In the Interest of L.B., Minor Child

• Court: Court of Appeals of Iowa
• Decided: January 24, 2024
• Docket: 23-1892
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1892 Filed January 24, 2024

IN THE INTEREST OF L.B., Minor Child,

K.P., Mother, Appellant,

D.B., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Linn County, Cynthia S. Finley,

District Associate Judge.

Two parents separately appeal the termination of their parental rights.

AFFIRMED ON BOTH APPEALS.

David R. Fiester, Cedar Rapids, for appellant mother.

Alexander S. Momany of Howes Law Firm, P.C., Cedar Rapids, for

appellant father.

Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney

General, for appellee State.

Julie Gunderson Trachta of Linn County Advocate, Cedar Rapids, attorney

and guardian ad litem for minor child.

Considered by Ahlers, P.J., and Badding and Buller, JJ. 2

BULLER, Judge.

The mother and father of L.B. (born 2021) separately appeal termination of

their parental rights. The mother challenges one of the statutory elements and

asserts her bond with the child should preclude termination. The father also

argues the permissive bond exception and makes other largely undeveloped

claims. Guided by the juvenile court’s credibility findings, the parents’ history of

false statements and deception, and the continued danger posed by domestic

abuse, we affirm on both appeals.

I. Background Facts and Proceedings

In March 2022, the father was charged with and later convicted of domestic

abuse assault—second offense for assaulting the mother. A no-contact order

(NCO) was entered prohibiting the parents from any contact with each other. The

Iowa Department of Health and Human Services (HHS) became involved later that

month, when a deputy sheriff arrested both parents, who were together in the same

car despite the NCO. The father was arrested for violating the NCO and

possessing controlled substances—third offense (marijuana and cocaine), and the

mother was arrested for violating the NCO and unlawfully possessing prescription

drugs (Oxycontin). L.B., then about five months old, was also in the car.

HHS removed L.B. from her parents’ custody and placed her with her

maternal grandmother. L.B. tested positive for methamphetamine and

tetrahydrocannabinol (better known as “THC”) on a hair test in early April, and the

juvenile court adjudicated her a child in need of assistance (CINA). The parents

refused to provide a social history for L.B., and the court ordered them to do so at

the dispositional hearing. The pair were also instructed to complete substance- 3

abuse evaluations and comply with all treatment recommendations as well as

random drug testing. The court ordered separate visitation to keep the parents

apart, based on the history of NCO violations and violence perpetrated by the

father.

Despite the NCO, the parents lived together at L.B.’s paternal

grandmother’s home. An altercation between the parents in late April led to the

paternal grandmother calling police and officers arresting the father for violating

the NCO. During that police investigation, the father falsely claimed he was not

living with the mother or spending time with her. Around this time, HHS removed

the father’s other children from his custody due to the issues in this case and a

pending harassment charge against a family member. During this other HHS

assessment, those children reported drug use and domestic violence by the father,

as well as the father possessing a firearm despite his felony convictions. The

father initially participated in services for that case, but he later told HHS he was

“done” and wanted to terminate his rights.

Law enforcement arrested the parents again at the end of June following

another traffic stop. The mother was charged with another violation of the NCO,

and the father was charged with violating the NCO and possessing marijuana with

intent to deliver.

By that September, the parents’ visitation with L.B. had not progressed

beyond full supervision. And the pair were still in a relationship. Based on the lack

of progress toward reunification, the district court directed the State to file for

termination of parental rights. 4

The parents claimed to separate in late fall. The mother reported to HHS

they were no longer together, but the father still called the mother his “fiancé”

during a mental-health evaluation. The criminal NCO was lifted in September, but

in October the father let the air out of the mother’s car tires, making her late to a

scheduled visit. The juvenile court imposed its own NCO after the tire incident,

and the mother told the court she and the father were no longer together.

In late December, the mother reported she had no contact with the father

beyond small-talk while they were at the drug-testing facility. But HHS then

received reports the mother and father were together at WalMart, where the father

assaulted her in the parking lot. By January 2023, the mother progressed to semi-

supervised visits with L.B. But the reported contacts between the mother and

father were so frequent that L.B.’s guardian ad litem (GAL) considered

recommending the mother’s visits regress to fully supervised, as the GAL was

worried the mother would allow the father to have unauthorized contact with L.B.

