In the Interest of Z.D., Minor Child

• Court: Court of Appeals of Iowa
• Decided: March 8, 2023
• Docket: 22-2047
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-2047 Filed March 8, 2023

IN THE INTEREST OF Z.D., Minor Child,

C.D., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County,

Scott Strait, District Associate Judge.

A mother appeals the termination of her parental rights to one child.

AFFIRMED.

Whitney A. Estwick, Omaha, Nebraska, for appellant mother.

Brenna Bird, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Roberta J. Megel of the State Public Defender, Council Bluffs, attorney and

guardian ad litem.

Considered by Vaitheswaran, P.J., and Greer and Chicchelly, JJ. 2

CHICCHELLY, Judge.

C.D. appeals the termination of her parental rights to one child, Z.D. She

contends that reasonable efforts at reunification were not made, the statutory

grounds are unsatisfied, and an exception should be granted due to the closeness

of the parent-child bond. Upon our de novo review, we affirm the termination of

her parental rights.

I. Background Facts and Proceedings.

Z.D. was born in 2015. The Iowa Department of Health and Human

Services investigated her home in 2017, 2018, and 2020 due to allegations

involving denial of critical of care, dangerous substances, unsanitary living

conditions, and physical abuse. In January 2021, an intake was called into the

department’s hotline alleging sexual abuse by Z.D.’s father. He later pled guilty to

sexually abusing Z.D. and was sentenced to a term of incarceration. His parental

rights were terminated, and he does not appeal. Z.D. reported that she told her

mother about her father’s behavior, but her mother would laugh or say Z.D. was

lying. Z.D. also reported being instructed to stay in the bedroom with her parents

while they engaged in sexual intercourse.

In February, Z.D. was removed from her mother’s care upon a finding the

mother failed to provide adequate shelter, which was premised on unsanitary

conditions in the home. Workers discovered animal feces and urine, an infestation

of cockroaches and other bugs, rotting food, and trash throughout the home. Z.D.

was placed with her aunt on March 1 and has remained in her home for the

duration of this case. After five months of attempting to engage the mother in 3

services with little to no progress, the department opted to pursue court

involvement. In August, Z.D. was adjudicated a child in need of assistance (CINA).

Initially, Z.D. and her mother enjoyed unsupervised visits, which were

considered semi-supervised because they did not extend to overnights. The

mother completed parenting courses on the ABC’s of sexual abuse and seeking

safety, but she failed to partake in several other recommended courses. The

mother completed a psychological evaluation and engaged in mental-health

therapy. She attended therapy consistently from August 2021 to April 2022. The

family support specialist testified that she had trouble getting the mother to sign a

release of information so that the department could communicate with the therapist

because the mother claimed the therapist was a liar.

In December, the mother’s visitation regressed to fully supervised due to

lack of compliance with the safety plan, which instructed that no unapproved adults

were allowed at visits. Z.D. came back from visits talking about having met her

“new daddy.” An unknown adult male also attended Z.D.’s school program with

her mother, and it was discovered he had a criminal history of domestic violence.

It was also clear Z.D. and the man had met before based on their interaction and

because he had posted a picture with Z.D. on social media during a recent visit.

Z.D. also reported another adult male kissing her with his tongue and that her

mother told her it was okay because he was a friend. The mother denies

condoning the behavior and said that individual would not be around because she

did not feel he was a safe person. However, that specific individual was reportedly

helping the mother clean her home during the month prior to the termination

hearing. 4

In late January 2022, the department approved the mother’s new home for

visitation. During the termination hearing, the caseworker testified that she did not

know why visitation never actually occurred at the home. A progress report dated

February 20, 2022, noted that no visits occurred during that reporting period

because “[the mother] didn’t want to attend these scheduled visits” and did not

want “to bring [Z.D.] into the situation.” Visits occurred at the family access center

because Z.D.’s aunt requested that visits stop occurring in her home due to the

mother making inappropriate comments around Z.D. and the aunt’s children.

