IN THE COURT OF APPEALS OF IOWA
No. 23-1661 Filed January 24, 2024
IN THE INTEREST OF K.P., Minor Child,
C.D., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Brent Pattison, District
Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Britt Gagne of Gagne Law Office, Des Moines, for appellant mother.
Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney
General, for appellee State.
Shireen L. Carter of Juvenile Public Defender, Des Moines, attorney and
guardian ad litem for minor child.
Considered by Greer, P.J., and Ahlers and Buller, JJ. 2
BULLER, Judge.
An incarcerated mother appeals the termination of her parental rights to
K.P. (born 2019). About a year after K.P. was born, the mother left K.P. with
paternal grandparents before she was jailed in a pending criminal case. In total,
the mother’s criminal history included convictions for drug offenses, misdemeanor
theft, fleeing custody, and the probation violation that led to her prison sentence.
The Iowa Department of Health and Human Services (HHS) became
involved in 2022, while the mother was in a work-release facility. The mother
agreed to a safety plan by which K.P. would stay with the paternal grandparents,
but the grandfather’s drug use later led to formal removal. By the time of the formal
removal, the mother had absconded from work release, relapsed on
methamphetamine, and was evading an arrest warrant. K.P. was eventually
adjudicated a child in need of assistance and placed in foster care. By the time of
the disposition hearing, the mother was in jail. And by the review hearing, she was
in prison—where she remained as of the termination trial, with a release date well
past the permanency guidelines.
The mother’s substance-abuse history included frequent
methamphetamine use, less frequent marijuana use, and (according to her) one-
time use of heroin—with methamphetamine use “daily” at its peak. The mother
reported her only lengthy periods of sobriety since age eighteen have been while
incarcerated.
Although the mother did not successfully complete any drug-treatment or
mental-health programs before prison, she has taken advantage of all or nearly all
programming available to her while incarcerated. She also had positive weekly 3
visits with K.P. at the prison. On an occasion recent to the termination trial, she
arranged to celebrate K.P.’s birthday with cupcakes, ice cream, and root beer.
The mother hoped for parole within approximately six months following the
termination trial, but that was not guaranteed. She also acknowledged that, for
more than two years, she had not had unsupervised visits—or any home visits—
with K.P., given her incarceration. And she candidly explained to K.P.’s guardian
ad litem (GAL) on cross-examination that, while she was asking the court for more
time, she understood “it’s not fair for [K.P.] because he’s young and sense of
stability is what’s needed for them at that age.” She strongly and repeatedly, both
orally and in writing, expressed to the court her desire to reunify with K.P.
An HHS worker testified that, even if the mother was paroled as she hoped,
she would need to demonstrate a period of sobriety in the community before she
was a safe placement. The worker also emphasized the mother had been on
warrant status for a significant period and left K.P. with the grandparents even
before that. The worker also testified K.P. was doing well in his placement, with
an “astronomical” improvement in his speech abilities from the time of removal to
present. And the worker generally agreed the mother had met case-plan
expectations to the extent possible while incarcerated.
The juvenile court credited the mother for offering “very honest, thoughtful,
and heartfelt kind of statements about what’s going on and what you need.” The
court found from the mother’s testimony that “it [was] obvious [the mother] loves
[K.P] and regrets her decisions that led to her incarceration.” The court also
recognized the mother’s candor in acknowledging she failed to rehabilitate in the
past, despite promising she will do better in the future. And the court noted that all 4
parties, including the mother, agreed the foster parents were providing excellent
care for the child and could provide a safe and stable home if parental rights were
terminated.
At trial, the State and HHS recommended termination of parental rights. As
did K.P.’s combined GAL and attorney. Like the juvenile court, the GAL credited
the mother’s forthright testimony but emphasized K.P. could not be safely returned
now or within another six months. The GAL also described how she appreciated
the mother’s honest answer that K.P. should not have to wait for stability.
After considering the evidence and recommendations, the juvenile court
terminated the mother’s parental rights to K.P. (The court also terminated the
father’s parental rights, but they are not at issue here.) The mother filed an
untimely appeal, and the supreme court granted a delayed appeal before
transferring the case to our court for resolution.
We review termination-of-parental-rights proceedings de novo. In re
D.W., 791 N.W.2d 703, 706 (Iowa 2010). “We are not bound by the juvenile court’s
findings of fact, but we do give them weight, especially in assessing the credibility
of witnesses.” Id.
