In the Interest of J.H. and K.H., Minor Children ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1450
Filed February 3, 2021
IN THE INTEREST OF J.H. and K.H.,
Minor Children,
H.O., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Mark F. Schlenker,
District Associate Judge.
A mother appeals the juvenile court order terminating her parental rights to
her two minor children. AFFIRMED.
Nancy L. Pietz, Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Yvonne C. Naanep, Des Moines, attorney and guardian ad litem for minor
children.
Considered by Doyle, P.J., and Tabor and Ahlers, JJ.
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AHLERS, Judge.
The State sought to terminate the parental rights of the mother of the two
children who are the subject of this action, J.H. and K.H. Following a hearing, the
juvenile court terminated the mother’s parental rights to both children under Iowa
Code section 232.116(1)(h) (2020).1 The mother appeals, arguing: (1) the State
did not meet its burden to show the children could not be returned to her care at
the time of the termination hearing; (2) the juvenile court erred by refusing to grant
her request for a six-month extension to work toward reunification; (3) termination
is not in the children’s best interest; and (4) the juvenile court erred by terminating
the mother’s parental rights because the children have been placed with a relative.
I. Background
The children were removed from the mother’s home in July 2019 after the
Iowa Department of Human Services (DHS) learned there had been instances of
domestic abuse between the parents and the children had been shuffled between
a number of different caretakers without either parent visiting them for several
weeks. The children were adjudicated as children in need of assistance (CINA) in
September 2019.
Over the next six months, the mother did not meaningfully address the
issues that led to the children’s removal. Further, on March 15, 2020, the mother
was arrested for domestic abuse causing bodily injury and for violating a no-
contact order between her and the father. Following the mother’s arrest, the State
petitioned to terminate the mother’s parental rights in April 2020. After a
1The juvenile court also terminated the father’s parental rights in the same order.
The father does not appeal.
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termination hearing in August, the juvenile court terminated the mother’s parental
rights under Iowa Code section 232.116(1)(h). The mother appeals.
II. Standard of Review
“We review proceedings terminating parental rights de novo.” In re Z.P.,
948 N.W.2d 518, 522 (Iowa 2020) (per curiam) (quoting In re A.M., 843 N.W.2d
100, 110 (Iowa 2014)). “Our primary concern is the best interests of the child.” In
re J.E., 723 N.W.2d 793, 798 (Iowa 2006).
III. Discussion
As noted, the mother raises four issues on appeal. We will address them
separately.
A. Statutory Grounds
The mother first argues the State did not meet its burden to prove the
statutory ground of termination. The juvenile court terminated the mother’s
parental rights to J.H. and K.H. under Iowa Code section 232.116(1)(h). Under
that provision, the State must show four elements for each child:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child 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, or
for the last six consecutive months and any trial period at home has
been less than thirty days.
(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.
Iowa Code § 232.116(1)(h). The mother only disputes the fourth element, arguing
the children could be returned to her care because she “has a home, a job, stability
and the ability to support the children.” On our de novo review, we conclude clear
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and convincing evidence supports the finding the children could not be returned to
the mother’s care at the time of the termination hearing. See In re D.W., 791
N.W.2d 703, 707 (Iowa 2010) (“Section 232.116(1)(h) provides that termination
may be ordered when there is clear and convincing evidence that a child under the
age of three who has been adjudicated a CINA and removed from the parents’
care for at least the last six consecutive months cannot be returned to the parents’
custody at the time of the termination hearing.”).
At the time of the termination hearing, the children had been removed from
the mother’s care for over a year. In that time, the mother did not adequately
address the issues that led to the children’s removal. One of the most concerning
issues is the mother’s mental health. See In re D.H., No. 18-1552, 2019 WL
156668, at *2 (Iowa Ct. App. Jan. 9, 2019) (collecting cases that consider a
parent’s failure to seek mental-health treatment a factor weighing in favor of
termination of parental rights). The DHS requested the mother complete a mental-
health evaluation in July 2019 after the DHS learned the mother had acted
erratically around others. A DHS worker then observed this erratic behavior
personally in September 2019 when the worker assigned to the case observed the
mother yelling at the children's father and accusing him of various acts of abuse
as well as drug use during a meeting between the worker and the parents in
relation to a hearing. The DHS worker experienced phone calls with the mother
where, in one call, the mother would be highly agitated and argumentative, and
then, in a second call minutes later, the mother would sound calm, collected, and
responsive.
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The juvenile court ordered the mother to undergo a mental-health
evaluation, but she did not appear at the scheduled time, resulting in the mother
being committed for two days. The mother completed a mental-health evaluation
in November 2019, and she was diagnosed with depression and bipolar disorder.
Individual therapy and medication was recommended for her. Despite the
recommendation, the mother did not attend therapy until April 2020. Even then,
the mother did not appear engaged and did not believe she had any issues that
needed to be addressed. The longest she stayed at a session was approximately
twenty-three minutes. At her May appointment, which was conducted over the
phone, the mother’s therapist called the mother and found out the mother was
walking around Walmart during the appointment. The mother told her therapist
she had nothing to talk about, and the session ended after six minutes. The mother
then did not attend any therapy sessions from July until the termination hearing.
Similarly, the record shows the mother has not consistently visited the
children. After the children were removed in September 2019, the mother began
attending supervised visits with them. At some visits, the mother was not prepared
and in one case required the mother’s grandparents to provide the children with
food. The mother did not attend other in-person visits, and she missed multiple
visits hosted by videoconference. The mother claimed she missed some visits due
to her exposure to COVID-19, but she offered no plausible explanation why she
missed the visits conducted by videoconference.
