In the Interest of Z.H., Minor Child

• Court: Court of Appeals of Iowa
• Decided: October 2, 2024
• Docket: 24-1225
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-1225 Filed October 2, 2024

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

C.C., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Calhoun County, Joseph McCarville,

Judge.

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

AFFIRMED.

Mary M. Lauver of Lauver Law, Lake City, for appellant mother.

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

General, for appellee State.

Mark J. Rasmussen, Jefferson, attorney and guardian ad litem for minor

child.

Considered by Greer, P.J., and Buller and Langholz, JJ. 2

GREER, Presiding Judge.

The juvenile court terminated the mother’s parental rights to Z.H., born in

November 2022, pursuant to Iowa Code section 232.116(1)(e), (g), (h), (k), and (l)

(2023).1 The mother appeals, arguing (1) the juvenile court erred by failing to file

a permanency order or make a ruling as to whether she should get additional time

for reunification under section 232.104(2)(b); (2) “[t]he court erred in finding clear

and convincing evidence that the child[] could not be returned under Iowa Code

[section] 232.116”; (3) the Iowa Department of Health and Human Services (the

department) failed to make reasonable efforts; (4) the court was wrong to find

termination was appropriate under section 232.116(2) and (3) because the

guardian ad litem (GAL) failed to fulfill the duties required by section 232.2(25)(b).

Following our de novo review of the record, we affirm.

I. Background Facts and Proceedings.

The mother and father were previously involved with the department

regarding another child, and their parental rights were terminated to that child in

2017 based on unresolved issues with substance abuse and mental-health needs.

The department again became involved with the family in March 2023—

when Z.H. was about five months old—after police were called for a domestic

violence incident involving the parents. The mother admitted to being under the

influence of methamphetamine at the time. The father maintained he was sober,

and the child was originally allowed to stay with the father and the paternal

1 The father’s parental rights were also terminated; he does not appeal. 3

grandmother. After the father and paternal grandmother both tested positive for

methamphetamine, Z.H. was formally removed from the parents’ custody in June.

Between the removal in June 2023 and the termination trial in June 2024,

the mother continued to use marijuana, methamphetamine, and heroin. She

completed substance-use treatment twice but relapsed once she returned to the

community. She committed multiple crimes during the same period 2 and, at the

time of the termination trial, was being held in county jail awaiting an open bed at

an inpatient treatment center, which she was required to complete as part of her

probation requirements. After completing treatment, she would be required to stay

at a sober living home.

The mother’s contact with Z.H. was sporadic. Due to her use of illegal

substances and her unavailability due to time spent in jails in different counties

(from February 2024 until June 2024), the mother sometimes went long stretches

without having contact with Z.H. And she admitted that of the more than fifty visits

she was offered with the child, she attended approximately ten.

At the termination trial, the mother asked the juvenile court to give her six

more months to work toward reunification. The mental health social worker the

mother worked with while in jail testified on the mother’s behalf, outlining the

reasons she believed the mother could be successful in achieving sobriety this

2 The mother was charged with and convicted of possessing prescription drugs

(oxycodone) in June 2023, operating while intoxicated in July, second-degree theft in October, and assaulting a peace officer and third-degree theft in December. Because at least a few of these crimes took place while the mother was already on probation, warrants were issued for her arrest, and she was incarcerated at one of several county jails beginning in February 2024 and through the date of the termination trial. 4

time, such as the fact that the mother had more sober time (due to being

incarcerated), which let her brain heal and allow for better decision making before

eventually entering a treatment program. The social worker opined the mother

could have custody of Z.H. returned to her in six months. But, the department

social worker case manager testified that the mother had never demonstrated the

ability to be a caretaker for the child and instead could not maintain sobriety for

more than a week once released from treatment.

The juvenile court terminated the mother’s parental rights under

section 232.116(1)(e), (g), (h), (k), and (l). The mother appeals.

II. Standard of Review.

We review termination-of-parental-rights cases de novo. In re M.W., 876

N.W.2d 212, 219 (Iowa 2016). That means “we review the facts as well as the law

and adjudicate rights anew.” In re M.M., 483 N.W.2d 812, 814 (Iowa 1992) (citation

omitted). In doing so, we give weight to the fact findings of the juvenile court,

especially when considering credibility of witnesses, but we are not bound by them.

See In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct. App. 1997) (“Where there is

conflicting evidence on some issues, we give consideration to the juvenile court on

issues of credibility.”).

