IN THE COURT OF APPEALS OF IOWA
No. 20-1046 Filed November 30, 2020
IN THE INTEREST OF K.B., Minor Child,
M.B., Mother, Appellant,
T.B., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Brent Pattison, District
Associate Judge.
A mother and father separately appeal the termination of their parental
rights to their child. AFFIRMED ON BOTH APPEALS.
James W. Thornton of Thornton & Coy, PLLC, Ankeny, for appellant mother. Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, for appellant father. Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant Attorney General, for appellee State. Jesse A. Macro Jr. of Macro & Kozlowski, L.L.P., West Des Moines, attorney and guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., Greer, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020). 2
MAHAN, Senior Judge.
A mother and father separately appeal the termination of their parental
rights to their child, K.B., born in 2018. Both challenge the juvenile court’s refusal
to grant a six-month extension and argue termination was not in the child’s best
interests. The mother also challenges the court’s denial of her motion to continue
for an in-person hearing. We affirm on both appeals.
I. Background Facts and Proceedings
The mother and father each have a history of use of illegal substances since
their early teenage years. Their family came to attention of the department of
human services due to concerns about the mother’s use of methamphetamine and
heroin during her pregnancy with K.B. and after the child’s birth in September
2018.1 In November 2018, the mother and child were living with the maternal
grandmother, and the mother intended to reenter residential treatment when a spot
became available; the father was incarcerated for “drug related reasons.” The
juvenile court ordered the child to remain in the mother’s custody so long as she
continued to reside with the maternal grandmother and complied with drug
treatment. On January 2, 2019, upon the mother testing positive for
methamphetamine, the court entered an ex parte order placing the child with the
maternal grandmother and ordering the mother to vacate the home “until there is
assurance that she has begun and is active in treatment and recovery.” The child
was adjudicated in need of assistance and has remained in the grandmother’s care
since his removal from the mother’s care.
1 The department issued founded child abuse reports against the mother stemming from her drug use while caring for the newborn. 3
At the time of the dispositional hearing in March, the mother was in inpatient
treatment and the father was released on probation and in contact with the
department to establish visits with the child. At the time of the review hearing in
July, the mother had been unsuccessfully discharged from treatment and the father
was in outpatient treatment and attending supervised visits with the child. At the
time of the permanency hearing in October, the mother had successfully
completed inpatient treatment but did “not closely follow[ ] an aftercare plan” and
had tested positive for methamphetamine. The father admitted to overdosing on
heroin, which was a violation of his probation; he had thereafter entered a
treatment facility but was arrested “due to ongoing use” in the facility. The
department noted that although the parents were “engaged in services,” they had
not “demonstrated a pattern of consistent sobriety” or “made the progress
necessary in this case to believe that with additional time they would be in a healthy
place to safely and adequately care for [the child].” The court directed the State to
institute termination proceedings.
The termination hearing took place in June 2020. The record before the
juvenile court indicated the child had been removed since January 2019, and any
visits with the parents had been fully supervised. The mother was “not actively
engaged” in substance-abuse or mental-health treatment, “report[ed] staying at a
few different locations,” and had little contact with the department. The father had
been sober since his arrest on October 17, 2019, and in December 2019, he had
been admitted to the Teen Challenge program per the terms of his probation. He
was nearing the “reentry phase” of the program, which he described as “kind of a
halfway house.” His anticipated discharge date into the community is December 4
19, 2020. The father requested an extension, explaining he was “going to walk out
of this place a changed man, a complete 180,” and he believed the child could be
returned to his care upon his release.
The guardian ad litem and department caseworker recommended
termination of parental rights. The guardian ad litem noted the efforts being made
by the parents but stated “a child should not wait indefinitely for his parents to
remedy their situations, problems, deficiencies, whatever it may be, and that delay
is not always or is never a good thing for a young child.” The department noted
the child was “thriving” in his placement with the maternal grandmother, who was
“willing and able to provide [the child] permanency through adoption.”
In July 2020, the court entered its order terminating parental rights pursuant
to Iowa Code section 232.116(1)(h) (2019). The mother and father separately
appeal.
II. Standard of Review
Appellate review of termination-of-parental-rights proceedings is de novo.
