IN THE COURT OF APPEALS OF IOWA
No. 20-1221 Filed November 30, 2020
IN THE INTEREST OF K.S., S.T., and A.T., Minor Children,
N.T., Mother, Appellant,
D.L., Father of S.T., Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cherokee County, Mary L. Timko,
Associate Juvenile Judge.
A mother and father separately appeal the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
T. Cody Farrens of Fankhauser, Farrens & Rachel, P.L.C., Sioux City, for
appellant mother.
Wally Miller and Adam Miller of Miller, Miller, Miller P.C., Cherokee, for
appellant father of S.T.
Thomas J. Miller, Attorney General, and Tabitha J. Gardner, Assistant
Attorney General, for appellee State.
Lesley D. Rynell of Juvenile Law Center, Sioux City, attorney and guardian
ad litem for minor children.
Considered by Vaitheswaran, P.J., and Mullins and May, JJ. 2
MULLINS, Judge.
A mother of three children appeals the termination of her parental rights.
She argues the removal orders for all children are deficient; contests termination
pursuant to Iowa Code section 232.116(1)(d), (f), (h), (i), and (l) (2020); and argues
termination is not in the children’s best interests. The father of one child separately
appeals the termination of his parental rights. 1 He contests termination pursuant
to Iowa Code section 232.116(1)(b), (d), (h), (i), and (l).
I. Background Facts and Proceedings
This case involves a mother of three children and the father of the middle
child. The oldest child first came to the attention of the Iowa Department of Human
Services (DHS) in March 2016. During this intervention, the oldest child was
removed from the mother’s and maternal grandmother’s care due to
methamphetamine use by both women. The mother eventually engaged in
substance-abuse treatment, and the child was returned to her custody. In the fall
of 2017, the child tested positive for methamphetamine for the first time. The child
was exposed to the substance in the maternal grandfather’s home, where the
mother and child spent time in violation of a court order that the mother and child
not see either maternal grandparent. The child was placed in foster care. The
mother’s second child was born in late 2017. The second child remained in the
mother’s custody, and the oldest child was returned to the mother’s care. In June
2018 the case was closed.
1 The father of the oldest child consented to termination of his parental rights. The father of the youngest child has been granted additional time to work toward reunification. 3
The family came to the attention of DHS for the second time in September
2018, based on allegations the mother was involved with a paramour who used
drugs and engaged in domestic violence. The mother and children began to live
with the paramour later that year and then moved into the maternal grandmother’s
home. Due to the grandmother’s history of using methamphetamine, the mother
and children created a safety plan with DHS. Both children tested positive for
methamphetamine in February 2019. The mother then failed to appear for drug
testing. The mother absconded with both children and was found in Oklahoma on
February 18, 2019. The children were returned to Iowa and placed in foster care.
The mother also returned and began to participate in services. She told providers
she was distancing herself from her abusive paramour and would not pursue a
relationship until he was sober, but she was pregnant with his child at the time.
The mother and youngest child’s father resumed contact in the summer of 2019.
Following a violent incident, the mother secured a protective order against the
father of the youngest child. The mother asked for the protective order to be
dismissed in the months following the youngest child’s birth.
In early 2020, “rumors” began to circulate that the mother was involved with
a man who was a known drug user, sex offender, and suffered from mental-health
issues. DNA tests later confirmed this man, who the mother met while participating
in drug court during the oldest child’s initial DHS intervention, was the biological
father of the middle child. The mother informed DHS this man stayed at her home
temporarily. However, when it was clear his presence in the home was a problem,
the mother told DHS she lied and it was another paramour at her home. The
middle child’s father was committed due to self-harm. He indicated the mother 4
allowed him to meet his child prior to his commitment. He testified at the
termination hearing that he did not remember making that claim. The youngest
child was also removed from the mother’s custody.
In the spring of 2020, the mother began a relationship with another man and
did not inform DHS. The couple married, and together they swore affidavits that
this man was the biological father of all three children. Both the mother and the
new husband knew the affidavits were false. In April 2020, the mother provided a
hair-stat test that was positive for methamphetamine, but a urine test from the
same day was negative. In June, the mother “was served with a forcible entry and
detainer for non-payment of rent from March, April, and May.” The mother’s
mental-health treatment provider also indicated the mother had missed three
appointments. The mother submitted to a substance-abuse evaluation in June,
but “was not necessarily forthcoming about her most recent positive test.” When
DHS updated the provider with information about the positive test, “intensive
outpatient treatment was recommended.”
The juvenile court terminated the parental rights of the mother pursuant to
Iowa Code section 232.116(1)(d), (f), (h), (i), and (l). The middle child’s father’s
parental rights were terminated pursuant to Iowa Code section 232.116(1)(b), (d),
(h), (i), and (l). They separately appeal.
