In the Interest of R.M., J.M., and M.M., Minor Children

• Court: Court of Appeals of Iowa
• Decided: October 11, 2023
• Docket: 23-1195
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1195 Filed October 11, 2023

IN THE INTEREST OF R.M., J.M., and M.M., Minor Children,

C.M., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Dallas County, Erica Crisp, District

Associate Judge.

A father appeals the termination of his parental rights. AFFIRMED.

Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, for appellant

father.

Brenna Bird, Attorney General, and Natalie Hedberg, Assistant Attorney

General, for appellee State.

Donna M. Schauer, Adel, attorney and guardian ad litem for minor children.

Considered by Greer, P.J., and Schumacher and Badding, JJ. 2

SCHUMACHER, Judge.

A father appeals the termination of his parental rights. Clear and convincing

evidence supports a statutory ground for termination, termination is in the best

interests of the children, and an extension of time for reunification is unwarranted.

Further, the father waived any claim that a permissive exception should be applied

to preclude termination. Accordingly, we affirm.

I. Background Facts and Prior Proceedings

The children at interest in this appeal, three young brothers, include R.M.

born in 2020, J.M. born in 2021, and M.M. born in 2022. The family came to the

attention of the Iowa Department of Health and Human Services (HHS) in early

2022 when both their mother and the father were charged with domestic abuse for

conduct that occurred in the presence of R.M. and J.M. The mother was pregnant

with M.M. On April 22, the court entered an exparte removal order for R.M. and

J.M., and both children were placed in the custody of HHS. R.M.’s hair stat test

was positive for methamphetamine; J.M. did not have enough hair to test. On June

1, R.M. and J.M. were adjudicated children in need of assistance (CINA), pursuant

to Iowa Code section 232.2(6)(c)(2) (2022), upon a finding that the court’s aid was

required.

M.M. was born in October. M.M. tested positive for both methamphetamine

and amphetamine. M.M. was removed from parental custody less than a week

after his birth. M.M. was adjudicated a CINA on December 14, pursuant to Iowa

Code section 232.96A(3)(b), (14), (15), and (16), upon a finding that the court’s aid

was required. 3

As part of the disposition and dispositional review orders, the following was

required of the father: a substance-abuse evaluation and compliance with

recommendations of the provider, a mental-health evaluation and compliance with

recommendations of the provider, and that he address the domestic violence and

comply with drug testing.

A permanency hearing for R.M. and J.M. and a disposition hearing for M.M.

were held on January 25, 2023. The court noted that the father had made only

inconsistent progress, highlighting his refusal to drug test. The court noted the

father was living in his vehicle. The State petitioned for termination of parental

rights as to R.M. and J.M. on January 31.

On May 10, a permanency hearing for M.M and a permanency review

hearing for R.M. and J.M were held. All three children were confirmed to be CINA.

The father had new criminal charges pending, was argumentative with HHS

workers, and had not been addressing his substance-abuse issues. On May 18,

a petition for termination of parental rights as to M.M. was filed.

Throughout the underlying CINA proceedings, the father was in and out of

treatment centers, and he continued to struggle with substance abuse at the time

of the termination hearing. While he was in treatment, he regularly visited the

children, but in the few months before the termination hearing, the father’s visits

became sporadic and ended altogether in January 2023.1

The older two children were in seven different foster homes following

removal, either because of the father’s intimidation of the foster parents or R.M.’s

1 The father was in jail from March 2023 to June 26, 2023. He was released one day before the termination hearing. 4

behaviors. R.M. suffered from night terrors and had melt-downs that lasted up to

four hours. These behaviors were a reaction to previous trauma. R.M. was

reported to be in a constant state of “fight or flight.” By the termination hearing,

R.M. was in a separate foster home from J.M. and M.M., who were placed together.

This separate placement allows R.M. to receive the individualized attention he

needs. The placements have made efforts to keep the three boys connected. J.M.

and M.M. are reported to have a strong sibling bond.

Following a June 2023 hearing on the State’s termination petition, the court

terminated the father’s parental rights under Iowa Code section 232.116(1)(e), (h),

and (l) (2023). The father now appeals.2

II. Standard of Review

Our review of termination proceedings is de novo. In re P.L., 778 N.W.2d

33, 40 (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.” In re

D.W., 791 N.W.2d 703, 706 (Iowa 2010). The State must show clear and

convincing evidence for termination. Id. Clear and convincing evidence is

evidence with no “serious or substantial doubts as to the correctness or

conclusions of law drawn from the evidence.” Id. (citation omitted).

In reviewing a termination of parental rights, we conduct a three-step

analysis. First, we look to find statutory grounds for termination under

section 232.116(1). Id. at 706–07. Second, we consider the best interests of the

2 The mother consented to the termination of her parental rights as to all three

children. She is not a party to this appeal. 5

child, as laid out under section 232.116(2). Id. Third, we consider any exceptions

to termination under section 232.116(3). Id. at 707.