In March, Z.D.’s psychiatrist recommended suspending visits with her

mother for a few weeks of evaluation due to self-harming behaviors and suicidal

comments after interactions. It was recommended that visits begin again in a

therapeutic setting, meaning under supervision of a licensed therapist. The

department placed Z.D. and her mother on a waiting list for this purpose and

recommended the mother utilize the intervening time to complete her psychiatric

evaluation and continue individual therapy. In mid-June, the department learned

the mother had not attended therapy since late April. It was discovered that the

therapist’s office cancelled her appointment in May, and the mother had difficulty

getting rescheduled. The caseworker testified that the mother removed herself

from the waiting list for therapeutic visits with Z.D. in order to pursue her own

options. The mother testified that she did not do so and should still be on the list

to her knowledge. The record reflects an email exchange in June in which the

mother informed the department of a family therapist she found, but the

department informed her that it would need the mother’s psychiatric evaluation and 5

an update from her individual therapist prior to family therapy. Therapeutic visits

never occurred.

In June, the mother completed a psychological evaluation with a new

therapist who diagnosed her with adjustment disorder with anxiety. The therapist’s

letter notes that nothing suggested that a psychiatric evaluation would be

necessary for the mother. On July 1, an intake was reported to the police

department, and it was requested that contact between Z.D. and her mother be

suspended until the investigation could be completed. On July 22, the department

was informed that the investigation was suspended and contact could be initiated

again. The county attorney filed its petition to terminate parental rights in July.

On August 4, Z.D. and her mother visited over the phone, which was their

first contact since April. Their subsequent contact was limited to phone and video

calls leading up to the termination hearing. Z.D. reportedly asked her mother if

she would do certain things to her if she got to see her again, such as lock her in

her room or hit her. Z.D. also exhibited self-harming behaviors during the calls by

picking at herself until she drew blood. Afterwards, she experienced nightmares,

was clingy, exhibited heightened anxiety, and continued to pick her skin. In the

two months prior to the termination hearing, Z.D. expressed approximately five

times that she did not want to see her mother. The caseworker visited the mother’s

home in August and concluded that it was unfit for visits due to significant trash on

the floor, cockroaches on the wall, old food on the counter and floor, and an

unknown male staying at the residence.

After Z.D.’s attorney and guardian ad litem filed a motion to suspend

visitation, the court held a hearing regarding whether to continue contact in mid- 6

September. The court denied the motion on September 21. Z.D. and her mother

shared a video call on September 22. The court held a hearing on the petition to

terminate parental rights on September 26. After the court terminated her parental

rights, the mother filed a timely appeal.

II. Review.

Our review of termination proceedings is de novo. See In re C.B., 611

N.W.2d 489, 492 (Iowa 2000). “We will uphold an order terminating parental rights

where there is clear and convincing evidence of the statutory grounds for

termination. Evidence is clear and convincing when there is no serious or

substantial doubt as to the correctness of the conclusions of law drawn from the

evidence.” In re T.S., 868 N.W.2d 425, 431 (Iowa Ct. App. 2015) (internal citation

omitted). We give weight to the juvenile court’s fact findings, especially those

about witness credibility, although they are not binding. See Iowa R. App.

P. 6.904(3)(g); C.B., 611 N.W.2d at 492.

III. Discussion.

The principal concern in termination proceedings is the child’s best

interests. In re L.T., 924 N.W.2d 521, 529 (Iowa 2019). Iowa courts use a three-

step analysis to review the termination of parental rights. In re A.S., 906 N.W.2d

467, 472 (Iowa 2018). Those steps include whether: (1) grounds for termination

have been established, (2) termination is in the child’s best interests, and (3) we

should exercise any of the permissive exceptions to termination. Id. at 472–73.

A. Grounds for Termination.

Here, the juvenile court found the State proved by clear and convincing

evidence that termination of the mother’s parental rights was appropriate under 7

paragraphs (e) and (f) of Iowa Code section 232.116(1) (2022). We may affirm if

the record supports termination on any one ground. See In re A.B., 815 N.W.2d

764, 774 (Iowa 2012). We confine our analysis to paragraph (f), under which the

court may terminate if it finds all of the following:

(1) The child is four years of age or older. (2) The child has been adjudicated a [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 thirty days. (4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child’s parents as provided in section 232.102.

The fourth element is at issue: whether the child could be returned to the parent’s

care at the time of the termination hearing. See In re D.W., 791 N.W.2d 703, 707

(Iowa 2010) (interpreting the term “at the present time” to mean “at the time of the

termination hearing”).