In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our primary consideration is the
best interests of the child, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the
defining elements of which are the child’s safety and need for a permanent
home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011). We review the denial of a
motion to continue for an abuse of discretion, which occurs “when ‘the decision is
grounded on reasons that are clearly untenable or unreasonable,’ such as ‘when
it is based on an erroneous application of the law.’” In re A.H., ___ N.W.2d ___,
___, 2020 WL 4201762, at *3 (Iowa Ct. App. 2020) (quoting In re M.D., 921 N.W.2d
229, 232 (Iowa 2018)). 5
III. Discussion
Neither the mother nor the father challenge the sufficiency of the evidence
supporting the statutory grounds authorizing termination, so we need not address
the first step of the three-step termination framework. See In re P.L., 778 N.W.2d
33, 40 (Iowa 2010). Instead, both challenge the juvenile court’s refusal to grant a
six-month extension so they could continue working toward reunification with K.B.
and argue termination was not in the child’s best interests. The mother also
contends the court “erred in not continuing the termination hearing . . . so that the
parties could appear in person.” We address these claims in turn.
A. Additional Time
Iowa Code section 232.104(2)(b) allows the district court to continue
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IN THE COURT OF APPEALS OF IOWA
No. 20-1046 Filed November 30, 2020
IN THE INTEREST OF K.B., Minor Child,
M.B., Mother, Appellant,
T.B., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Brent Pattison, District
Associate Judge.
A mother and father separately appeal the termination of their parental
rights to their child. AFFIRMED ON BOTH APPEALS.
James W. Thornton of Thornton & Coy, PLLC, Ankeny, for appellant mother. Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, for appellant father. Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant Attorney General, for appellee State. Jesse A. Macro Jr. of Macro & Kozlowski, L.L.P., West Des Moines, attorney and guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., Greer, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020). 2
MAHAN, Senior Judge.
A mother and father separately appeal the termination of their parental
rights to their child, K.B., born in 2018. Both challenge the juvenile court’s refusal
to grant a six-month extension and argue termination was not in the child’s best
interests. The mother also challenges the court’s denial of her motion to continue
for an in-person hearing. We affirm on both appeals.
I. Background Facts and Proceedings
The mother and father each have a history of use of illegal substances since
their early teenage years. Their family came to attention of the department of
human services due to concerns about the mother’s use of methamphetamine and
heroin during her pregnancy with K.B. and after the child’s birth in September
2018.1 In November 2018, the mother and child were living with the maternal
grandmother, and the mother intended to reenter residential treatment when a spot
became available; the father was incarcerated for “drug related reasons.” The
juvenile court ordered the child to remain in the mother’s custody so long as she
continued to reside with the maternal grandmother and complied with drug
treatment. On January 2, 2019, upon the mother testing positive for
methamphetamine, the court entered an ex parte order placing the child with the
maternal grandmother and ordering the mother to vacate the home “until there is
assurance that she has begun and is active in treatment and recovery.” The child
was adjudicated in need of assistance and has remained in the grandmother’s care
since his removal from the mother’s care.
1 The department issued founded child abuse reports against the mother stemming from her drug use while caring for the newborn. 3
At the time of the dispositional hearing in March, the mother was in inpatient
treatment and the father was released on probation and in contact with the
department to establish visits with the child. At the time of the review hearing in
July, the mother had been unsuccessfully discharged from treatment and the father
was in outpatient treatment and attending supervised visits with the child. At the
time of the permanency hearing in October, the mother had successfully
completed inpatient treatment but did “not closely follow[ ] an aftercare plan” and
had tested positive for methamphetamine. The father admitted to overdosing on
heroin, which was a violation of his probation; he had thereafter entered a
treatment facility but was arrested “due to ongoing use” in the facility. The
department noted that although the parents were “engaged in services,” they had
not “demonstrated a pattern of consistent sobriety” or “made the progress
necessary in this case to believe that with additional time they would be in a healthy
place to safely and adequately care for [the child].” The court directed the State to
institute termination proceedings.
The termination hearing took place in June 2020. The record before the
juvenile court indicated the child had been removed since January 2019, and any
visits with the parents had been fully supervised. The mother was “not actively
engaged” in substance-abuse or mental-health treatment, “report[ed] staying at a
few different locations,” and had little contact with the department. The father had
been sober since his arrest on October 17, 2019, and in December 2019, he had
been admitted to the Teen Challenge program per the terms of his probation. He
was nearing the “reentry phase” of the program, which he described as “kind of a
halfway house.” His anticipated discharge date into the community is December 4
19, 2020. The father requested an extension, explaining he was “going to walk out
of this place a changed man, a complete 180,” and he believed the child could be
returned to his care upon his release.
