A.B., A.C. and A.C. ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 20–1266
Submitted January 20, 2021—Filed April 2, 2021
IN THE INTEREST OF A.B., A.C., and A.C.,
Minor Children,
T.D., Mother, and S.W., Father,
Appellants.
Appeal from the Iowa District Court for Polk County, Susan Cox,
District Associate Judge.
A mother of three children appeals termination of her parental rights
and the father of one of the children appeals termination of his parental
rights. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Oxley, J., delivered the opinion of the court in which Christensen,
C.J., and Appel, Waterman, and Mansfield, JJ., joined. McDermott, J.,
filed an opinion concurring in part and dissenting in part in which
McDonald, J., joined.
Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for
appellant mother.
Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, for appellant
father of A.C.
Thomas J. Miller, Attorney General, Ellen Ramsey-Kacena,
Assistant Attorney General, and Kevin Brownell, Assistant County
Attorney, for appellee.
2
Kimberly A. Graham of Graham Law Collaborative, Indianola,
attorney and guardian ad litem for minor children.
3
OXLEY, Justice.
This appeal involves the termination of parental rights of a mother
to her three children and the termination of parental rights of the father of
one of the children. Mom timely appealed. Dad of one of the children filed
a timely notice of appeal but filed his petition on appeal two days late. He
asks us to grant him a delayed appeal and excuse the untimeliness of his
petition. As discussed below, we conclude we should recognize delayed
appeals in termination-of-parental-rights cases in certain limited
circumstances and grant the father’s application for delayed appeal. We
therefore consider whether the termination of parental rights was proper
as to both Mom and Dad.
At the outset, we note that although the guardian ad litem (GAL)
originally supported termination of parental rights, following the
termination hearing she changed her recommendation. On appeal, she
urges us to carefully scrutinize the record of this case and reverse the
judgment of the juvenile court. Upon our de novo review of the record, we
reverse termination as to Mom but not as to Dad.
I. Factual Background and Proceedings.
This case involves three children, all of whom have different
biological fathers and the same biological mother. We refer to the mother
as “Mom” throughout the case. From oldest to youngest, the children are
A.B., born in December 2012; A.C.1, born in April 2017; and A.C.2, born
in November 2018. A.B.’s father had minimal involvement in the case and
did not appeal. A.C.2’s father has also been minimally involved and also
did not appeal. He is an important figure in the background of the case
since before A.C.2 was born, and since he has the same initials as two of
the children, we will refer to him by his first name, Akoya. Dad is the
father of A.C.1, has been involved in the case, and appealed termination
4
of his rights. We will refer to him as “Dad.” Notably, Mom and Dad also
share another daughter, A.W., who was born during the pendency of the
present proceedings and is the subject of other proceedings not here
involved.
A. Origins of DHS Involvement. Mom was brought to the
attention of the department of human services (DHS) on September 13,
2018. At the time, Mom was seven months pregnant with A.C.2, Akoya’s
child. Around 12:30 a.m., Mom parked at a Quik Trip and walked to
Budget Inn, where she “banged” on the door to Akoya and his then-
girlfriend’s hotel room. The girlfriend called the police because Mom was
violating a no-contact order the girlfriend had against Mom. Mom
explained her presence as an attempt to get money from Akoya and
admitted one-year-old A.C.1 was in her car nearby.
The police discovered A.C.1 alone in the car and removed her from
her mother’s care. Based on the incident, the police arrested Mom and
charged her with violation of a no-contact order, driving while barred, and
neglect of a dependent person. They contacted DHS personnel, who took
A.C.1 to a nearby hospital. Medical personnel noted A.C.1 was unwashed,
her clothes were dirty, and her diaper was filled with urine. Mom was
taken to jail and remained there until November 15. The court entered a
no-contact order between Mom and A.C.1, which Mom did not contest.
