In the Interest of C.B. and C.B., Minor Children ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0814
Filed September 22, 2021
IN THE INTEREST OF C.B. and C.B.,
Minor Children,
A.P., Mother,
Appellant,
Z.B., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, Rose Anne
Mefford, District Associate Judge.
A mother and father each appeal a district court order terminating their
parental rights. AFFIRMED ON BOTH APPEALS.
Patrick J. Mahaffey of Mahaffey Law Office, Montezuma, for appellant
mother.
Lynette M. Lindgren of Faulkner, Broerman & Lindgren, Oskaloosa, for
appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Misty White, Sigourney, attorney and guardian ad litem for minor children.
Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.
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SCHUMACHER, Judge.
A mother and father each appeal a district court order terminating their
parental rights. We grant the parents’ requests for consideration of their petitions
on appeal, which were filed three days late. There is sufficient evidence in the
record to support termination of the mother’s parental rights, an extension of time
is not warranted, and termination of the mother’s parental rights is in the children’s
best interests. We find it is in the children’s best interests to terminate the father’s
parental rights and the court properly did not apply any of the exceptions to
termination. We affirm the district court’s decision terminating the parents’ rights.
I. Background Facts & Proceedings
A.P., mother, and Z.B., father, are the parents of C.B., born in 2012, and
C.B., born in 2015. The children were removed from the father’s care on
January 15, 2020, due to his use of methamphetamine while caring for the
children. Also, police officers found methamphetamine in the home within the
reach of the children. The children were placed with the mother for a short period
of time but then removed because she was using methamphetamine. The children
were placed with a maternal aunt and uncle.1
The children were adjudicated to be in need of assistance (CINA), pursuant
to Iowa Code section 232.2(6)(c)(2), (n), and (p) (2020). After removal, the
children disclosed that they had been physically abused by the parents. The
children had very poor dental hygiene and had severe dental decay. They needed
multiple tooth extractions, caps, and root canals. The older child was diagnosed
1 The maternal aunt and uncle became licensed foster parents during the course
of the case.
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with generalized anxiety disorder and attends therapy. Her anxiety mainly involved
the parents. The younger child was diagnosed with attention deficit hyperactivity
disorder.
The father entered a series of substance-abuse treatment programs but did
not successfully complete any of them. The father had long periods where he was
not in contact with the Iowa Department of Human Services (DHS) or the children.
The mother entered a methadone treatment program. A report from January 2021
states the mother had poor attendance for methadone treatment and she recently
tested positive for methamphetamine. The mother was discharged from the
program due to these problems.
On January 13, the State filed a petition seeking termination of the parents’
rights. The termination hearing was held on February 17. At the time of the
hearing, DHS was not able to contact the mother and did not know where she was
residing. She was inconsistent in attending supervised visitation. The mother had
a substance-abuse evaluation but did not follow recommendations for treatment,
and did not consistently participate in random drug tests. She did not have a
mental-health evaluation or treatment. The father was in a residential substance-
abuse treatment program. He did not maintain contact with DHS. He attended
few visits. The father did not complete a mental-health evaluation.
The district court entered an order on May 31, terminating the parents’ rights
under section 232.116(1)(f) and (l) (2021). The court found:
To return the children to their home at this time would subject
the children to the following adjudicatory harms: Neither parent has
a home to return the children to. Both parents have severe
substance abuse addictions and have not been able to successfully
complete treatment. Neither parent obtained a Mental Health
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evaluation. For these reasons all of the same harms are present that
were present when the children were removed in January of 2020,
plus the additional harm of no home for the children to reside in.
The court determined that termination of the parents’ rights was in the best
interests of the children. The mother and father appeal the juvenile court’s
decision.
II. Delayed Petitions on Appeal
The mother and father each filed a timely notice of appeal following the
juvenile court’s decision on May 31, 2021. The father filed a notice of appeal in
the juvenile court on June 10, which was within fifteen days after the court’s final
order. See Iowa R. App. P. 6.101(1)(a) (providing that a notice of appeal in
termination cases must be filed within fifteen days after a final order or judgment).
The mother’s notice of appeal was filed on June 14. See id.