The guardian ad litem and department caseworker recommended
termination of parental rights. The guardian ad litem noted the efforts being made
by the parents but stated “a child should not wait indefinitely for his parents to
remedy their situations, problems, deficiencies, whatever it may be, and that delay
is not always or is never a good thing for a young child.” The department noted
the child was “thriving” in his placement with the maternal grandmother, who was
“willing and able to provide [the child] permanency through adoption.”
In July 2020, the court entered its order terminating parental rights pursuant
to Iowa Code section 232.116(1)(h) (2019). The mother and father separately
appeal.
II. Standard of Review
Appellate review of termination-of-parental-rights proceedings is de novo.
In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our primary consideration is the
best interests of the child, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the
defining elements of which are the child’s safety and need for a permanent
home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011). We review the denial of a
motion to continue for an abuse of discretion, which occurs “when ‘the decision is
grounded on reasons that are clearly untenable or unreasonable,’ such as ‘when
it is based on an erroneous application of the law.’” In re A.H., ___ N.W.2d ___,
___, 2020 WL 4201762, at *3 (Iowa Ct. App. 2020) (quoting In re M.D., 921 N.W.2d
229, 232 (Iowa 2018)). 5
III. Discussion
Neither the mother nor the father challenge the sufficiency of the evidence
supporting the statutory grounds authorizing termination, so we need not address
the first step of the three-step termination framework. See In re P.L., 778 N.W.2d
33, 40 (Iowa 2010). Instead, both challenge the juvenile court’s refusal to grant a
six-month extension so they could continue working toward reunification with K.B.
and argue termination was not in the child’s best interests. The mother also
contends the court “erred in not continuing the termination hearing . . . so that the
parties could appear in person.” We address these claims in turn.
A. Additional Time
Iowa Code section 232.104(2)(b) allows the district court to continue
temporary placement of a child for six months provided the court is able to
conclude the need for removal will no longer exist at the end of the six-month
period. With regard to the mother, she had been receiving services for nearly two
years yet there had not been any resolution to the concerns initially raised. As the
juvenile court noted, the mother “did not really dispute” that the child “cannot be
returned to [her] custody . . . due to her unresolved mental-health and substance-
abuse issues, as well as her lack of overall stability.” And aside from those
concerns, the mother was inconsistent with visits and failed to engage with
caseworkers. Indeed, the juvenile court observed, “at the time of the termination
hearing, [the mother] was in a less healthy and positive place than she was when
the initial CINA petition was filed.”
With regard to the father, the court observed that he “has been in some form
of custody—jail, Bridges, Teen Challenge—related to his criminal justice system 6
involvement and substance-abuse issues, for nearly all of [K.B.]’s life.” At the time
of the termination hearing, the father was “still at least six months away” from
completing his programming in supervised setting. The father testified he had
“been through about 15, almost 20 inpatient facilities since [he] turned eighteen,”
and he was now twenty-four years old. We concur with the court’s finding that
even despite the father’s sobriety and commendable progress during his current
placement, “given his lengthy history of substance abuse and treatment episodes,
he would have to prove he could maintain his gains in supervised settings when
he returned to the community to safely parent a very young child like [K.B.].”
Unfortunately, there is little in the history of this case that would allow us to
conclude the child could be placed with either parent within the next six months.
Under these circumstances, we conclude additional time was not warranted. See
In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (“We do not gamble with the
children’s future by asking them to continuously wait for a stable biological parent,
particularly at such tender ages.”); see also P.L., 778 N.W.2d at 41 (“It is well-
settled law that we cannot deprive a child of permanency after the State has proved
a ground for termination under section 232.116(1) by hoping someday a parent will
learn to be a parent and be able to provide a stable home for the child.”).
B. Best Interests
Termination also must serve the child’s best interests. See Iowa Code
§ 232.116(2). The guardian ad litem opined there is “no[ ] doubt both parents love
[the child]” but K.B. “should not wait indefinitely for his parents to get their lives in
order.” The parents are unable to assume custody of the child now or at any time
in the foreseeable future. There is no reason to delay the child the permanency 7
he needs and deserves. For the reasons set forth above, we conclude termination
is in the child’s best interests, and no permissive statutory exception should be
applied to preclude termination.