DHS investigated the case and discovered A.B., A.C.1’s older sibling,
was already staying at the maternal grandmother’s house. DHS placed
A.C.1 and A.B. in the maternal grandmother’s custody and filed a child in
need of assistance (CINA) petition for each child. DHS issued a founded
report of abuse against Mom based on failure to supervise, and both
children were adjudicated CINA.
5
Mom pled guilty to child endangerment, acknowledging she had
placed A.C.1 in great danger. The court dismissed the no-contact order
between A.C.1 and Mom and gave Mom a suspended sentence and
probation. While in jail, Mom was diagnosed with depression. She also
acknowledged her relationship with Akoya was “very unhealthy.” Less
than a month after Mom’s release from jail, A.C.2 was born. DHS removed
A.C.2 from Mom’s care and placed him with his maternal grandmother,
who had custody of the older two children.
On December 24, Mom’s brother got into a physical altercation with
their sister at the maternal grandmother’s house that ended only when
their sister picked up a knife. All three of Mom’s children were in the home
at the time of the altercation, and at least A.B. witnessed the violence. As
a result, DHS removed the children from the maternal grandmother’s care
and placed the children into shelter care. A.C.2 was adjudicated CINA on
January 8, 2019. Around the same time, Mom moved into a domestic
violence shelter. The State placed A.C.2 with Mom.
B. History Following Removal from the Maternal Grandmother.
DHS began supervised visitation for Mom with the children in January
2019. At the request of DHS, Mom also began therapy at Children and
Families of Iowa. When visitation first commenced, A.B. was resistant. He
complained that he did not want to see his mother and would physically
act out. However, each time A.B. acted out, workers noted Mom handled
his behavior well by giving him space and winning him over so that by the
end of the visit he did not want to leave Mom.
In February, DHS approved semisupervised visits and overnight
visits between Mom and A.B. and A.C.1 at the shelter. Case notes from
the time indicate concerns over Mom’s homelessness, her time in jail, her
allowing unsafe people to be around her children, and her mental health.
6
Yet they also discussed her consistent visits with the children, during
which she interacted appropriately and engaged the children in age-
appropriate activities. On February 19, the children were returned to Mom
at the shelter.
Mom got her own apartment in early April, and DHS removed the
requirement that she reside at the shelter to retain custody. However,
Mom got in two altercations with Akoya’s girlfriend, one on March 22 and
the second on April 29, after which she was again arrested. DHS
petitioned to remove the children from her care on May 1.
C. Placement of the Children in Foster Care. A.B. was placed
with his paternal grandmother while A.C.1 and A.C.2 were placed in
separate foster care placements, one in Grimes and the other in Ankeny.
This meant there was a significant distance between the placements.
Mom started dating Dad again in March, and he attended some
visits with Mom. Notes from visits during the May to June time period
document positive family interactions, including strong bonds between
Mom and her children. A.B.’s resistance to visits did not continue beyond
the first couple of months.
At the beginning of its involvement, DHS recommended Mom engage
in counseling services to address her mental health as well as her
relationship and domestic violence concerns. Mom began sessions with a
mental health counselor in January 2019 and consistently and
substantively engaged with her counselor throughout the case. In an
accountability letter Mom completed with her therapist in July 2019, she
acknowledged her relationship with Akoya was not healthy. She also
worked with her therapist on maintaining healthy relationships when she
began her relationship with Dad.
7
Mom contends DHS ceased making reasonable efforts toward
reunification during the summer and fall of 2019. She compiled a list of
missed visits starting in July. For the most part, Mom’s calendar aligns
with DHS’s reports, though there is some disagreement on specific dates.
However, discrepancies become more significant in September and
October. These included cancelled visitation and additional services DHS
failed to provide.
On August 16, DHS requested drug tests from both Dad and Mom.
Dad tested positive for marijuana, amphetamines, and cocaine. Mom did
not complete the test until August 19, allegedly because she could not get
a ride. Mom tested positive only for marijuana and at a low level near the
test’s cutoff value. Based on this drug test and an assumption Mom would
have tested positive for cocaine on the 16th, DHS returned to fully
supervised visits starting August 19.
