In the Interest of S.M., N.N.-M., and S.M., Minor Children

• Court: Court of Appeals of Iowa
• Decided: August 3, 2022
• Docket: 22-0896
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0896 Filed August 3, 2022

IN THE INTEREST OF S.M., N.N.-M., and S.M., Minor Children,

L.N., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Hancock County, Karen Kaufman

Salic, District Associate Judge.

The mother appeals termination of her parental rights to three children.

AFFIRMED.

Cameron M. Sprecher of Jorgensen Law Office, Mason City, for appellant

mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Theodore Hovda, Garner, attorney and guardian ad litem for minor children.

Considered by Bower, C.J., Badding, J., and Blane, S.J.*

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

(2022). 2

BLANE, Senior Judge.

The mother appeals the termination of her parental rights to three children,

ages eleven, seven, and six.1 She contends the State failed to prove the statutory

grounds, termination is not in the children’s best interests, a termination exception

applies, and she should be given extra time. Because her appeal challenges the

wrong statutory ground and does not address one ground at all, she has waived

any error related to those grounds. And because she is not able to provide a safe

and stable living situation for the children, we find her other challenges lack merit.

Accordingly, we affirm the termination.

I. FACTS AND PRIOR PROCEEDINGS.

This family originally came to the attention of the Iowa Department of

Human Services (DHS) in November 2017 due to the mother’s and father’s

substance-abuse and mental-health issues. The mother moved out of the home

while the children remained with the father. The father utilized DHS’s services,

and the child-in-need-of-assistance (CINA) case closed in September 2019. The

mother took no part in the case or services. She instead spent the time living with

her mother in Minnesota.

Unfortunately, eighteen months after the first CINA case closed, the children

were removed from the father a second time. In February 2021, he was arrested

for selling methamphetamine from the home. At the time, concerns arose about a

neighbor, who is a sex offender, grooming or having sexual contact with then-ten-

year-old N.N.-M. DHS later learned that the previous November, the father let

1The juvenile court also terminated the parental rights of the children’s father, but he does not appeal. 3

N.N.-M. go on a trip to another state with his girlfriend, who exposed the little girl

to people selling drugs. At removal, there were also considerable concerns about

neglect of the children regarding their inconsistent school attendance, behavioral

problems, and inadequate medical care. In the vacuum, N.N.-M. took on the

primary parenting role for her two younger siblings.

Since this second removal, the mother has become more involved in the

case. But her success at necessary services has been mixed. She has been in

and out of substance-abuse treatment facilities but unable to demonstrate

sustained sobriety. Several drug tests have been positive for various substances.

She has not engaged mental-health services. At the time of the termination

hearing, she was still attending in-patient substance abuse treatment and had no

residence of her own. Her only employment during the CINA case was at

McDonalds starting a few weeks before the termination hearing. Visitations were

also mixed with the mother allowing N.N.-M. to complete most of the parenting

duties. During one weekend visit, the mother took the children to a party in another

town and told them to lie about it to service providers. Her substance test from

that weekend was positive for alcohol.

Meanwhile, the children are all doing well together in their foster home. The

foster family is seeing to their needs for mental-health therapy, medication, and

educational support. They each face significant emotional, behavioral, and

cognitive challenges.

After fifteen months out of the home, the juvenile court terminated the

mother’s rights under Iowa Code section 232.116(1) (2022), paragraphs (f) and (l).

The mother appeals. 4

II. SCOPE AND STANDARD OF REVIEW.

We review termination proceedings de novo. In re L.B., 970 N.W.2d 311,

313 (Iowa 2022). We respect the juvenile court’s factual findings but are not

required to adopt them. Id. The State must prove the grounds for termination by

clear and convincing evidence. Id.

We apply a three-step analysis to review termination of parental rights

cases. Id. “First, we consider whether there are statutory grounds for termination.

Second, we determine whether termination is in the best interest of the child. Third,

we consider whether we should exercise any of the permissive exceptions for

termination.” Id. (internal citations omitted).

III. ANALYSIS.

A. Statutory grounds.

The mother contends the State failed to prove the statutory grounds for

termination under Iowa Code section 232.116(1)(h), subparagraph (4) by clear and

convincing evidence. But the court terminated parental rights under Iowa Code

section 232.116(1), paragraphs (f) and (l). Her failure to challenge termination on

those paragraphs waives any claim of error on those grounds.2 See 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.”); see also In re

N.N., No. 21-1978, 2022 WL 610318, at *1 (Iowa Ct. App. Mar. 2, 2022).3

2 We generally “decline to elevate form over substance” in court filings. Williams v. Bullock, 960 N.W.2d 473, 481 (Iowa 2021). But even if we addressed the “cannot be returned” language common to Iowa Code section 232.116(1) paragraphs (f) and (h), the mother waived another ground entirely. 3 This case, in which the same attorney represented the appellant mother, was

also affirmed by this court after the attorney failed to raise the correct statutory 5

Accordingly, we affirm the juvenile court’s findings termination is appropriate under

those paragraphs.