That spring, the father told HHS he would not participate in any further

services and later text-messaged the HHS worker he “want[ed] to terminate [his]

rights on all the kids.” He then quit attending visits and stopped participating in

services. During that same timeframe, the mother progressed to unsupervised

visits, and the court continued the termination trial to allow more time for progress

toward reunification.

Shortly after that continuance, HHS received additional reports that the

father had attended at least one visit in violation of the juvenile court’s NCO. In

July, the GAL received a report that the father was present for at least one more

visit, again in violation of the NCO. There were also multiple other reports that the 5

mother and father were spending time together, including from one of the mother’s

other children and from the GAL observing the mother’s car at the father’s home.

The mother’s other child said the mother instructed him “not to tell,” but he was so

upset and frightened he told anyway. The mother continued to deny contact with

the father but also canceled a weekend overnight visit, claiming she had to attend

a work trip. The mother regressed to fully supervised visits due to concerns by

HHS and the GAL about continued prohibited contact between the parents.

These concerns turned out to be well-founded. At trial, both parents made

significant admissions.1 In the words of the juvenile court, “they essentially

admitted to deceiving the Court and all parties about their relationship, their contact

with each other, and allowing unauthorized contact between [the father] and [L.B.].”

The parents maintained their relationship was now safe and free of violence or

unlawful drug use, but the juvenile court did not believe them:

The Court is unable to find the testimony of the parents credible in any way. They have consistently lied to all parties in this case. [The mother] went so far as to provide what she now admits is a forged hotel receipt to cover up the fact that she chose to forgo weekend overnight visitation with her child to secretly go to Chicago with [the father] for a dog show, all the while claiming to all parties that she was required to travel . . for work. [The father] testified that, throughout the case, despite all claims to the contrary, he and [the mother] were together as a couple for the entire time, with the exception of approximately one month.

1 Through counsel, the father attempted to invoke his right against self- incrimination to avoid discussing his numerous violations of the criminal- and juvenile-court NCOs. The juvenile court ordered “that the State would not file any contempt actions based on any information [testified to] in this matter.” We express no opinion on the propriety of such an order and note the father does not challenge it on appeal. 6

In the father’s words, he and the mother knowingly violated the NCOs because

“internally we knew that that’s what our daughter needed.” He expressed no regret

over his actions. There was also evidence the parents kept “tabs” on each other

with a shared iCloud account throughout the duration of the juvenile cases.

In his testimony, the father could not explain why L.B. tested positive for

methamphetamine as an infant. He also acknowledged he had many opportunities

to be honest with the court but failed to do so. And he described recently engaging

in mental-health and domestic-violence services, including completion of the Iowa

Domestic Abuse Program (IDAP) as part of his criminal sentence. He admitted to

additional criminal history, including animal cruelty, “several” charges for domestic

violence that resulted in at least three convictions, first- and third-degree

harassment convictions, and two criminal NCO violations. And he agreed his own

mother reported he abused her, but he said she “mistakenly” sought elder-abuse

relief from the courts.

For her part, the mother also testified she had many opportunities to tell the

truth about her continued relationship with the father. She admitted forging a hotel

receipt as part of the scheme to deceive HHS and the court about the weekend

visit she claimed to miss for work but actually spent in Chicago with the father. But

she did not explain why she continued to lie to the lawyers, the court, service

providers, and her own family. She also described conceiving a child with the

father during a time she claimed to have no contact with him. At one point, she

also told the court she did not consider herself a victim of domestic violence, even

though the father pled guilty to assaulting her and she agreed he let the air out of

her tires to punish or control her. Despite the history of abuse, the mother claimed 7

her relationship with the father was “good” and she had no concerns about his

anger or temper. And she, like the father, claimed to not know how L.B. was

exposed to methamphetamine.

The HHS worker testified L.B. could not be safely returned to the custody

of either parent as of trial or in the immediate future. And HHS’s primary concern

was continued domestic violence. The worker testified this concern was magnified

by the parents’ dishonesty. As of trial, both parents had only fully supervised

visitation, despite two prior extensions to work toward reunification.