Following her positive drug screen in August 2019, DHS requested
Mom complete a substance abuse evaluation and participate in substance
abuse counseling. Mom completed the evaluation and was initially
screened to receive early intervention substance abuse services. She
regularly participated in substance abuse counseling, including frequent
random and observed drug screens. After Mom tested positive for THC in
October, her counselor modified her treatment level to extended outpatient
services in November. Mom submitted consistently negative drug screens
thereafter, with one exception in February 2020, when she tested positive
for cocaine. She engaged in services with her substance abuse counselor
throughout the case.
In November, Mom moved for a reasonable efforts hearing. She cited
frequently cancelled visits, lack of sibling visits and related transportation
8
issues, and failure to move forward with less restrictive visits as reasons
DHS was not making reasonable efforts.
D. December Incident. On December 3, 2019, Dad and Mom got
into an altercation that led to each being arrested. The altercation began
because Mom had decided to end her relationship with Dad and asked him
to leave her apartment. He refused at first, and when he did agree to leave,
he insisted on taking an Xbox from the apartment. Mom told him he could
not take the Xbox because A.B. liked playing with it. This escalated into
physical fighting, apparently instigated by Dad. The fight ended when
Mom grabbed a knife.
Both parties were arrested for domestic abuse assault. Dad had
been driving a stolen vehicle, so he was also charged with operating a
vehicle without the owner’s consent. Dad was able to bond out of jail, but
Mom remained there for almost the entirety of December. The court
entered a no-contact order between Mom and Dad. Dad entered Alford1
pleas to disorderly conduct and operating a vehicle without the owner’s
consent.
The charges against Mom were dropped, and she was released from
jail on December 28. Despite the no-contact order, she called Dad to pick
her up. She also called Dad repeatedly while in jail, later explaining she
did so because she was bored and so she could ask Dad about the
children. She later admitted she should not have done so.
Mom resumed visits on January 3, 2020. Positive themes regarding
her parenting continued through January, February, and March.
Nonetheless, DHS moved to terminate Mom’s and both fathers’ parental
rights to the younger two children, A.C.1 and A.C.2, on February 7.
1See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).
9
Mom gave birth to a new daughter, A.W., in April 2020. Dad is also
A.W.’s father.
E. COVID-19.
In March 2020, DHS changed its visitation protocols based on the
COVID-19 pandemic. Thereafter, visits were primarily by video calls.
These calls were difficult for all parties at times. When A.B. had trouble
focusing, Mom arranged to be physically present with him at the home of
his paternal grandmother. Mom also struggled at times with the video
chatting format, sometimes not fully engaging in the visits and leaving
workers to interact with the children. The video chats were shorter than
usual visits, but the caseworker explained that “[Mom] sacrificed that time
because she could see, for the well-being of her children, asking them to
stay on those Zoom visits was not appropriate.”
F. Dad’s Involvement. Dad was confirmed as A.C.1’s father in
January 2019, and DHS agreed to involve him in the case. During the
time the children were living with Mom from January 2019 through April
2019, Dad did not attend any visits with A.C.1. Following the children’s
removal in May, Dad contacted DHS seeking custody of A.C.1 and began
visits with her in mid-May 2019. Thereafter, since Dad and Mom were in
a relationship, both attended visits with A.C.1.
Following Dad’s August 16 positive drug test, DHS workers
requested he get a substance abuse evaluation and begin substance abuse
treatment. He did not follow through on this request.
Following the December 2019 domestic assault incident, Dad and
the maternal grandmother continued to have visitation with all the
children while Mom was in jail. Dad participated in the visits, but the
maternal grandmother did most of the parenting. Dad missed a scheduled
visit on January 3, 2020, and had sporadic visits through the spring,
10
purportedly because his work schedule interfered. It does not appear he
participated in remote visits following the change to DHS protocols caused
by COVID-19.