In her petition on appeal, the mother concedes the grounds for termination
under Iowa Code section 232.116(1)(f) (2023). But she goes on to complain the
juvenile court “fail[ed] to take [her] at her word regarding her ability to be successful
in remaining substance free when released and in the community.” This is no basis
for reversal. A fact finder is free to believe all, some, or none of any witness’s
testimony. Cf. State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993) (“The jury is
free to believe or disbelieve any testimony as it chooses and to give weight to the 5
evidence as in its judgment such evidence should receive.”). And thus the juvenile
court was entitled to doubt the mother’s speculation about future sobriety and
believe the HHS worker’s testimony the mother would need to demonstrate a
period of sobriety in the community after parole before she could safely provide
unsupervised care. Our cases similarly recognize a parent without progression to
unsupervised visits is not likely to safely resume immediate care of a child. See,
e.g., In re C.N., No. 19-1861, 2020 WL 567283, at *1 (Iowa Ct. App. Feb. 5, 2020)
(“[The mother] never progressed to unsupervised visits or trial home visits. Without
this necessary progression, we cannot say the children could have returned to the
mother’s care.”).
To the extent the mother intended to make a best-interests challenge, we
question whether the issue heading and argument in her petition adequately
present the issue for our review. Assuming the issue is before us, we consider
“the child’s safety,” “the best placement for furthering the long-term nurturing and
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IN THE COURT OF APPEALS OF IOWA
No. 23-1661 Filed January 24, 2024
IN THE INTEREST OF K.P., Minor Child,
C.D., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Brent Pattison, District
Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Britt Gagne of Gagne Law Office, Des Moines, for appellant mother.
Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney
General, for appellee State.
Shireen L. Carter of Juvenile Public Defender, Des Moines, attorney and
guardian ad litem for minor child.
Considered by Greer, P.J., and Ahlers and Buller, JJ. 2
BULLER, Judge.
An incarcerated mother appeals the termination of her parental rights to
K.P. (born 2019). About a year after K.P. was born, the mother left K.P. with
paternal grandparents before she was jailed in a pending criminal case. In total,
the mother’s criminal history included convictions for drug offenses, misdemeanor
theft, fleeing custody, and the probation violation that led to her prison sentence.
The Iowa Department of Health and Human Services (HHS) became
involved in 2022, while the mother was in a work-release facility. The mother
agreed to a safety plan by which K.P. would stay with the paternal grandparents,
but the grandfather’s drug use later led to formal removal. By the time of the formal
removal, the mother had absconded from work release, relapsed on
methamphetamine, and was evading an arrest warrant. K.P. was eventually
adjudicated a child in need of assistance and placed in foster care. By the time of
the disposition hearing, the mother was in jail. And by the review hearing, she was
in prison—where she remained as of the termination trial, with a release date well
past the permanency guidelines.
The mother’s substance-abuse history included frequent
methamphetamine use, less frequent marijuana use, and (according to her) one-
time use of heroin—with methamphetamine use “daily” at its peak. The mother
reported her only lengthy periods of sobriety since age eighteen have been while
incarcerated.
Although the mother did not successfully complete any drug-treatment or
mental-health programs before prison, she has taken advantage of all or nearly all
programming available to her while incarcerated. She also had positive weekly 3
visits with K.P. at the prison. On an occasion recent to the termination trial, she
arranged to celebrate K.P.’s birthday with cupcakes, ice cream, and root beer.
The mother hoped for parole within approximately six months following the
termination trial, but that was not guaranteed. She also acknowledged that, for
more than two years, she had not had unsupervised visits—or any home visits—
with K.P., given her incarceration. And she candidly explained to K.P.’s guardian
ad litem (GAL) on cross-examination that, while she was asking the court for more
time, she understood “it’s not fair for [K.P.] because he’s young and sense of
stability is what’s needed for them at that age.” She strongly and repeatedly, both
orally and in writing, expressed to the court her desire to reunify with K.P.
An HHS worker testified that, even if the mother was paroled as she hoped,
she would need to demonstrate a period of sobriety in the community before she
was a safe placement. The worker also emphasized the mother had been on
warrant status for a significant period and left K.P. with the grandparents even
before that. The worker also testified K.P. was doing well in his placement, with
an “astronomical” improvement in his speech abilities from the time of removal to
present. And the worker generally agreed the mother had met case-plan
expectations to the extent possible while incarcerated.
The juvenile court credited the mother for offering “very honest, thoughtful,
and heartfelt kind of statements about what’s going on and what you need.” The
court found from the mother’s testimony that “it [was] obvious [the mother] loves
[K.P] and regrets her decisions that led to her incarceration.” The court also
recognized the mother’s candor in acknowledging she failed to rehabilitate in the
past, despite promising she will do better in the future. And the court noted that all 4
parties, including the mother, agreed the foster parents were providing excellent
care for the child and could provide a safe and stable home if parental rights were
terminated.
At trial, the State and HHS recommended termination of parental rights. As
did K.P.’s combined GAL and attorney. Like the juvenile court, the GAL credited
the mother’s forthright testimony but emphasized K.P. could not be safely returned
now or within another six months. The GAL also described how she appreciated
the mother’s honest answer that K.P. should not have to wait for stability.