B. Best interests.

Next, the mother argues termination of parental rights is not in the children’s

best interests under Iowa Code section 232.116(2).4 Under that section, we “give

primary consideration to the child’s safety, to the best placement for furthering the

long-term nurturing and growth of the child, and to the physical, mental, and

emotional condition and needs of the child.” Iowa Code § 232.116(2).

In light of those factors, the record is clear and convincing that it is in the

children’s best interests to terminate the mother’s rights. The mother has not

succeeded in the safety goals to obtain custody or placement of the children.

Although she has had some success with substance-abuse treatment in the past,

she has not demonstrated any significant period of sobriety outside of an inpatient

treatment setting. She has not sought ordered mental-health services. And she

has not cooperated with DHS in its efforts to unite her with the children. The

children were subjects of a previous CINA proceeding, which closed through their

father’s efforts in 2019. The mother did not take part in that case; she lived in

Minnesota with the children’s maternal grandmother. When this case was opened

with removal of the children from their father in February 2021, the mother became

involved and had more in-person interactions. But the children struggled with

grounds on appeal. N.N., 2022 WL 610318, at *1. It was filed several months before the petitions on appeal were submitted in the present case. 4 In the same section of her petition on appeal, the mother argues termination of

her parental rights would be contrary to Iowa Code section 232.116(3)(c), which is different from the subsection (2) best-interests step. Because she minimally argues under section 232.116(3)(c), we will address it separately. 6

maladaptive behaviors after her visits. The mother also has not demonstrated an

ability to be a stable support for her children—she had no home and was

unemployed until just weeks before the termination hearing. She cannot keep the

children safe or see to their physical, mental, or emotional needs. It is in their best

interests to terminate her parental rights.

C. Statutory exceptions.

The mother next argues termination would be “highly detrimental to the

children due to the closeness of the parent-child relationship.” See Iowa Code

§ 232.116(3)(c). To prevail, she must show that the harm outweighs the concerns

over her inability to care for the children. See In re D.W., 791 N.W.2d 703, 709

(Iowa 2010) (“[O]ur consideration must center on whether the child will be

disadvantaged by termination, and whether the disadvantage overcomes [the

parent’s] inability to provide for [the child’s] developing needs.”).

The mother argues the guardian ad litem (GAL) told the juvenile court that

her oldest child, N.N.-M., wants to go back home with her mother and preferred to

stay with her mother.5 The GAL recommended giving the mother extra time to

realize N.N.-M.’s wish.

5 N.N.-M. also wrote a letter to the court, submitted with the petition on appeal. This letter does not appear in the juvenile court record, so we do not consider it. And we consider N.N.-M.’s expressed preference only to the extent it impacts whether she will suffer detriment or disadvantage due to the closeness of the parent-child bond. See Iowa Code § 232.116(3)(c); cf. id. § 232.116(2)(b)(2) (directing the court to consider, as part of the general best interests step, whether there has been an “integration into a foster family” including the “reasonable preference of the child” if “the child has sufficient capacity to express” such preference). No argument was made below or on appeal about the children’s integration into the foster family. 7

But what the record shows is that the oldest child has expressed different

views over the life of the case about whether she wants to live with her mother.

The GAL reported his conversation with N.N.-M. in which she said she “would like

to see her entire family reunited” but “she knew that was not a likely outcome, so

she expressed a desire that she and her two siblings be reunited with their mother.”

The DHS caseworker testified N.N.-M. “just wants to be able to move forward. She

wants to stay where she is [with foster parents]; she wants to have a normal life.

She loves her parents, but she doesn’t want to bounce back and forth.” The

caseworker also testified the other children love their parents. But she did not

agree that they shared a strong bond. In addition, the family support specialist

overheard a conversation between N.N.-M. and the mother where the mother

encouraged her daughter to tell service providers she wants to live with her mom.

And that is not the only time the mother has appeared to “coach” her children what

to say to service providers. On this evidence, we do not think the mother has

shown termination would be detrimental or disadvantageous to N.N.-M., let alone

the other children.

D. Extension of time.

Finally, the mother argues the juvenile court should have given her

additional time to work toward reunification. To grant an extension of six months,

under Iowa Code section 232.104(2)(b), the court must determine the need for

removal will no longer exist at the end of that time. In re A.A.G., 708 N.W.2d 85,

89 (Iowa Ct App. 2005).

We have no reason to believe the mother will be able to resume care of the

children in six months. Her lack of progress leaves the children in danger from her 8

unresolved substance-abuse and mental-health issues. And she remains unstable

in terms of housing and employment. We consider that this is the second go-

around for these children since the initial removal in 2017. The mother’s issues

remain the same. The children need permanency. An extension of time will not

likely result in a change and is not warranted.