Dad experienced difficulty finding stable housing throughout this
case. Apart from the time he lived with Mom, he lived with family members
and moved from place to place. Dad also refused to engage in therapy,
despite DHS’s requests to complete a mental health evaluation, and it
appears Dad never meaningfully engaged in substance abuse treatment.
G. Reasonable Efforts and Termination of Parental Rights. DHS
moved to terminate parental rights to the younger two children on
February 7, 2020. The court consolidated Mom’s November 2019 motion
for reasonable efforts with a permanency hearing on February 27. Mom
filed an amended motion for reasonable efforts prior to that hearing,
arguing a handful of new grounds.
At the hearing held on February 27, the parties learned Akoya
(A.C.2’s father) and his appointed attorney had a conflict. The court then
continued the hearing with respect to both A.C.1 and A.C.2. The court
decided to proceed on a permanency hearing for just A.B., combined with
the reasonable efforts hearing for A.B. alone, over Mom’s objection. The
trial was bifurcated into a reasonable efforts and permanency hearing for
A.B., and a later reasonable efforts and termination proceeding for A.B.,
A.C.1, and A.C.2. The second hearing did not take place until June 26.
The court waited to rule on any of the motions until after the second
hearing.
The Court Appointed Special Advocate (CASA) report submitted at
the February 2020 hearing is illuminating. The CASA noted A.C.1 was
well bonded to her foster family but appeared also bonded to Mom. The
CASA also acknowledged the strong bond between A.B. and Mom.
11
However, she noted that A.B. had taken Mom’s arrest hard and that he
had been discussing the arrest as a problem A.B. and Mom shared. Yet,
“[Mom] recognized that this has been very hard on [A.B.]. Physically he is
doing well. . . . However, emotionally and behaviorally he struggles. He
has been waiting this whole time to come home.”
The CASA had discussed the domestic incident between Dad and
Mom with Mom, who acknowledged that she understood the real concern
was not her parenting but her relationships. Mom told the CASA she had
concluded she should not be in a relationship and should focus on her
children. The CASA noted, “[Mom] was tearful and showed genuine
remorse as she thought of her children and all that they have been
through.”
The CASA concluded Mom and Dad still appeared to be together
following Mom’s release from jail based on a photograph posted January
1, 2020, on Facebook of them kissing. Yet, the CASA also held the
“impression that [Mom] is trying to distance herself from [Dad] given that
he is at odds with the advice and recommendations of DHS.”
In her February 2020 recommendation, the CASA noted that “[t]here
is no problem with the bond between [Mom] and her children. [Mom]
clearly loves her children and wants to remain involved in their lives.”
However, the CASA stated, “Unfortunately the relationship drama
concerning [Akoya] that started this case in the first place just seems to
have continued with [Dad], with no end in sight given that [Mom] is now
expecting a second child with [Dad]”
In the CASA report for June 2020, the CASA scaled back many of
her prior concerns. She highlighted that Mom had a good bond with the
children and that she “loves, cares for, and is concerned about the
children. She shows a strong desire to be involved in their lives. She
12
attends doctor[’]s visits. She pumps milk for and breastfeeds the new
baby.” However, the CASA was insistent in her belief that Mom and Dad
had continued a clandestine relationship. The reason she recommended
termination was, specifically, “[d]ue to [Mom] and [Dad] still [being]
together and choosing not to stop abusing drugs and/or seek treatment,”
despite the many negative drug screens Mom provided and her lengthy
participation in treatment. The report also noted that “[Mom] and [Dad]
would benefit from parent skills training to ensure they create a safe home
environment,” despite the extensive documentation of Mom’s participation
and excelling in such services.
