In the Interest of K.P., Minor Child

• Court: Court of Appeals of Iowa
• Decided: February 16, 2022
• Docket: 21-1809
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-1809 Filed February 16, 2022

IN THE INTEREST OF K.P., Minor Child,

T.P., Father, Appellant,

L.P., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Mahaska County, Rose Anne

Mefford, District Associate Judge.

The father and the mother separately appeal the termination of their

parental rights to their daughter. FATHER’S APPEAL DISMISSED; AFFIRMED

ON MOTHER’S APPEAL.

Michael S. Fisher of Fisher Law Office, Oskaloosa, for appellant father.

Lynnette M. Lindgren of Faulkner, Broerman & Lindgren, Oskaloosa, for

appellant mother.

Thomas J. Miller, Attorney General, and Diane Murphy Smith, Assistant

Attorney General, for appellee State.

Denise McKelvie Gonyea of McKelvie Law Offices, Grinnell, attorney and

guardian ad litem for minor child.

Considered by Vaitheswaran, P.J., Ahlers, J. and Vogel, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022). 2

VOGEL, Senior Judge.

The father and the mother of K.P., born January 2018, separately appeal

the termination of their parental rights. We dismiss the father’s appeal and affirm

on the mother’s appeal.

I. The Father’s Delayed Appeal

We begin by discussing the father’s delayed appeal. The juvenile court filed

the order of termination on November 11, 2021. The father filed his notice of

appeal on December 3, four days after the November 29 deadline to file a notice

of appeal.1 Thus, the father’s appeal was untimely. We may grant a delayed

appeal only if three factors are proven: (1) “the parent clearly intended to appeal,”

(2) “the failure to timely perfect the appeal was outside of the parent’s control,” and

(3) “the resulting delay is no more than negligible.” In re A.B., 957 N.W.2d 280,

292 (Iowa 2021); see also In re W.T., 967 N.W. 2d 315, 322 (Iowa 2021) (affirming

the three requirements for a delayed appeal). As the father’s untimely petition is

dismissed if a delayed appeal is not granted, he bears the burden to prove the

grounds for a delayed appeal. See Iowa R. App. P. 6.904(3)(e) (“Ordinarily, the

burden of proof on an issue is upon the party who would suffer loss if the issue

were not established.”); accord Ford v. State, 138 N.W.2d 116, 143 (Iowa 1965)

(in dismissing a petition for habeas corpus as untimely, finding the incarcerated

1 Under our rules of appellate procedure, an appellant has fifteen days from the final order or judgment to file a notice of appeal in a termination-of-parental-rights proceeding. See Iowa R. App. P. 6.101(1)(a). The father’s fifteen days to appeal ran on November 26, but since it was a state holiday, the following Monday— November 29—was the filing deadline. See Iowa Code § 4.1(34) (2021) (stating when a filing deadline falls on a state holiday or the weekend, the deadline is extended until the next day the clerk’s office is open to receive the filing). 3

person “has the burden to produce evidence clearly showing that he was

prevented from proceeding according to law”).

On December 10, the father’s attorney filed a statement containing the

following, attempting to explain the delay. The attorney stated the father is

currently a prisoner of the State and incarcerated in Mount Pleasant. On

November 12, the attorney forwarded the termination order and a notice of appeal

to the father, directing him “to sign and return the Notice to my office no later than

November 26, 2021.” The attorney received no communication from the father

until December 3, when the attorney received the father’s signed notice of appeal.

He immediately filed the notice that same day. The envelope containing the

father’s signed notice was postmarked in the Quad Cities on November 29. In

asking this court to accept the father’s delayed appeal, the attorney outlined

several possible reasons for the delay: (1) it is “conceivable” that the father actually

mailed the notice well before the filing deadline; (2) the father “unequivocally

expressed his desire to appeal” by executing and returning the notice to the

attorney; (3) the prison system may have “hurdles” that delay prisoners from

receiving and sending mail; and (4) an intervening long holiday weekend.

Regarding the first factor we consider to grant a delayed appeal, the father

clearly expressed an intent to appeal by mailing his signed notice to his attorney

with a postmark by the November 29 deadline. See W.T., 967 N.W.2d at 319

(stating the parent must intend “to appeal on time”). Regarding the second factor

requiring the delay be outside the parent’s control, the father’s attorney told the

father to return the signed notice to his office by November 26. By the grace of the

long Thanksgiving holiday weekend, the attorney’s stated deadline was three days 4

before the actual filing deadline. Yet the father’s notice was not postmarked to his

attorney until November 29—the filing deadline—and did not arrive at the

attorney’s office until four days later. We have no information from the father—

either directly or communicated through his attorney—to show when he mailed the

notice or explain why he did not mail it or otherwise contact his attorney sooner.