Under Iowa Rule of Appellate Procedure 6.201(1)(b), the parents were
required to file a petition on appeal “within 15 days after the filing of the notice of
appeal with the clerk of the district court.” The father’s petition on appeal was due
on June 25, fifteen days after the notice of appeal was filed. See Iowa R. App.
P. 6.201(1)(b). The father’s petition on appeal was filed on June 28, which was
three days late. The mother’s petition on appeal was due on June 29. She filed
her petition on appeal on July 2, which was also three days late.
On its own motion, the Iowa Supreme Court found the father’s petition on
appeal was untimely. The court requested that the father file “a statement
regarding whether a delayed appeal should be granted,” and cited In re A.B., 957
N.W.2d 280, 292 (Iowa 2021). The father stated that he wanted to appeal the
termination order and asked the court to grant him a delayed appeal. The father’s
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counsel asserted that she was out of the state from June 11 to 19, and took full
responsibility for the improper calendaring of the due date for the petition on
appeal. The father claimed that the slight delay in filing the petition on appeal
would not unnecessarily prolong the appeal process.
At the time the mother filed her petition on appeal on July 2, she also filed
a motion to have her petition on appeal considered to be timely. The mother cited
to A.B., and claimed that based on the court’s decision in that case, her petition on
appeal should be considered, although it had been filed three days late. See 957
N.W.2d at 292. The mother’s counsel took responsibility for the late filing and
apologized for the mistake. The Iowa Supreme Court directed that the issue
concerning the delayed petitions on appeal by the mother and father be submitted
with the appeal.
The Iowa Supreme Court recently determined a delayed petition on appeal
may be granted in termination cases. Id. at 290. A delayed petition on appeal is
permitted “only where the parent clearly intended to appeal and the failure to timely
perfect the appeal was outside of the parent’s control.” Id. at 292. Also, “an
untimely appeal should be allowed to proceed only if the resulting delay is no more
than negligible.” Id. In A.B., the father’s attorney took “the blame for not properly
calendaring the deadline” due to personal circumstances. Id. at 293. The court
determined a “two-day delay did not unnecessarily prolong the appeal process.”
Id. The court stated, “We simply cannot let the significant rights at stake be
outweighed by the negligible delay involved here.” Id.
Based on the supreme court’s ruling in A.B., we find the parents’ petitions
on appeal should be considered, although they were filed outside the fifteen-day
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deadline found in rule 6.201(1)(b). The parents intended to appeal, and the timing
of the filing of the petitions on appeal was outside their control. See id. at 292.
Counsel for each parent took responsibility for the late filing of the petition on
appeal. See id. at 293. Furthermore, the resulting delay of three days was “no
more than negligible” and did not delay the appeal process. See id. at 292–93.
III. Standard of Review
Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d
764, 773 (Iowa 2012). The State must prove its allegations for termination by clear
and convincing evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). “‘Clear
and convincing evidence’ means there are no serious or substantial doubts as to
the correctness [of] conclusions of law drawn from the evidence.” Id. Our primary
concern is the best interests of the children. In re J.S., 846 N.W.2d 36, 40 (Iowa
2014).
IV. Mother
A. The mother claims there is not sufficient evidence in the record to
support termination of her parental rights. “We will uphold an order terminating
parental rights where there is clear and convincing evidence of the statutory
grounds for termination.” In re T.S., 868 N.W.2d 425, 434 (Iowa Ct. App. 2015).
“When the juvenile court orders termination of parental rights on more than one
statutory ground, we need only find grounds to terminate on one of the sections to
affirm.” Id. at 435. We focus on the termination of the mother’s parental rights
under section 232.116(1)(f).2
2 A parent’s rights may be terminated under section 232.116(1)(f) if the court finds:
(1) The child is four years of age or older.
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In applying section 232.116(1)(f), we consider whether the child could be
safely 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). At the hearing in February 2021, DHS
was not able to contact the mother and did not know where she was residing. The
mother had a substance-abuse evaluation but did not follow recommendations for
treatment and did not consistently participate in random drug tests. She was
discharged from the methadone program because of inconsistent attendance and
positive drug tests. The mother was also inconsistent in attending supervised
visitation. We conclude the children could not be safely returned to the mother’s
care and her parental rights were properly terminated under section 232.116(1)(f).