According to the HHS worker, the mother continued to place her relationship

with the father above L.B.’s safety. By way of example, the worker emphasized

that the mother was on the verge of trial home placement when she canceled her

weekend overnight visit. Instead, the mother chose a weekend with the father over

that opportunity and forged a receipt to conceal her conduct. The HHS worker was

also concerned that, because the parents were so successful at hiding their

relationship, they may also be hiding ongoing domestic violence. In the HHS

worker’s view, L.B. was just as much a CINA at the time of trial as she was when

removed.

Meanwhile, L.B. was doing well in placement with her maternal

grandmother, who was a licensed foster parent and willing to adopt. According to

HHS, the grandmother was supportive of the mother and hoped she would be

successful. But the grandmother also had continued concerns about L.B.’s safety

if she were returned to the mother’s care, largely based on the father’s history of

violence. From her observations, the GAL reported a close bond between L.B.

and her grandmother, as well as cousins who frequently visited the home. The 8

GAL also relayed the grandmother’s concern that the mother was unable to place

her child’s needs above her own.

The State and HHS recommended termination of both parents’ rights. The

GAL also recommended termination, tempered with the observation that this was

a “sad case.” The GAL shared she wished the parents had made different choices

instead of lying about their relationship and sabotaging potential reunification.

The juvenile court terminated both parents’ parental rights pursuant to Iowa

Code section 232.116(1)(h) (2022). The parents separately appeal.

II. Standard of Review

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

D.W., 791 N.W.2d 703, 706 (Iowa 2010). “[W]e may affirm the juvenile court’s

termination order on any ground that we find supported by clear and convincing

evidence.” Id. at 707. “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. at 706.

III. Discussion

The mother challenges one of the statutory elements and urges the

permissive-bond exception. The father does not contest the statutory elements,

but he also urges that permissive exception—with other claims distinct from the

mother’s. We consider each parent’s arguments separately.

A. The Mother’s Challenge to Statutory Elements

The juvenile court terminated the mother’s parental rights under Iowa Code

section 232.116(1)(h), and the mother challenges only the fourth and final element:

whether “[t]here is clear and convincing evidence that the child cannot be returned 9

to the custody of the child’s parents . . . at the present time.” Iowa Code

§ 232.116(1)(h)(4). Under our case law, this section requires proof the child could

not be “safely returned” to the parent’s custody. E.g., In re A.S., 906

N.W.2d 467, 473 (Iowa 2018).

On our de novo review, we agree with the juvenile court and the HHS

worker’s testimony that L.B. is in as much danger today as when she was

adjudicated a CINA. The mother has no insight regarding the danger posed by

her relationship with the father, as evidenced by her secretly continuing the

relationship and allowing the father to see L.B. amidst additional reports of violence

and controlling behavior—like letting the air out of her tires. Because of her age,

L.B. relies entirely on adults for protection, and the mother lacks protective capacity

not only for herself but also for her child. We have little reason to think the mother

would leave to protect L.B. if the father resumed his long pattern of domestic

abuse. See In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (“[A] good

prediction of the future conduct of a parent is to look at the past conduct.”). And

even if the father confined his abuse to the mother rather than the child, this is also

a harm we must guard against. See In re Marriage of Brainard, 523

N.W.2d 611, 615 (Iowa Ct. App. 1994) (“Children raised in homes touched by

domestic abuse are often left with deep scars, revealed in the form of increased

anxiety, insecurity and a greater likelihood for later problems in interpersonal

relationships.”). We affirm the juvenile court’s finding there was clear and

convincing evidence L.B. could not be safely returned to the mother’s custody as

of trial. Cf. In re N.G., No. 23-0097, 2023 WL 2669845, at *4 (Iowa Ct. App. Mar. 10

29, 2023) (finding a mother’s “lie[s] about domestic violence . . . directly impact[ed]

the safety of the home”).

Last, while it is true the mother made some positive strides during the case

by engaging with services and maintaining stable employment and housing, these

steps forward are all overshadowed by her campaign of deception to continue her

relationship with the father and ignore the impact of domestic violence. We agree

with the juvenile court that, despite many opportunities to choose otherwise, the

mother continues to elevate her relationship with the abusive father above her

relationship with L.B. We affirm termination on the statutory elements.