III. Discussion

The father presents several arguments to contest the termination of his

parental rights. He argues the court erred in terminating his rights under Iowa

Code section 232.116(1)(e), (h), and (l). He also argues termination was not in the

best interests of the children, he should have been granted an extension of time

for reunification efforts, and Iowa Code section 232.116(3) should be employed to

preclude termination.

A. Grounds for Termination

Because we determine termination was warranted under Iowa Code

section 232.116(1)(h), we limit our discussion to this ground. Under

section 232.116(1)(h), a court may order termination when:

(1) The child is three years of age or younger. (2) The child has been adjudicated in need of assistance pursuant to section 232.96. (3) The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months . . . . (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.

The father concedes that the first three elements are met, but he argues

that the State failed to show element four by clear and convincing evidence. The

meaning of “at the present time” has been clarified to mean that “termination may

be ordered when . . . a child . . . cannot be returned to the parents’ custody at the

time of the termination hearing.” D.W., 791 N.W.2d at 707; In re Z.P., 948 N.W.2d 6

518, 524 (Iowa 2020) (“[T]he record shows a number of reasons why [the father]

was not prepared to assume a parenting role at the time of trial.”).

The father argues “he was in a position to be able to parent the children and

would be a safe and appropriate parent as soon as he was able to successfully

complete an inpatient treatment program.”

But “as soon as he completes treatment” does not equate to “at the present

time.” The father testified that he would need more time, acknowledging the

children could not be placed with him at the treatment program. And this particular

program would take at least eight months and could take as long as a year.3

Beyond that, the father has also failed to demonstrate the progress

necessary to have the children returned to his custody at the time of the termination

hearing. Although the father initially participated in visits with his children, those

visits became more and more infrequent, and eventually stopped altogether.

Before the June 2023 hearing, the father had not visited his children since the end

of January 2023. He continued to engage in criminal activity and oscillated

between jail and homelessness in the time before the termination hearing. He

made two attempts to get treatment for substance abuse, but could not maintain

sobriety. He has not resolved the domestic violence that occurred between him

and the children’s mother and failed to appreciate the seriousness of the abuse.

We conclude the children could not be returned to the father’s custody at the time

of the termination hearing. Accordingly, we find a statutory ground satisfied under

Iowa Code section 262.116(1)(h).

3 The father had completed this same treatment program previously. 7

B. Best Interests of the Children

When determining whether to terminate parental rights, the court must

determine whether termination is in the best interests of the child. See Iowa Code

§ 232.116(2). This means the court “give[s] primary consideration to the

child[ren]’s safety, to the best placement for furthering the long-term nurturing and

growth of the child[ren], and to the physical, mental, and emotional condition and

needs of the child[ren].” Id.

The father claims termination is not in the best interests of the children

because there were other options available to the court besides termination that

would be “more in line with the best interests of the child[ren] than terminating

parental rights.” He argues that it would be in the children’s best interest “to allow

the father an opportunity to be the father that he wanted to be.”

We determine that termination is in the children’s best interests. “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.” P.L., 778

N.W.2d at 41.

The father insists that his children should be made to wait before

permanency. But at this point the statutory timeframes for children of these tender

ages has run, and the children are well-settled into their placements. All three

children are attached to their caretakers. The father has failed to address his

substance abuse, failed to address his domestic-violence issues, and failed to

cease criminal activity. The children should not be in limbo because their father

has been unable to demonstrate sustainable progress over the past year. 8

C. Extension of Time

As part of his best interest argument, the father mentions in passing that he

“at a minimum” should have been given a six-month extension for additional

reunification efforts. We note that Iowa Code sections 232.117(5) and

232.104(2)(b) allow the court to grant an extension of time if parental rights are not

terminated following the termination hearing. But to continue placement for six

more months, the juvenile court must determine that “the need for removal will no

longer exist at the end of the extension.” In re A.A.G., 708 N.W.2d 85, 92 (Iowa

Ct. App. 2005). “The [court] considering [the extension] should however constantly

bear in mind that, if the plan fails, all extended time must be subtracted from an

already shortened life for the children in a better home.” Id. (citation omitted). We

cannot determine on this record that the need for the removal of these three young

boys will no longer exist at the end of a six-month period. We reject the father’s

request for an extension of time.

D. Permissive Exceptions

The father also strings together a list of the permissive exceptions to

termination, but he neither makes an argument nor cites to the record concerning

any of the permissive exceptions contained in Iowa Code section 232.116(3).

“[O]nce the State has proven a ground for termination, the parent resisting

termination bears the burden to establish an exception to termination,” In re A.S.,

906 N.W.2d 467, 476 (Iowa 2018), and we cannot consider or address arguments

he does not make. By failing to identify which exception he believes applies, the

father has waived argument on any of the permissive exceptions.

AFFIRMED.