II. Standard of Review
“Our review of termination of parental rights proceedings is de novo.” In re
D.W., 791 N.W.2d 703, 706 (Iowa 2010). We give weight to the juvenile court’s
factual determinations, particularly pertaining to witness credibility, but we are not
bound by them. Id. An order for termination of parental rights will be upheld on 5
clear and convincing evidence, “when there are no ‘serious or substantial doubts
as to the correctness [of] conclusions of law drawn from the evidence.’” Id. (quoting
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000)).
III. Discussion
The oldest two children were adjudicated children in need of assistance
(CINA) pursuant to Iowa Code section 232.2(c)(2), (n), and (o) (2019). The
youngest child was adjudicated CINA pursuant to section 232.2(c)(2) and (n).
A. The Mother
The mother argues that the removal order for the oldest two children is
deficient and no valid removal order exists for the youngest child. The State argues
that error has not been preserved on this issue. “The general rule that appellate
arguments must first be raised in the trial court applies to [child-in-need-of-
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IN THE COURT OF APPEALS OF IOWA
No. 20-1221 Filed November 30, 2020
IN THE INTEREST OF K.S., S.T., and A.T., Minor Children,
N.T., Mother, Appellant,
D.L., Father of S.T., Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cherokee County, Mary L. Timko,
Associate Juvenile Judge.
A mother and father separately appeal the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
T. Cody Farrens of Fankhauser, Farrens & Rachel, P.L.C., Sioux City, for
appellant mother.
Wally Miller and Adam Miller of Miller, Miller, Miller P.C., Cherokee, for
appellant father of S.T.
Thomas J. Miller, Attorney General, and Tabitha J. Gardner, Assistant
Attorney General, for appellee State.
Lesley D. Rynell of Juvenile Law Center, Sioux City, attorney and guardian
ad litem for minor children.
Considered by Vaitheswaran, P.J., and Mullins and May, JJ. 2
MULLINS, Judge.
A mother of three children appeals the termination of her parental rights.
She argues the removal orders for all children are deficient; contests termination
pursuant to Iowa Code section 232.116(1)(d), (f), (h), (i), and (l) (2020); and argues
termination is not in the children’s best interests. The father of one child separately
appeals the termination of his parental rights. 1 He contests termination pursuant
to Iowa Code section 232.116(1)(b), (d), (h), (i), and (l).
I. Background Facts and Proceedings
This case involves a mother of three children and the father of the middle
child. The oldest child first came to the attention of the Iowa Department of Human
Services (DHS) in March 2016. During this intervention, the oldest child was
removed from the mother’s and maternal grandmother’s care due to
methamphetamine use by both women. The mother eventually engaged in
substance-abuse treatment, and the child was returned to her custody. In the fall
of 2017, the child tested positive for methamphetamine for the first time. The child
was exposed to the substance in the maternal grandfather’s home, where the
mother and child spent time in violation of a court order that the mother and child
not see either maternal grandparent. The child was placed in foster care. The
mother’s second child was born in late 2017. The second child remained in the
mother’s custody, and the oldest child was returned to the mother’s care. In June
2018 the case was closed.
1 The father of the oldest child consented to termination of his parental rights. The father of the youngest child has been granted additional time to work toward reunification. 3
The family came to the attention of DHS for the second time in September
2018, based on allegations the mother was involved with a paramour who used
drugs and engaged in domestic violence. The mother and children began to live
with the paramour later that year and then moved into the maternal grandmother’s
home. Due to the grandmother’s history of using methamphetamine, the mother
and children created a safety plan with DHS. Both children tested positive for
methamphetamine in February 2019. The mother then failed to appear for drug
testing. The mother absconded with both children and was found in Oklahoma on
February 18, 2019. The children were returned to Iowa and placed in foster care.
The mother also returned and began to participate in services. She told providers
she was distancing herself from her abusive paramour and would not pursue a
relationship until he was sober, but she was pregnant with his child at the time.
The mother and youngest child’s father resumed contact in the summer of 2019.
Following a violent incident, the mother secured a protective order against the
father of the youngest child. The mother asked for the protective order to be
dismissed in the months following the youngest child’s birth.
In early 2020, “rumors” began to circulate that the mother was involved with
a man who was a known drug user, sex offender, and suffered from mental-health
issues. DNA tests later confirmed this man, who the mother met while participating
in drug court during the oldest child’s initial DHS intervention, was the biological
father of the middle child. The mother informed DHS this man stayed at her home
temporarily. However, when it was clear his presence in the home was a problem,
the mother told DHS she lied and it was another paramour at her home. The
middle child’s father was committed due to self-harm. He indicated the mother 4
allowed him to meet his child prior to his commitment. He testified at the
termination hearing that he did not remember making that claim. The youngest
child was also removed from the mother’s custody.