Ultimately, the court denied Mom’s motion for reasonable efforts and
terminated the parental rights of all parents in a ruling issued on
September 20. Mom timely filed an appeal. Neither A.B.’s father nor
Akoya appealed. Dad timely filed a notice of appeal but did not timely file
his petition on appeal. The State moved to dismiss Dad’s petition.
II. Delayed Appeals in Termination-of-Parental-Rights Cases.
We start our legal analysis by determining whether we can hear the
father’s appeal. Dad’s attorney filed a timely notice of appeal on October
4, 2020. However, the petition on appeal was not filed until October 21,
seventeen days later and beyond the fifteen-day period required by Iowa
Rule of Appellate Procedure 6.201(1)(b). Dad’s attorney candidly admits
the late filing was her fault, explaining she was quarantined and working
from home because her daughter had tested positive for COVID-19 and
she failed to properly calendar the petition’s due date on her remote
calendar.
Because our rules preclude extensions for the filing period for
petitions on appeal, see Iowa R. App. P. 6.201(1)(b), Dad asks us to
recognize delayed appeals for cases involving the termination of parental
13
rights, similar to those allowed in criminal cases. While Dad’s notice of
appeal was timely, our rules require the petition on appeal to also be timely
filed before the appeal is deemed properly perfected. See id. r. 6.102(1)(b)
(“An appeal in a termination-of-parental-rights . . . case will be dismissed
unless a petition on appeal is timely filed . . . .”); id. r. 6.201(3) (“If the
petition on appeal is not filed . . . within 15 days . . . , the supreme court
shall dismiss the appeal, and the clerk shall immediately issue
procedendo.”).
We have previously recognized “delayed appeals” in criminal cases
as an exception to our jurisdictional rules.2
Ordinarily the failure to take a criminal appeal within the
specified time limits requires dismissal for lack of jurisdiction.
We have, however, granted applications for a delayed direct
appeal where a defendant “has made a good faith effort to
perfect his appeal and has directed his attorney to proceed
therewith but due to a technical irregularity the appeal was
either filed late or notice was improperly served.”
2In the dissent’s view, failure to comply with rule 6.201(1)(b) is mandatory and
jurisdictional, which prevents our court from even proceeding. We have never addressed
whether the fifteen-day period for filing a petition on appeal contained in rule 6.201(1)(b)
is actually jurisdictional. Query whether that rule, not subject to legislative oversight as
is the time period for filing the notice of appeal in rule 6.101, is strictly jurisdictional. See
Iowa Code § 602.4201(3)(d) (2020) (requiring only rules of appellate procedure 6.101
through 6.105, 6.601 through 6.603, and 6.907 to proceed through the legislative council
rulemaking process contained in Iowa Code section 602.4202); Root v. Toney, 841 N.W.2d
83, 90 (Iowa 2013) (recognizing that the notice of appeal deadline contained in rule 6.101
is effectively statutory although it is contained in our rules because “[t]he rulemaking
requirements [in Iowa Code section 602.4201(3)] include submission of a proposed rule
change to the legislative council, which has the power to delay implementation to allow
the general assembly to enact a bill changing the rule [pursuant to Iowa Code section
602.4202]”).
Putting that issue aside, the dissent’s insistence that we cannot proceed with a
case where the appellant fails to comply with our appeal procedures ignores that the
criminal cases where we have recognized delayed appeals did so despite clear
jurisdictional infirmities. Further, the dissent’s legalistic position and reliance on the
views of dissenting United States Supreme Court justices about federal court jurisdiction
(where our rule would be considered a claims-processing rule rather than a jurisdictional
mandate in any event, see Hamer v. Neighborhood Hous. Servs. of Chi., 583 U.S. ___, ___,
138 S. Ct. 13, 21–22 (2017), does not sway our obligation to apply our own law.
14
State v. Anderson, 308 N.W.2d 42, 46 (Iowa 1981) (citation omitted)
(quoting Cleesen v. State, 258 N.W.2d 330, 332 (Iowa 1977)). Having long
recognized delayed appeals in criminal cases, we see no principled reason
to not also recognize them in termination-of-parental rights cases in the
very limited circumstances we describe below.