B. The Mother’s Permissive Bond-Exception Claim

Section 232.116(3) includes certain permissive exceptions that allow the

juvenile court to decline termination despite evidence otherwise satisfying the

statutory elements. One of these exceptions 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.” Iowa Code § 232.116(3)(c). 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.

In re A.B., 956 N.W.2d 162, 169–70 (Iowa 2021); D.W., 791 N.W.2d at 709.

We question whether the juvenile court substantively considered and ruled

on this issue below. But the court ruling contained this terse boilerplate: “the Court

has considered each of the listed exceptions and find that none need be applied

in this matter.” We assume without deciding the issue was preserved and address

the merits. 11

On this record, it seems uncontested there is a bond between mother and

child. But it’s similarly clear the mother repeatedly chose her relationship with the

father over her bond with the child, despite criminal- and juvenile-court NCOs

prohibiting contact. In any event, whatever the strength of the bond, we weigh it

against the considerations that support termination. See D.W., 791 N.W.2d at 709.

We find the mother failed to prove by clear and convincing evidence that any

detriment that may flow from severing the bond outweighs the need for stability

and safety granted by termination. While the mother loves her child, she chose to

continue her relationship with the father and ignore the very real danger posed by

domestic violence. We decline to apply the permissive-bond exception for the

mother.

C. The Father’s Permissive Bond-Exception Claim

The father also appears to urge the permissive-bond exception. But his

argument mixes in claims about the mother’s bond. To the extent he urges the

bond between mother and child should have thwarted termination, he lacks

standing to make that challenge and—in any event—we rejected it on the merits

in the preceding division. See In re D.G., 704 N.W.2d 454, 460 (Iowa Ct. App.

2005) (applying the principle that one parent cannot assert facts or legal positions

pertaining to the other parent).

As to the father’s permissive bond-exception claim, we land largely in the

same spot—with the added complication of convincing evidence that undermines

the strength of any bond between father and child. Although the father disputes

whether he meant it sincerely as to L.B., there is no question he told HHS he

wanted to terminate his parental rights to “all the kids” and then ceased visits and 12

services for a significant period before resuming them as to this child (at first

secretly and in violation of the NCO). Assuming the father satisfied his burden to

prove a bond by clear and convincing evidence despite these hurdles, we find he

failed to prove any detriment that may flow from severing the bond outweighs L.B.’s

need for a safe and stable home. While the father claims he can safely parent and

will no longer physically abuse the mother, his lack of credibility gives us no reason

to believe him—and every reason to believe his criminal history of domestic

violence will continue or resume in the future. See, e.g., N.F., 579 N.W.2d at 341

(past conduct is a good predictor of parents’ future behavior). We decline to apply

the bond exception for the father.

D. The Father’s Other Challenges

Although not presented under separate issue headings or with much clarity,

the father seems to make a few other arguments in passing. To the extent these

abbreviated claims are adequately presented for our review, we reject them.

First, the father seems to allege the juvenile court should have granted a

six-month extension of time. But courts can delay permanency for six months only

if the need for removal will be resolved in that time. See In re W.T., 967 N.W.2d

315, 323 (Iowa 2021). We reject this claim, as both formal and informal extensions

of time had already been granted and the life of this juvenile case—which stretched

some nineteen months—is well past the permanency guidelines. Id.

Second, the father argues the court should have entered a bridge order

awarding the mother full sole legal custody and supervised visitation for him. See

Iowa Code § 232.103A (permitting a juvenile court to close a CINA case, if specific

criteria are met, by transferring jurisdiction to the district court). This was not an 13

option given the danger posed by custody with the mother, including the likelihood

she would continue her relationship with the father and again secretly allow him

unauthorized visitation with the child, potentially exposing L.B. to more domestic

violence. See In re L.M., No. 19-0426, 2019 WL 2373649, at *3 n.2 (Iowa Ct. App.

June 5, 2019) (finding the use of a bridge order precluded by the “continued

concerns for the children’s safety”).

IV. Disposition

We affirm the termination of each parent’s parental rights.