We agree with the juvenile court that Z.D. could not be returned to her

mother’s care at the time of the termination hearing. The department expressed

concern about the mother refusing to take accountability for her involvement with

the department and needing to demonstrate an ability to maintain safe supports

and provide age-appropriate supervision. The family support specialist testified:

Every time that I would try to talk about having safe people around, [the mother] would say that he’s already out of the house and that it’s already taken care of, and so it was kind of hard to work on that. I tried to bring it up a couple other times, and then she just said the problem is already gone.

Besides unknown men encountered at the home, the mother also continued to

have contact with the father during his incarceration despite her reports of physical 8

and emotional abuse by him in the past. One month prior to the termination

hearing, the mother’s physical home was still found to be unfit for Z.D. due to

unsanitary conditions and an unknown male staying at the residence. Ultimately,

we share in the district court’s conclusion that the mother “has failed to

demonstrate the protective capacity to prevent further trauma, abuse or neglect of

[Z.D.].” “It’s folly to think the mother will stand sentinel to protect against a foe she

doesn’t acknowledge exists.” In re D.D., 955 N.W.2d 186, 193 (Iowa 2021). We

affirm the court’s finding that Z.D. could not be returned to her mother at the time

of the termination hearing.

B. Reasonable Efforts.

The mother argues the department did not make reasonable efforts at

reunification because it failed to provide visits for a significant period of time. See

Iowa Code § 232.102(7) (2022) (requiring that the department “make every

reasonable effort to return the child to the child’s home as quickly as possible

consistent with the best interests of the child”). However, the mother does not

point to any portion of the record where she identified a deficiency in agency

services prior to the filing of the petition for termination. Moreover, the mother did

not raise the issue of reasonable efforts at the termination hearing. Therefore, we

find the argument waived. See In re C.H., 652 N.W.2d 144, 148 (Iowa 2002) (“In

general, if a parent fails to request other services at the proper time, the parent

waives the issue and may not later challenge it at the termination proceeding.”);

Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine

of appellate review that issues must ordinarily be both raised and decided by the

district court before we will decide them on appeal.”). 9

C. Best Interests.

The mother argues that she “loves her daughter and did not believe it was

in her best interests to have her parental rights terminated with respect to her

daughter.” She does not otherwise advance a best-interests argument with

support from the record or other authorities. See Iowa R. App. P. 6.1401–Form 5

(instructing that the petition include findings of fact or conclusions of law with which

the petitioner disagrees and why, generally referencing a particular part of the

record, witnesses’ testimony, or exhibits that support the petitioner’s position). If

this was an attempt to raise such an argument, we find it waived. See Goode v.

State, 920 N.W.2d 520, 524 (Iowa 2018) (“Our appellate rules of procedure and

judicial restraint expect claims raised on appeal be specific. A party who fails to

satisfy this standard risks waiving the issue.” (internal citations omitted)). Even if

an argument was advanced, we would find Z.D.’s best interests do not warrant

continuing a parent-child relationship and therefore support termination.

D. Exception to Termination.

Finally, the mother argues an exception to termination should be granted

because of the parent-child bond that she and Z.D. share. See Iowa Code

§ 232.116(3)(c) (providing a discretionary exception to termination when “[t]here is

clear and convincing evidence that the termination would be detrimental to the

child at the time due to the closeness of the parent-child relationship.”). The

provisions of section 232.116(3) are “permissive, not mandatory,” and the parent

bears the burden to prove the applicability of an exception to termination. A.S.,

906 N.W.2d at 475–76. Despite the mother’s love for her child, “our consideration

must center on whether the child will be disadvantaged by termination.” D.W., 791 10

N.W.2d at 709. The caseworker testified that Z.D. has a bond with her mother but

not the type of safe or nurturing bond that Z.D. shares with her aunt. We do not

find a parent-child relationship so strong that it outweighs the need for termination.

See In re W.M., 957 N.W.2d 305, 315 (Iowa 2021) (finding the existence of a bond

is insufficient when parents have “failed to provide the clear and convincing

evidence necessary to show that, on balance, that bond makes termination more

detrimental than not”).

IV. Disposition.

Having reviewed the mother’s arguments regarding the statutory grounds,

reasonable efforts, and an exception to termination, we find each without merit and

affirm termination of her parental rights.