In the context of criminal cases, we have allowed delayed appeals as
a remedial procedure that excuses a party’s failure to timely perfect their
appeal in the very limited situation “where it appears that state action or
other circumstances beyond appellant’s control have frustrated an
intention to appeal” and denial of the right to appeal implicates the
appellant’s constitutional rights. Swanson v. State, 406 N.W.2d 792, 792–
93 (Iowa 1987) (citing State v. Horsey, 180 N.W.2d 459, 460 (Iowa 1970),
and Ford v. State, 258 Iowa 137, 142, 138 N.W.2d 116, 119 (1965), as
recognizing availability of delayed appeals but denying application where
petitioner for postconviction relief, acting without advice of counsel,
argued only that he was “misinformed” about the time for filing a notice of
appeal). In State v. Anderson, we allowed a delayed appeal where
defendant’s appointed counsel failed to appeal an underlying judgment
until after resolution of a motion for new trial based on newly discovered
evidence, which made the appeal untimely as to the underlying judgment.
308 N.W.2d at 46. We reasoned that the rules in effect at the time put the
defendant in a difficult spot, concluding that “defendant has made a good
faith effort to appeal and at all times clearly intended to appeal.” Id. In
Horstman v. State, we allowed a delayed appeal where a criminal
defendant’s pro se communications expressing his desire to appeal and
requesting an appointed attorney were filed with the clerk within the time
for filing a notice of appeal but no notice of appeal had been filed. 210
N.W.2d 427, 429 (Iowa 1973).
15
We made clear in Swanson v. State that a delayed appeal is not a
matter of discretion but “is limited to those instances where a valid due
process argument might be advanced should the right of appeal be
denied.” 406 N.W.2d at 793. We recognized the same federal
constitutional considerations were “potentially applicable in some civil
settings.” Id. at 792 n.1.
Prior to July 1, 2001, appeals from termination orders followed the
same procedural rules that applied to all appeals. See Iowa Code
§ 232.133(2) (1999). However, the general assembly amended that section
effective July 1, 2001, providing: “[t]he supreme court may prescribe rules
to expedite the resolution of appeals from final orders entered pursuant to
section 232.117.” 2001 Iowa Acts ch. 117, § 1 (codified at Iowa Code
§ 232.133(2) (2003)). The impetus for the amendment was an effort at the
federal level to encourage prompt resolution of termination proceedings
and accomplish permanency for children as soon as feasible. In re C.M.,
652 N.W.2d 204, 208–09 (Iowa 2002). While family preservation was, and
remains, an important goal of child welfare services, the overriding goal is
the best interests of the child. Prolonging the period during which social
services agencies attempt to either reunify a family or terminate a parent’s
rights can be detrimental to children, for whom permanency is critical to
their best interests. Thus, the focus at the federal level shifted from family
reunification to “time-limited family reunification services.” Id. at 208(quoting 42 U.S.C. § 629(a)(7) (2000 & Supp. II 2002)). We, as a state,
have followed suit. See In re J.H., 952 N.W.2d 157, 170 (Iowa 2020) (“While
we recognize the law requires a ‘full measure of patience with troubled
parents who attempt to remedy a lack of parenting skills,’ Iowa has built
this patience into the statutory scheme of Iowa Code chapter 232.”
(quoting In re Z.P., 948 N.W.2d 518, 523 (Iowa 2020) (per curiam))); see
16
also In re M.D., 921 N.W.2d 229, 233 (Iowa 2018) (“The focus of child
welfare in this country, and Iowa, is now on permanency, and
continuances of court hearings to accommodate parents might offend this
goal.”).
The general assembly left to us whether to expedite the appeal
process, and if so, the specific rules to implement. We took the general
assembly’s heed and enacted rules specific to appeals from Iowa Code
chapter 232 orders. See Iowa R. App. P. 6.101(1), 6.102(1), 6.201–.205.