In the spring of 2020, the mother began a relationship with another man and
did not inform DHS. The couple married, and together they swore affidavits that
this man was the biological father of all three children. Both the mother and the
new husband knew the affidavits were false. In April 2020, the mother provided a
hair-stat test that was positive for methamphetamine, but a urine test from the
same day was negative. In June, the mother “was served with a forcible entry and
detainer for non-payment of rent from March, April, and May.” The mother’s
mental-health treatment provider also indicated the mother had missed three
appointments. The mother submitted to a substance-abuse evaluation in June,
but “was not necessarily forthcoming about her most recent positive test.” When
DHS updated the provider with information about the positive test, “intensive
outpatient treatment was recommended.”
The juvenile court terminated the parental rights of the mother pursuant to
Iowa Code section 232.116(1)(d), (f), (h), (i), and (l). The middle child’s father’s
parental rights were terminated pursuant to Iowa Code section 232.116(1)(b), (d),
(h), (i), and (l). They separately appeal.
II. Standard of Review
“Our review of termination of parental rights proceedings is de novo.” In re
D.W., 791 N.W.2d 703, 706 (Iowa 2010). We give weight to the juvenile court’s
factual determinations, particularly pertaining to witness credibility, but we are not
bound by them. Id. An order for termination of parental rights will be upheld on 5
clear and convincing evidence, “when there are no ‘serious or substantial doubts
as to the correctness [of] conclusions of law drawn from the evidence.’” Id. (quoting
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000)).
III. Discussion
The oldest two children were adjudicated children in need of assistance
(CINA) pursuant to Iowa Code section 232.2(c)(2), (n), and (o) (2019). The
youngest child was adjudicated CINA pursuant to section 232.2(c)(2) and (n).
A. The Mother
The mother argues that the removal order for the oldest two children is
deficient and no valid removal order exists for the youngest child. The State argues
that error has not been preserved on this issue. “The general rule that appellate
arguments must first be raised in the trial court applies to [child-in-need-of-
assistance] and termination of parental rights cases.” In re A.B., 815 N.W.2d 764,
773 (Iowa 2012); accord In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994). We find
no record of an insufficient-order issue being raised before the juvenile court.
Accordingly, we conclude this issue is not preserved for our review. See A.M.H.,
516 N.W.2d at 872. Furthermore, once a child has been placed in the custody of
DHS pursuant to a dispositional order, error in a prior removal order becomes
moot. See A.M.H., 516 N.W.2d at 871 (finding alleged error in ex parte removal
order was moot upon entry of dispositional order placing child in DHS custody).
The mother next challenges the evidence supporting each ground for
termination of her parental rights and argues termination is not in the best interests
of the children. “On appeal, we may affirm the juvenile court’s termination order
on any ground that we find supported by clear and convincing evidence.” D.W., 6
791 N.W.2d at 707. Thus, if we affirm termination of the mother’s parental rights
to each child under any one of the statutes in the juvenile court order, that will be
sufficient to sustain termination. See id.
The mother’s parental rights to the oldest child were terminated pursuant to
Iowa Code section 232.116(1)(f) (2020), which allows for termination when:
(1) The child is four years of age or older. (2) The child has been adjudicated [CINA] pursuant to section 232.96. (3) The child has been removed from the physical custody of the child’s parents for at least twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than 30 days. (4) There is clear and convincing evidence at the present time the child cannot be returned to the custody of the child’s parents as provided in section 232.102.
The mother’s parental rights to the two younger children were terminated pursuant
to section 232.116(1)(h), which authorizes termination when:
(1) The child is three years of age or younger. (2) The child has been adjudicated [CINA] pursuant to section 232.96. (3) The child had been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days. (4) There is 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.
Id. § 232.116(1)(h).
The oldest two children were adjudicated in need of assistance following
allegations the children were neglected due to the mother’s use of
methamphetamine while parenting. Drug tests performed on the two children were
positive for the drug. The mother allowed both of her parents to supervise the
children during the period DHS was involved with the family even though she was 7
aware of the grandparents’ methamphetamine use. The home the mother shared
with the children prior to removal was also inappropriate, as it had no running
water, “toilets were flushed with the use of a large jug of water,” and the only heat
available was due to numerous space heaters. At the time the youngest child was
adjudicated in need of assistance, following adjudication of the older two siblings,
there was a protective order in place between the mother and the youngest child’s
father. The protective order was predicated on the father’s history of “substance
abuse, domestic violence, and inappropriate supervision.”
At the time of the termination hearing, the mother had yet to address her
substance-abuse issues following the positive hair-stat test in April 2020 and her
most recent substance-abuse evaluation. The mother also failed to prioritize her
children over the men in her life, evidenced by her dishonesty regarding the
paternity of her children, the identity of men present in her home, and secret
marriage to a man with a history of substance abuse at the time of termination.