The father’s attorney provided possible explanations for why the late filing could

be outside the father’s control. But without an explanation from the father, we only

have his attorney’s clearly well-intended attempt to explain “conceivable” reasons

for the delay. Nothing in the three-part test of a delayed appeal requires us to lay

blame for the delay at the feet of the parent’s attorney, but only that the delay was

somehow “outside of the parent’s control.” See A.B., 957 N.W.2d at 292. With no

facts beyond the mere speculation of the father’s attorney, the father has not met

his burden to show the late filing was indeed outside his control. See id. While we

do not reach the third factor, that the delay was negligible, we are skeptical that a

four-day delay would be considered no more than negligible. See A.B., 957

N.W.2d at 293 (finding a two-day delay was no more than negligible); In re C.B.,

No. 21-0814, 2021 WL 4303660, at *3 (Iowa Ct. App. Sept. 22, 2021) (finding a

three-day delay was no more than negligible); In re B.W., No. 21-1810, 2022 WL

_____, at *_ (Iowa Ct. App. Feb. 16, 2022) (“Given the expedited nature of child-

welfare appeals, three days may be pushing the limit of what can be considered

negligible.”). Because the father failed to show at least one factor, the late filing of

his notice of appeal was beyond his control, the father’s appeal is dismissed as

untimely. 5

II. Standard of Review.

We review termination-of-parental-rights proceedings de novo. In re M.W.,

876 N.W.2d 212, 219 (Iowa 2016). We are not bound by the factual findings of the

juvenile court, though we give them respectful consideration, particularly regarding

credibility determinations. Id.

Our review of termination of parental rights under Iowa Code chapter 232 is a three-step analysis. The first step is to determine whether any ground for termination under section 232.116(1) has been established. If we find that a ground for termination has been established, then we determine whether the best-interest framework as laid out in section 232.116(2) supports the termination of parental rights. Finally, if we do find that the statutory best-interest framework supports the termination of parental rights, we consider whether any exceptions in section 232.116(3) apply to preclude termination of parental rights.

Id. at 219–20 (citations omitted).

III. The Mother’s Appeal.

A. Factual background.

For many years, the mother’s adult life was in chaos. She testified her

experiences—including relationships with different paramours, years of substance

abuse, and many attempts at treatment—all “run together,” which made it difficult

for her to recall with much accuracy the specific events leading to her current

involvement with the Iowa Department of Human Services (DHS). She admitted

to using drugs in 2016 while pregnant with an older child, who since died. In

January 2018, K.P. was born, testing positive for marijuana in her system.

Voluntary services were offered to the mother. In 2019, the mother successfully

graduated from inpatient treatment. In February 2020, after concerns arose as to

mother’s intravenous use of methamphetamine, an investigation led to a founded 6

child abuse report as to the mother.2 Services were again initiated. In July, the

mother again relapsed on intravenous methamphetamine, heroin, and opiates.3

On September 2, 2020, K.P. was adjudicated as a child in need of

assistance. The mother again entered treatment, progressing well and completing

the program. For several months, the mother was successful living in the

community, working and caring for K.P. But in March 2021, the mother relapsed

with intravenous use of methamphetamine and heroin. K.P. was removed and

soon began living with her grandmother, where she has remained. The mother

again went to inpatient treatment, which was short-lived. In April, the mother was

in a car accident and arrested for operating while intoxicated. She continued

intravenous use of methamphetamine and heroin. On June 10, the mother again

entered inpatient treatment, but she left against staff advice four days later. The

most recent inpatient treatment began on September 2, after the mother admitted

to being under the influence of methamphetamine, marijuana, and heroin, with

heroin being her drug of choice. This case came on for hearing for termination of

parental rights on September 29 and October 27, 2021, after which the juvenile

court terminated the mother’s parental rights.

B. Statutory grounds.

The juvenile court found the statutory grounds for termination were met as

to the mother under both Iowa Code section 232.116(1)(h) and (l) (2021). She

2 The record contains founded child abuse reports naming the mother as the perpetrator dated: February 7, 2018; February 26, 2020; August 11, 2020; and April 9, 2021. 3 The mother tested positive for buprenorphine, clonazepam, fentanyl,

hydromorphone, morphine, cocaine, marijuana, and methamphetamine. 7

appeals the statutory grounds only under the fourth element of paragraph (h). See

Iowa Code § 232.116(1)(h)(4) (allowing the juvenile court to terminate parental

rights if it finds “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”). She does not contest the findings for termination under paragraph (l), which

allows the court to terminate parental rights if it finds all of the following:

(1) The child has been adjudicated a child in need of assistance pursuant to section 232.96 and custody has been transferred from the child’s parents for placement pursuant to section 232.102. (2) The parent has a severe substance-related disorder and presents a danger to self or others as evidence by prior acts. (3) There is clear and convincing evidence that the parent’s prognosis indicated that the child will not be able to be returned to the custody of the parent within a reasonable period of time considering the child’s age and need for a permanent home.