The record also shows the mother has not adequately addressed improving
her parenting skills. At the suggestion of service providers, the mother enrolled in
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a parenting course, but she was discharged for nonattendance after attending only
eight of eighteen sessions.
The mother has also failed to maintain stable housing and employment.
She has bounced between living with her grandparents, the father, and with family
friends throughout these proceedings, often moving after only a few months. The
mother was living with her grandparents again at the time of the termination
hearing and testified she was planning to move out again soon. The mother has
similarly had unstable employment throughout these proceedings. At the time of
the termination hearing, the mother had only been working in her current job for
three weeks. In the months prior, the mother had changed jobs at least two other
times, working at one for only one month.
In light of the mother’s lack of progress in treating her mental-health issues,
lack of progress in learning to parent the children appropriately, and unstable
housing and employment, we find clear and convincing evidence the children could
not be returned to the mother’s care at the time of the termination hearing.
B. Additional Time
The mother argues that, as an alternative to termination, the juvenile court
should have granted her a six-month extension to work toward reunification. Under
Iowa Code sections 232.117(5) and 232.104(2)(b), the court may authorize a six-
month extension if the court decides not to terminate parental rights and “the need
for removal of the child from the child’s home will no longer exist at the end of the
additional six-month period.” As previously discussed, these proceedings have
been ongoing since July 2019. In that time, the mother has not made meaningful
efforts to address her mental-health issues and has not demonstrated an ability to
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maintain stable housing and employment. She was no more a suitable placement
option at the time of the termination hearing than she was at the time of removal
over a year earlier. “The ‘legislature has established a limited time frame for
parents to demonstrate their ability to be parents.’ The time frame is six months.”
Z.P., 948 N.W.2d at 524 (quoting In re A.S., 906 N.W.2d 467, 474 (Iowa 2018)).
We cannot discern any basis for believing the need for removal will no longer exist
after another six months.
C. Best Interests
Having concluded the statutory grounds for termination have been shown,
we next consider whether terminating the mother’s parental rights is in the
children’s best interests. A.S., 906 N.W.2d at 473 (“If we determine ‘that a ground
for termination has been established, then we determine whether the best-interest
framework as laid out in section 232.116(2) supports the termination of parental
rights.’” (quoting In re M.W., 876 N.W.2d 212, 219–20 (Iowa 2016))). At this step
of the analysis, we “give 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].” Iowa
Code § 232.116(2).
At the time of the termination hearing, the children were one and two years
old. They both lived much of their lives bouncing between relative placement and
foster care. Both the children’s guardian ad litem and the DHS recommend
termination. Their current relative placement indicated a willingness to adopt the
children in the event the mother’s parental rights are terminated. The children’s
best interests are served by placing them in a stable, nurturing environment, which
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the mother cannot provide. We conclude termination is in the children’s best
interest.
D. Permissive Exception
Finally, the mother argues termination is unnecessary because the children
are placed with relatives. She cites Iowa Code section 232.116(3)(a), which allows
the juvenile court to not terminate a parent’s parental rights when “a relative has
legal custody of the child.” We note the exception relied upon by the mother is
permissive, not mandatory, so the court is not required to apply it even if it has
been established. See A.S., 906 N.W.2d at 475 (noting the permissive nature of
exceptions in Iowa Code section 232.116(3)). As the parent resisting termination,
she bears the burden of proof to establish the exception upon which she relies.
See id. at 476.
We note the mother’s failure to advance arguments in support of this issue
constitutes waiver of the issue. See State v. Tyler, 867 N.W.2d 136, 166 N.14
(Iowa 2015) (indicating a “passing reference” in a brief in insufficient to avoid
waiver of an issue).2 Even if the record shows the children were in the custody of
relatives at the time of the termination hearing,3 the mother advances no argument
2 The entirety of the mother’s argument on this issue is: “The Court did not need
to terminate parental rights as these children are in a relative placement. It is not
in their best interests due to their bond with [the mother] and their attachment to
her.” This perfunctory argument is nothing more than a “passing reference” and is
insufficient to avoid waiver.
3 The State argues the children were in the custody of the DHS rather than with
relatives and, therefore, section 232.116(3)(a) does not apply. The record is not
crystal clear on this point, as there are orders in both the termination files and the
underlying CINA files that create ambiguity whether custody was placed with the
DHS or with the grandparents. We choose to resolve this ambiguity by assuming
for the sake of this opinion that custody was with the grandparents rather than the
DHS. We make this choice based on the juvenile court’s order filed in the CINA
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how that fact leads to a conclusion termination should not occur. See A.S., 906
N.W.2d at 476 (noting a relative had legal custody of the child, thus establishing
the facts of the exception, but refusing to apply the exception because the parent
“failed to meet her burden to establish that the grandparents’ temporary custody
of the child should preclude termination of [the parent’s] rights”). To the extent she
is suggesting a guardianship with the relatives is in order, we note that “a
guardianship is not a legally preferable alternative to termination.” See id. at 477
(quoting In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App. 2017)). Further, any claimed
bond between the mother and the children also does not justify denying
termination, as the children are very young and have spent much of their lives out
of the mother’s care. Upon our de novo review, we find the mother has not met
her burden to show relative placement should preclude termination.
IV. Conclusion
Having found no merit in the mother’s claims the juvenile court erred in
terminating her parental rights, we affirm.
AFFIRMED.
cases on May 26, 2020. That order, which appears to be the last order addressing
custody prior to the termination order, placed custody of the children with the
paternal grandparents.