III. Discussion.

We generally employ a three-step analysis to review a termination of

parental rights, asking whether (1) a statutory ground for termination is satisfied,

(2) the child’s best interests are served by termination, and (3) a permissive

exception applies and should be exercised to preclude termination. See In re L.B.,

970 N.W.2d 311, 313 (Iowa 2022). 5

Here, we start with the mother’s broad argument that “[t]he court erred in

finding clear and convincing evidence that the child[] could not be returned under

Iowa Code [section] 232.116.” When a parent’s rights are terminated under

multiple statutory grounds, we may affirm on any ground supported by the record.

In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). And generally, when a parent fails

to challenge a specific ground relied on by the juvenile court, we affirm on that

ground or grounds without further consideration. See, e.g., In re J.R., No. 23-1838,

2024 WL 261320, at *1 (Iowa Ct. App. Jan. 24, 2024) (recognizing a parent who

failed to articulate any challenge to termination under a specific ground waived

their challenge to termination on that ground); accord id. (collecting cases). The

mother does not explicitly challenge any of the five statutory grounds relied upon

by the juvenile court. And insofar as we understand her petition on appeal to

challenge the ground for termination under paragraph (h), which includes the

element that the child cannot be returned to the custody the parent at the time of

the termination trial, any such challenge is disingenuous. The mother remained in

county jail at the time of the termination trial; Z.H. could not be returned to the

mother’s custody while she was incarcerated. The statutory grounds for

termination were met.

The mother also argues the department failed to make reasonable efforts

at reunification. See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000) (recognizing

that “[t]he State must show reasonable efforts as a part of its ultimate proof the

child cannot be safely returned to the care of a parent”). To preserve error on a

reasonable-efforts challenge, the parent is required to alert the juvenile court to

any claimed deficiency in services “at the removal, when the case permanency 6

plan is entered, or at later review hearings.” In re C.H., 652 N.W.2d 144, 148

(Iowa 2002). This means a parent must alert the court to any perceived

deficiencies prior to the termination hearing. See In re C.G., No. 21-1422, 2022

WL 108544, at *2 (Iowa Ct. App. Jan. 12, 2022) (collecting cases). When a parent

fails to timely request additional or different services, the parent waives any

reasonable-efforts challenge. C.H., 652 N.W.2d at 148. Here, the mother

packages a more general complaint—that the department “purposefully trigger[ed

her by] telling the mother that she will not succeed[] and not making regular contact

with the mother”—as a reasonable efforts challenge. Even if we understood the

complaint to properly fall within the department’s mandate to make reasonable

efforts, the mother did not raise the issue to the juvenile court early enough to

preserve error. We do not consider this further.

Next, the mother combines a challenge against the juvenile court’s

conclusion that termination is in Z.H.’s best interests and no permissive exception

under section 232.116(3) applies to preclude termination and the fact that the GAL

failed to fulfill the duties outlined in section 232.2(25)(b). To that later point, the

juvenile court recognized the GAL “failed to comply with the statutory duties”

outlined by the Code. The mother objected on that same basis at the termination

trial and emphasized the court should not consider the GAL’s recommendation,

but she did not ask for a continuance of the hearing, which could have been

granted as a remedy in this case based upon the GAL’s inaction. As such, we

conclude the mother did not preserve error regarding whether a continuance or

any other remedy should have been granted and we analyze only whether the

statutory violation requires reversal of the juvenile court’s best-interest decision. 7

After the mother objected to the recommendation at the end of the trial, the

GAL responded, “Your Honor, this is a contested matter. If you desire, I will file a

written report but I can make my recommendation at this time based on the record

that has been made here today.”3 (Emphasis added.) Trouble is, the statute

requires that the recommendation be supported by knowledge gained by

conducting interviews; making home visits; attending hearings; and obtaining

firsthand knowledge of facts, circumstances, and parties involved to represent the

child’s best interests. See Iowa Code § 232.2(25)(b). Thus, there was no showing

made at the time of the termination trial that the GAL fulfilled its “investigative role.”

In re A.D., No. 24-0232, 2024 WL 2045988, at *7 (Iowa Ct. App. May 8, 2024) (“It

is not enough for the GAL to passively take in the evidence at the termination

hearing and later share a recommendation with the court.”).