After considering the evidence and recommendations, the juvenile court
terminated the mother’s parental rights to K.P. (The court also terminated the
father’s parental rights, but they are not at issue here.) The mother filed an
untimely appeal, and the supreme court granted a delayed appeal before
transferring the case to our court for resolution.
We review termination-of-parental-rights proceedings de novo. In re
D.W., 791 N.W.2d 703, 706 (Iowa 2010). “We are not bound by the juvenile court’s
findings of fact, but we do give them weight, especially in assessing the credibility
of witnesses.” Id.
In her petition on appeal, the mother concedes the grounds for termination
under Iowa Code section 232.116(1)(f) (2023). But she goes on to complain the
juvenile court “fail[ed] to take [her] at her word regarding her ability to be successful
in remaining substance free when released and in the community.” This is no basis
for reversal. A fact finder is free to believe all, some, or none of any witness’s
testimony. Cf. State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993) (“The jury is
free to believe or disbelieve any testimony as it chooses and to give weight to the 5
evidence as in its judgment such evidence should receive.”). And thus the juvenile
court was entitled to doubt the mother’s speculation about future sobriety and
believe the HHS worker’s testimony the mother would need to demonstrate a
period of sobriety in the community after parole before she could safely provide
unsupervised care. Our cases similarly recognize a parent without progression to
unsupervised visits is not likely to safely resume immediate care of a child. See,
e.g., In re C.N., No. 19-1861, 2020 WL 567283, at *1 (Iowa Ct. App. Feb. 5, 2020)
(“[The mother] never progressed to unsupervised visits or trial home visits. Without
this necessary progression, we cannot say the children could have returned to the
mother’s care.”).
To the extent the mother intended to make a best-interests challenge, we
question whether the issue heading and argument in her petition adequately
present the issue for our review. Assuming the issue is before us, we consider
“the child’s safety,” “the best placement for furthering the long-term nurturing and
growth of the child,” and “the physical, mental, and emotional condition and needs
of the child.” Iowa Code § 232.116(2). Our de novo review of the record convinces
us termination is in the best interests of K.P. given the mother’s incarceration, her
inability to immediately resume care even after release, and K.P. being out of her
care the majority of his life. See id. § 232.116(2)(a) (noting we may weigh whether
the parent’s ability to provide for the child has been impacted by the parent’s
“imprisonment for a felony”). If the mother had not left K.P. to the grandparents
while facing incarceration and had not chosen to evade arrest and use
methamphetamine rather than reunite when given the opportunity, this case might
have been a closer question. We also recognize all parties agree K.P. is well- 6
integrated into the foster family, which facilitates connections with K.P.’s siblings.
See id. § 232.116(2)(b). We share the juvenile court’s view K.P. “should not have
to wait longer for permanency” and termination is in K.P.’s best interests. See In
re P.L., 778 N.W.2d 33, 41 (Iowa 2010) (“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.”).
The mother also asserts her bond with K.P. should thwart termination.
Section 232.116(3)(c) allows the juvenile court to decline termination if it “would be
detrimental to the child at the time due to the closeness of the parent-child
relationship.” A parent resisting termination has the burden to prove this
permissive exception by clear and convincing evidence, and our case law
recognizes that—without more—neither a parent’s love nor the mere existence of
a bond is enough to prevent termination. See In re A.B., 956 N.W.2d 162, 169–70
(Iowa 2021); D.W., 791 N.W.2d at 709. We agree with the mother she has a bond
with K.P. But we also agree with the juvenile court’s observation that any bond
was undermined by the mother leaving then-one-year-old K.P. with the
grandparents even before HHS involvement, and that damage was compounded
by the mother’s absences due to jail, prison, and evasion of law enforcement while
she had an active warrant. We consider the bond in context of the unique
circumstances of the case and K.P.’s best interests. See In re M.W., 876
N.W.2d 212, 225 (Iowa 2016). Any potential detriment caused to K.P. by severing
the bond is outweighed by the need for stability, particularly in light of K.P. thriving
in foster care. We affirm the juvenile court’s decision to not apply this exception. 7
Last, we acknowledge the State’s response proactively arguing the
mother’s petition on appeal did not adequately raise an issue related to a six-month
extension or establishing a guardianship in lieu of termination. We have carefully
reviewed the mother’s petition and conclude neither of those issues is adequately
briefed so as to warrant review by our court. We do not fault the State for its
briefing, given the potential consequences of leaving an issue unaddressed. But,
as we have held before, “sprinkled mentions of an issue” are insufficient to raise
legal claims for our consideration. In re J.R., No. 22-1470, 2023 WL 2148760, at
*3 (Iowa Ct. App. Feb. 22, 2023); accord In re B.D., No. 23-0105, 2023 WL
2671958, at *1 (Iowa Ct. App. Mar. 23, 2023).
AFFIRMED.