The juvenile court made explicit findings as to this code section, but because they

are not challenged on appeal, they are waived. We therefore affirm the juvenile

court’s findings as they support the statutory findings under Iowa Code section

232.116(l). See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (stating we need not

discuss the statutory grounds for termination when the parent does not dispute the

existence of at least one ground); Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa

1996) (“[O]ur review is confined to those propositions relied upon by the appellant

for reversal on appeal.”).

C. Best interests of the child and parental bond.

We move to the mother’s next claims, that termination is not in K.P.’s best

interests and that the closeness of the parent-child bond should outweigh

termination. See Iowa Code § 232.116(2), (3)(c); P.L.., 778 N.W.2d at 40–41. 8

Neither the juvenile court nor this court questions the close bond between the

mother and K.P. Yet, as described above, the mother continues to struggle with

substance abuse, quickly relapsing after brief sobriety despite multiple

unsuccessful attempts at treatment. The juvenile court also found the “[m]other

minimizes the depth of risk and harm she has placed the child in.” The court

concluded, “The mother cannot provide long term stability.” The record fully

supports these findings, and we agree termination is in K.P.’s best interests and

the parent-child bond does not outweigh termination.

D. Guardianship request.

The mother next faults the juvenile court for not granting a guardianship for

K.P. with the maternal grandmother. See Iowa Code § 232.116(3)(a) (providing

the court need not terminate if “[a] relative has legal custody of the child”). The

mother readily acknowledged the strong bond K.P. and the grandmother share,

noting that K.P. has spent “much of her young life with the grandmother” and the

grandmother has provided a safe and stable home for her. However, the juvenile

court made no ruling on whether a guardianship would be appropriate in this case.

Therefore, we find the issue not preserved for our review. See In re K.C., 660

N.W.2d 29, 38 (Iowa 2003) (“Even issues implicating constitutional rights must be

presented to and ruled upon by the district court in order to preserve error for

appeal.”). Moreover, even if the issue were preserved for our review, “a

guardianship is not a legally preferable alternative to termination.” In re A.S., 906

N.W.2d 467, 472 (Iowa 2018) (quoting In re B.T., 894 N.W.2d 29, 32 (Iowa Ct.

App. 2017)). 9

E. Reasonable efforts.

In seeking to have the termination reversed, the mother also claims the

State failed to provide her with reasonable reunification efforts. See Iowa Code

§ 232.102(7). While the mother states “the deficiency in services provided by DHS

is identified in the material facts section of this petition,” such claimed deficiencies

are not found anywhere in the petition. This argument is therefore waived. See In

re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (“A broad, all-encompassing argument

is insufficient to identify error in cases of de novo review.”). Furthermore, even if

the mother had identified the allegedly deficient services on appeal, the mother did

not challenge the services provided before the juvenile court in order to preserve

the issue for appeal. See In re C.H., 652 N.W.2d 144, 148 (Iowa 2002) (“In

general, if a parent fails to request other services at the proper time, the parent

waives the issue and may not later challenge it at the termination proceeding.”).

F. Additional time for reunification.

Finally, the mother claims the juvenile court should have granted her an

additional six months for reunification with K.P. See Iowa Code § 232.104(2)(b).

She acknowledged she was not ready to care for K.P. at the time of the termination

hearing. The juvenile court noted the mother “waited until the eve of termination

in this case” before restarting treatment. The mother still has significant work to

do to achieve lasting sobriety. The mother, who is now thirty years old, testified

she has been using a variety of illegal substances since she was a teenager:

marijuana since age fifteen or sixteen, opiates and benzos since age seventeen,

cocaine since age seventeen or eighteen, methamphetamine since age eighteen,

heroin since age nineteen, and intravenous substances since age nineteen. The 10

grandmother testified the mother had been at treatment facilities approximately

twenty-seven times. Since this case began, the mother had been in an inpatient

treatment facility six times. The juvenile court concluded, and we agree,

“Additional time to work toward reunification would not be appropriate because

mother has not been able to demonstrate any ability to remain stable and sober.”

K.P has been out of her mother’s care much of her life, including almost nine

months prior to the termination hearing. K.P. deserves stability and need not wait

longer for her mother to prove her ability to safely care for her daughter. See A.S.,

906 N.W.2d at 474 (“Children simply cannot wait for responsible parenting.”

(quoting In re C.K., 558 N.W.2d 170, 175 (Iowa 1997)); In re A.C., 415 N.W.2d

609, 613–14 (Iowa 1987) (“The crucial days of childhood cannot be suspended

while parents experiment with ways to face up to their own problems.”).

We affirm the juvenile court’s order, terminating the mother’s parental rights.

FATHER’S APPEAL DISMISSED; AFFIRMED ON MOTHER’S APPEAL.