C. Motion to Continue
The termination hearing took place on June 2, 2020, during a period of time
when in-person proceedings were not permitted in our court system due to the
COVID-19 pandemic.2 Accordingly, it was ordered to be conducted by
videoconference. On appeal, the mother contends, “Due process in this matter
dictated that the Mother and the State’s witnesses be allowed to appear in-person
to be able to testify, and to be effectively cross-examined.”3 Therefore, she claims
the court erred in not granting the motion to continue and the termination of her
parental rights “should be set aside.”
The State argues error was not preserved on the mother’s due process
claim. The termination hearing was originally scheduled for February 28, but it
was continued for scheduling reasons. On March 27, the court entered an order
rescheduling the hearing for June 2. On May 19, in response to the parents’
requests for an in-person hearing, the guardian ad litem filed a “motion to keep
current trial date,” stating in part that “[a]ny delay is not in the child’s best interests”
and the “parents do not have a right to confront a witness in a termination matter.
The [videoconference] hearing affords the parties a fair hearing and due process
is met.”
2 COVID-19 is a virus that has created an ongoing international pandemic. See A.H., ___ N.W.2d at ___, 2020 WL 4201762, at *3, n.6. 3 We observe that neither the mother nor the State called any witnesses, and the
mother did not testify. 8
Following the pretrial conference, at which the parents’ attorneys were
present, the court entered an order, stating: “Ultimately, all parties are in
agreement that the hearing can go forward on June 2 at 9:00 a.m., and are in
agreement with the hearing being held via [videoconference hearing]. A separate
order will be filed with directions for participating in the hearing.”
At the outset of the hearing on June 2, the mother’s attorney raised the issue
of the mother’s “preference to have this be an in-person hearing.” The court denied
the request, stating: “[B]ased on our discussion at the pretrial conference, the new
Supreme Court order,[4] and the length of time this case has been open, the
number of times it’s been continued, we are going to go forward today.” Despite
the mother’s vague claim at the hearing, we believe the issue of due process was
raised before and decided by the court in its order on the guardian ad litem’s
motion, so error is preserved. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa
2002).
4 On April 6, the supreme court entered an order containing the following provision: Those hearings that are set between April 6, 2020 and June 15, 2020 should either be continued until after June 15, 2020 or should ONLY be conducted by video or phone conferencing. Uncontested hearings should use remote technology. Contested hearings, such as a contested adjudication hearing or termination hearing, may be conducted via remote technology if all parties agree, and thereafter file a written waiver of personal appearance or waive such appearance on the record. If one party objects to proceeding by phone, and the juvenile court believes the matter should nonetheless go forward and not be postponed, then the court can order telephonic testimony. Iowa Supreme Ct. Supervisory Order, In the Matter of Ongoing Provisions for Coronavirus/COVID-19 Impact on Child Welfare and Juvenile Justice Youth and Families (Apr. 6, 2020), available at https://www.iowacourts.gov/collections/488/ files/1079/embedDocument/. 9
However, we find no abuse of discretion in the court’s order. “The relevant
provision from our supreme court’s order simply leaves it to the juvenile court to
decide whether the matter should proceed.” In re B.S., No. 20-0929, 2020 WL
5651693, at *2 (Iowa Ct. App. Sept. 23, 2020); accord In re K.A., No. 20-0979,
2020 WL 5946114, at *4 (Iowa Ct. App. Oct. 7, 2020). Here, the court explained
its reasons for denying the mother’s motion on the record and again in the
termination order, which included “the length of time this case has been open.”
“[W]here, as here, the limitations period has lapsed, we view termination
proceedings with a sense of urgency.”5 B.S., 2020 WL 5651693, at *2 (citing In re
C.B., 611 N.W.2d 489, 495 (Iowa 2000)). We affirm the court’s denial of the motion
to continue.
Having addressed the issues raised on the parents’ appeals, we affirm the
termination of the mother and father’s parental rights.
AFFIRMED ON BOTH APPEALS.
5 Our finding dispels the mother’s attempt to distinguish this case because “since by the hearing date of June 2, 2020, it was known that the supreme court intended to resume in-person hearings in July 2020.”