent

was “compliant or successful in any of the [requested] services.” She cited the

absence of “any documentation” that the father was “actively engaged in any

substance abuse or mental health services” and pointed to the mother’s

participation in only “seven substance abuse related appointments” in a year and

only one of five in the six weeks preceding the termination hearing. The social

worker also referenced a recent charge of domestic-abuse assault filed against the

father as well as his violation of a no-contact order issued in connection with that

criminal case. To her knowledge, neither parent engaged with a domestic-violence

treatment provider or advocate. The social worker testified, “The parents . . . had

almost a year and a half to address these issues and . . . made no real progress.”

Both parents acknowledged their inconsistent compliance with reunification

services. Their concession, together with the cited evidence, supports the district

court’s conclusion that termination was in the child’s best interests.

II. Exception to Termination

A court need not terminate a parental relationship if “[a] relative has legal

custody of the child.” Iowa Code § 232.116(3)(a). The district court declined to

invoke this permissive exception to termination. See In re A.R., 932 N.W.2d 588,

591 (Iowa Ct. App. 2019).

The district court’s decision finds support in the record. The department

social worker testified the child was placed with a relative following removal and

later “was transitioned to” the “care and custody” of other relatives who were willing 4

to serve as an adoptive placement. The employee noted that the child was “doing

very well.” While the court could have created a guardianship with the relatives in

lieu of terminating parental rights, “a guardianship is not a legally preferable

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

In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App. 2017)). Given the parents’

inconsistent compliance with reunification services, we conclude the district court

appropriately chose termination over the uncertainties created by a guardianship.

We affirm the termination of parental rights to the child.

AFFIRMED ON BOTH APPEALS.