In the Interest of J.M. and C.M., Minor Children

• Court: Court of Appeals of Iowa
• Decided: November 30, 2020
• Docket: 20-1045
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-1045 Filed November 30, 2020

IN THE INTEREST OF J.M. and C.M., Minor Children,

M.P., Mother, Appellant,

S.M., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,

District Associate Judge.

A father and mother separately appeal the termination of their parental

rights to two children. AFFIRMED ON BOTH APPEALS.

Cole J. Mayer of Macro & Kozlowski, L.L.P., West Des Moines, for appellant

mother.

Tyler Phelan of Borseth Law Office, Altoona, for appellant father.

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

General, for appellee State.

Karl Wolle of Juvenile Public Defender’s Office, Des Moines, attorney and

guardian ad litem for minor children.

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

VAITHESWARAN, Judge.

A father and mother separately appeal the termination of their parental

rights to two children, born in 2010 and 2011. The children came to the attention

of the department of human services in 2019 after their highly-intoxicated mother

strangled one of them. The children were removed and adjudicated in need of

assistance. The case proceeded to termination during the COVID-19 pandemic.

As a result, the termination hearing was held virtually by authorization of the

supreme court.

The juvenile court terminated parental rights pursuant to several provisions.

See Iowa Code § 232.116(1)(d), (f), (i) (2020). The court also found that

termination of parental rights was in the children’s best interests and the statutory

exceptions to termination were inapplicable. See id. § 232.116(2), (3). Both

parents appealed.

I. Father

The children’s father was incarcerated throughout the proceedings. He did

not expect to be released until 2023.

The father concedes the State proved that the children could not be

returned to his custody at the time of the termination hearing. See id.

§ 232.116(1)(f). He argues the court should have declined to terminate his

parental rights and should have placed the children in a guardianship so he could

have ongoing contact with them. In that context, he also asserts termination was

not in the children’s best interests and exceptions to termination should have been

invoked. 3

“[A] guardianship is not a legally preferable alternative to termination.” In re

A.S., 906 N.W.2d 467, 477 (Iowa 2018) (citation omitted). “Although a

guardianship may provide some permanency, it does not necessarily provide

stability for the child.” In re R.S.R., No. 10-1858, 2011 WL 441680, at *4 (Iowa Ct.

App. Feb. 9, 2011). “So long as a parent’s rights remain intact, the parent can

challenge the guardianship and seek return of the child to the parent’s custody.”

Id.

The father sought to have the children placed in a guardianship with their

maternal grandfather while preserving his parental rights. The department

supported a transfer of the children to the grandfather’s care but did not support

maintaining the father’s parental rights. In a department employee’s view, the

children “need[ed] to know where they [were] going to be permanently.”

On our de novo review, we agree with the employee’s assessment. The

father was not slated to be released from prison for several years, and he failed to

maintain a relationship with them for about half their lives. Given the upheavals

they had already experienced, they required a stable and permanent living

arrangement. As the children’s guardian ad litem stated, “I believe that these kids,

whatever happens, that they need certainty, that they need an answer and that

they need an answer as soon as possible.”

We conclude termination of the father’s parental rights was in the children’s

best interests, the court appropriately denied his request to invoke an exception to

termination, and the creation of a guardianship without termination was not

warranted. 4

II. Mother

Preliminarily, the mother contends due process required an in-person

termination hearing. This court recently held otherwise, considering “additional

safeguards” that were employed to protect the parents’ rights, as in this case. See

In re A.H., ___ N.W.2d___, ___, No. 20-0654, 2020 WL 4201762 at *5–9 (Iowa Ct.

App. July 22, 2020).

The mother next contends the State failed to prove the grounds for

termination. She admitted she “grossly underreported” her alcohol consumption

“through the near entirety of this case.” While she testified she did not “stay

intoxicated every single day,” she said she “absolutely” did drink and her last drink

was “maybe a week” before the termination hearing. She also conceded missing

multiple breath screenings for her probation officer and providing multiple positive

screens. Her violations were so numerous that her probation officer recommended

revocation of her deferred judgment on the charge resulting from the strangulation

and admittance into an inpatient treatment program at a women’s correctional

facility. On our de novo review, we agree with the juvenile court that the children

could not be returned to the mother’s custody. See Iowa Code § 232.116(1)(f)(4).

This brings us to the mother’s contention that termination was not in the

children’s best interests. See id. § 232.116(2). The mother’s untreated addiction

compromised the safety of one of the children in 2019. Over the ensuing fifteen

months, there was scant indication that the mother seriously worked toward

sobriety. At the termination hearing, she admitted she “definitely” needed

additional treatment. In light of her concession and the continuing threat to the 5

children’s safety if she did not embrace a treatment regimen, we conclude

termination was in the children’s best interests.

We turn to the mother’s request for additional time. The department

reported that the mother was “offered mental health, domestic violence support

services and substance abuse services during the life of the case, but [did] little to

get the children back in her care.” The department employee overseeing the case

testified: “I don’t think she’s really taken any steps seriously until about a month

before these proceedings started.” Although her recent acceptance of and

willingness to address her addiction was a positive step, the department employee

testified, “[S]he has a long way to go yet . . . with her sobriety.” On our de novo

review, we conclude additional time was not warranted. See R.S.R., 2011 WL

441680, at *4 (“From our review of the record, including the mother’s past inability

to avoid using illegal drugs, even when pregnant and in substance abuse treatment

and facing termination of her parental rights, we conclude the juvenile court did not

abuse its discretion in refusing to give the mother an additional six months to

achieve reunification with the child.”).

We are left with the mother’s contention that the juvenile court should have

invoked an exception to termination. See Iowa Code § 232.116(3). The court

addressed each of the statutory exceptions and elected to not apply any of them.

We concur in the court’s thorough analysis of those exceptions.

We affirm the termination of the parents’ rights to the children.

AFFIRMED ON BOTH APPEALS.