The mother also testified at the time of termination that a writ of removal had been
filed to evict her from her home. She testified that her husband’s family helped her
find a two-bedroom rental home and that his family was supportive, but she also
testified she would likely be seeking a dissolution in the near future.
The mother’s argument focuses on the final element of termination pursuant
to both section 232.116(1)(f) and (h), requiring “clear and convincing evidence that
the child[ren] cannot be returned to the custody of the child’s parents as provided
in section 232.102.” Id. § 232.116(1)(f)(4), (h)(4). The mother has had several
opportunities to engage in services for substance abuse and domestic violence
and to prioritize her children. She has failed to do so. The record shows the 8
mother was offered or received services but the circumstances that led to
adjudication continue to exist and the children cannot be returned to the mother’s
custody. Termination pursuant to Iowa Code section 232.116(1)(f) and (h) is
supported by clear and convincing evidence.
The mother also argues termination is not in the best interests of the
children. However, the mother continues to have unaddressed substance-abuse
issues and has an extensive history of prioritizing relationships with inappropriate
paramours. Even at the time of termination, the mother’s testimony wavered on
her decision to divorce her husband, who was incarcerated due to drug issues.
These facts cannot permit a finding her custody is “the best placement for
furthering the long-term nurturing and growth of the child, and to the physical,
mental, and emotional needs of the child.” In re P.L., 778 N.W.2d 33, 41 (Iowa
2010). Accordingly, we affirm termination of the mother’s parental rights.
B. The Father of the Middle Child
The child’s father also challenges the evidence supporting each statutory
ground utilized for the termination of his parental rights. We need only find clear
and convincing evidence supporting one statutory provision to sustain termination.
D.W., 791 N.W.2d at 707.
The child at issue was born in 2017. The child’s father became aware that
he was the biological father in October 2019. He chose to not participate in
services at that time because he “was unsure whether or not he wanted to be
involved in services and [the child]’s life due to missing a substantial amount of
[the child]’s life.” The father was advised to keep in touch with DHS and alert the
agency if and when he decided to participate in services. In January 2020, DHS 9
was made aware that the father had been introduced to the child outside of DHS
supervision and had also been interacting with the other children. The father
became involved in the juvenile court, which took judicial notice of his prior juvenile
court involvement for another child. The father’s issues in the two cases are nearly
identical. The father has a history of untreated substance-abuse and mental-
health issues, and he is a registered sex offender. Throughout the pendency of
the father’s involvement with this child, he has again failed to address his
substance-abuse and mental-health issues. The father has also had three sex
offender registration violations, and the juvenile court was made aware of a recent
allegation of assault with intent to commit sexual abuse against the father.
The juvenile court found the child was adjudicated “after the finding that [the
child] was neglected as a result of the actions or omissions of one or both parents
and that the court has previously adjudicated a child who is a member of the same
family, . . . to be a” CINA. The father was offered services for his history of
substance-abuse and mental-health issues after paternity tests proved he was the
biological father of the child. He was also offered services to promote positive
general life skills. At the time of termination, the father was unemployed and had
no driver’s license. He acknowledged his interaction with telehealth mental-health
services was inconsistent and blamed his remote location and lack of technological
resources throughout the COVID-19 pandemic. The father participated in a
substance-abuse evaluation the day before he testified and argued his verbal
commitment to complete the recommended treatment should weigh in his favor.
The father also testified he had an appointment for medication management the
day after the termination trial and verbally committed to taking any prescribed 10
medications. The father had numerous criminal charges pending at the time of
termination, including the three sex offender registry violations, one charge of
operating a vehicle while intoxicated, and one drug possession charge. He
acknowledged the possibility he could be sentenced to incarceration and testified
his family could care for the child during his confinement.
The father also targets the final element of section 232.116(1)(h). Thus, we
must examine whether “there is clear and convincing evidence the child could not
be returned to the parents as provided in section 232.102 at the present time.”
Iowa Code § 232.116(1)(h)(4).
The father in this case needs to engage in mental-health and substance-
abuse treatment. At the time of the termination hearing, his pending criminal
charges left his ability to be a custodial parent in question. We acknowledge the
father’s desire to engage in services at the time of termination, but eleventh hour
commitments to complete services in the future are insufficient to overcome the
facts at hand. We will not force this child to wait any longer for permanency. See
P.L., 778 N.W.2d at 41. At the time of the termination hearing, clear and convincing
evidence was presented—that the child could not be returned to the father at the
present time—to support termination pursuant to Iowa Code section 232.116(1)(h).
IV. Conclusion
We affirm the termination of both parents’ parental rights.
AFFIRMED ON BOTH APPEALS.