But, unlike in A.D., here, the juvenile court specifically made a finding that

it did not rely on the GAL’s recommendation in reaching its decision to terminate,

which might have been “critically important” if this were a “marginal case and a

close call.” Cf. id. at *5 (relying on GAL’s revised recommendation when deciding

to terminate parental rights). In other words, the court essentially granted the

mother’s request to exclude the GAL’s recommendation as a remedy. The court

struck the right balance—stating:

The court agrees that the GAL has failed to comply with the statutory duties set out above. This, however, does not save the parents from termination. If this were a marginal case and a close call, the GAL’s independent interviews and reports might be critically important. This is not a close case. The State has produced abundant, clear and convincing evidence that . . . [the mother] is

3 Almost two weeks after the termination trial, the GAL filed a short report with few

specifics about his compliance with section 232.2(25)(b). 8

unable to regain custody of [Z.H.] due to continued criminal behavior and incarceration, untreated mental health issues, continued use of controlled substances, failure to participate in offered services, homelessness, unemployment, and a prior termination of her parental rights to a previous child.

In our de novo review, we agree with the juvenile court that termination is in Z.H.’s

best interests. According to the mother’s testimony, she relapsed in February

2023—when Z.H. was approximately three months old. And when the department

first became involved in March, the father reported Z.H. was primarily living with

him and the paternal grandmother, while the mother was sometimes allowed to

visit. During the year Z.H. was formally removed from the mother’s custody, the

mother had only about ten interactions with the child. The family support specialist

who supervised visits between the mother and Z.H. opined that Z.H. does not

share a bond with the mother. In contrast, both the case manager and the family

support specialist testified that Z.H. is bonded with her foster parents, who are

willing to adopt her. See Iowa Code § 232.116(2)(b). Because the mother was

not able to provide a safe, stable home more than a year after removal, termination

of her parental rights is in Z.H.’s best interests. See In re J.E., 723 N.W.2d 793,

801 (Iowa 2006) (Cady, J. concurring specially) (“A child’s safety and the need for

a permanent home are now the primary concerns when determining a child’s best

interests.”); In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (“We have

repeatedly followed the principle that the statutory time line must be followed and

children should not be forced to wait for their parent . . . .”).

The mother blames the GAL’s failure to fulfill the duties outlined in

section 232.2(25)(b) for the lack of evidence to establish that Z.H. and the mother

share a bond that precludes termination. See Iowa Code § 232.116(3)(c) (allowing 9

the court to forego 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”). But it is the parent’s burden to prove an exception

to termination should be applied. See In re A.S., 906 N.W.2d 467, 476 (Iowa

2018). We do not mean to suggest that we approve of the GAL’s failure to perform

statutorily required duties; we strongly urge attorneys to comply with these

directives that are to ensure that the best interests of Iowa children are served.

But the mother cannot gain the relief she requests by shifting focus to the GAL’s

inaction. See In re M.M., No. 23-1204, 2023 WL 7015363, at *6 (Iowa Ct. App.

Oct. 25, 2023) (“As to the [parent’s] complaint about the [GAL’s] investigation, the

burden was on the [parent]—not the [GAL]—to prove the exception applied.”).

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

additional time to work toward reunification with Z.H. pursuant to

section 232.104(2)(b). The court can give the parent the requested extension only

if the need for removal “will no longer exist at the end of the additional six-month

period.” Iowa Code § 232.104(2)(b). We recognize the mother’s mental health

social worker felt optimistic about the mother’s chances to achieve sobriety. But

this social worker at the jail had known the mother for only two months, which

translated into visiting with the mother for a total of only eight to twelve hours, and

she did not have the benefit of the mother’s previous treatment records. We hope

the mother is successful, but our case law prevents us from giving a parent more

time based on a mere hope of a different future. See In re M.S., No.23-0828, 2023

WL 5607109, at *3 (Iowa Ct. App. Aug. 30, 2023) (“We will not ask a child to wait

longer for permanency on a mere hope of a parent’s improvement.”); In re L.H., 10

949 N.W.2d 268, 271–72 (Iowa Ct. App. 2020) (“[I]n considering the impact of a

drug addiction, we must consider the treatment history of the parent to gauge the

likelihood the parent will be in a position to parent the child in the foreseeable

future.” (alteration in original) (citation omitted)); N.F., 579 N.W.2d at 341 (“Where

the parent has been unable to rise above the addiction and experience sustained

sobriety in a noncustodial setting, and establish the essential support system to

maintain sobriety, there is little hope of success in parenting.”). While the juvenile

court should have explicitly ruled on the mother’s request for additional time,

following our de novo review, we cannot say the need for Z.H.’s removal from the

mother’s custody will no longer exist in six months. At the time of the termination

trial, the mother was still in county jail waiting for an open bed at a residential

treatment facility, and even after she completed treatment, she would need to

establish and maintain her sobriety in a noncustodial setting. An extension is not

warranted here.

We affirm the termination of the mother’s parental rights to Z.H.