B. The mother asks for an extension of time to work on reunification
with the children. She asserts that she was actively participating in all
recommendations ordered by the court. She claims that the children’s stability
would not be impacted by an extension of time.
The court may decide to not terminate parental rights if it finds there is clear
and convincing evidence that CINA proceedings should continue and enters an
order to extend the time for reunification in accordance with section 232.104(2)(b).
Iowa Code § 232.117(5). The court may continue the proceedings for an additional
(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.
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six months if the court finds “the need for removal . . . will no longer exist at the
end of the additional six-month period.” Id. § 232.104(2)(b).
The district court found conditions had not improved since the children were
removed, and in fact, had gotten worse, as the mother did not have adequate
housing for the children at the time of the termination hearing. The court
determined the children could not be returned to the mother’s care within a
reasonable period of time. We conclude it is unlikely that the need for removal
would no longer exist at the end of six months. See id. We find that an extension
of time is not in the children’s best interests.
C. The mother contends that termination of her parental rights is not in
the children’s best interests. In considering the best interests of children, 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 needs of the child[ren] under section 232.116(2).” In re P.L., 778
N.W.2d 33, 41 (Iowa 2010). “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.” Id.During the time the juvenile court case was pending, the mother did not
make significant progress towards reunification with the children. She was still
struggling with substance abuse. She had not addressed her mental-health
issues. The mother did not have stable housing. She was inconsistent in attending
visitation with the children. The children need security and stability the mother is
not able to provide. We determine that termination of the mother’s parental rights
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is in the children’s best interests. We affirm the juvenile court order terminating
the mother’s parental rights.
V. Father
A. The father claims it is not in the best interests of the children to
terminate his parental rights. He asserts the children should be placed in a
guardianship. He points out that the children are in the care of a maternal aunt
and uncle. He states that under a guardianship with the maternal aunt and uncle
the children could continue to have stability but still maintain contact with the
parents.
In general, “a guardianship is not a legally preferable alternative to
termination.” In re W.M., 957 N.W.2d 305, 315 (Iowa 2021) (citation omitted). A
guardianship does not offer the same level of stability as termination of the parents’
rights and adoption because a guardianship may be terminated or the guardians
may be removed and different guardians appointed. See In re A.S., 906 N.W.2d
467, 478 (Iowa 2018). “Although a guardianship may provide some permanency,
it does not necessarily provide stability for the child. So long as a parent’s rights
remain intact, the parent can challenge the guardianship and seek return of the
child to the parent’s custody.” In re R.S.R., No. 10-1858, 2011 WL 441680, at *4
(Iowa Ct. App. Feb. 9, 2011).
We conclude termination of the father’s parental rights is in the children’s
best interests, rather than placing them in a guardianship. The children need more
stability than a guardianship could provide. In addition, the father was not able to
provide a stable environment for the children. At the time of the termination
hearing, he was still addressing his substance-abuse problems.
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B. The father contends the district court should have decided not to
terminate his parental rights because termination would be detrimental to the
children due to the closeness of the parent-child relationship. See Iowa Code
§ 232.116(3)(c). “The factors weighing against termination in section 232.116(3)
are permissive, not mandatory.” In re A.R., 932 N.W.2d 588, 591 (Iowa Ct. App.
2019) (quoting In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App. 2011)). “The
court may exercise its discretion in deciding whether to apply the factors in
section 232.116(3) to save the parent-child relationship based on the unique
circumstances of each case and the best interests of the children.” Id. (citing In re
A.M., 843 N.W.2d 100, 113 (Iowa 2014)).
The juvenile court found the father did not have a close bond with the
children. He was very inconsistent in attending visitation. The father went through
periods of time when he was not in contact with DHS or the children. The court
found the children had a close bond with the maternal aunt and uncle who had
been caring for them since they were removed from the parents’ care. We agree
that an exception to termination should not be applied in this case. We affirm the
district court’s ruling terminating the father’s parental rights.
AFFIRMED ON BOTH APPEALS.