Now, instead of a thirty-day period to file a notice of appeal followed by the
opportunity for full briefing after the transcript of the proceedings is
available, an appeal from a termination order must be filed within fifteen
days of the order, a petition on appeal must be filed fifteen days after that,
and the response, if any, must follow within another fifteen days. Id. r.
6.101(1)(a), 6.201(1)(b), 6.202(2). Under this expedited process, an appeal
is ready for the court within forty-five days of the final order of termination.
Previously, such appeals took months to reach an appellate court and
would likely still be waiting for the transcript forty-five days after the order
of termination. This expedited process makes sense in light of our focus
on the best interests of the child, since the parties—and importantly the
children—are in a state of limbo while the wheels of justice grind through
the appeal process. See In re A.C., 415 N.W.2d 609, 613 (Iowa 1987)
(“Neither will childhood await the wanderings of judicial process.”).
Nonetheless, we cannot short shrift the importance of the appeal
process to a parent whose parental rights have been terminated. The
“status of parents’ interest in the care, custody, and control of their
children . . . [is] ‘perhaps the oldest of the fundamental liberty interests
recognized by [the United States Supreme] Court.’ ” Santi v. Santi, 633
N.W.2d 312, 317 (Iowa 2001) (quoting Troxel v. Granville, 530 U.S. 57, 65–
17
66, 120 S. Ct. 2054, 2060 (2000)). Thus, the termination of parental
rights, including the appeal process, clearly implicates protected liberty
interests for parents to which due process protections attach. See In re
C.M., 652 N.W.2d at 211 (addressing due process and equal protection
challenges to appeal process limiting appellant to streamlined petition on
appeal rather than full briefing and concluding parent’s rights were
adequately protected by the expedited procedure); see also In re M.D., 921
N.W.2d at 235–36 (holding due process entitled incarcerated parent to
participate in the entire termination proceeding); In re A.M.H., 516 N.W.2d
867, 870 (Iowa 1994) (“It is not disputed that state intervention to
terminate the relationship between [a parent] and [the] child must be
accomplished by procedures meeting the requisites of the Due Process
Clause.” (alteration in original) (quoting Lassiter v. Dep’t of Soc. Servs., 452
U.S. 18, 37, 101 S. Ct. 2153, 2165 (1981) (Blackmun, J., dissenting))).
Indeed, some may consider termination of a parent’s rights a more
significant intrusion than the liberty rights at stake in criminal
proceedings. Cf. In re A.M.H., 516 N.W.2d at 870 (“The right of a parent to
companionship, care, custody, and management of his or her children has
been recognized as ‘far more precious . . . than property rights . . . ,’ and
more significant and priceless than ‘liberties which derive merely from
shifting economic arrangements.’ ” (omissions in original) (citations
omitted) (first quoting May v. Anderson, 345 U.S. 528, 533, 73 S. Ct. 840,
843 (1953), and then quoting Stanley v. Illinois, 405 U.S. 645, 651, 92
S. Ct. 1208, 1212 (1972))).
One of the important safeguards of a parent’s due process rights is
the assistance of counsel. See In re M.D., 921 N.W.2d at 239 (Christensen,
J., concurring in part and dissenting in part) (recognizing “the importance
of the presence of counsel as a safeguard for the parent’s due process
18
rights”). By statute, parents are entitled to appointed counsel in
termination proceedings. See Iowa Code § 232.113 (2020). But what
happens when a parent’s counsel fails to perfect the parent’s appeal and
the appeal is summarily dismissed? Unless a delayed appeal is recognized,
that parent has no further recourse; the termination is final.
This brings us back to the expedited appeal process for termination
orders. We have upheld the expedited process, including both the fifteen-
day period and the use of the streamlined petition instead of a full-blown
brief, against equal protection challenges. See In re L.M., 654 N.W.2d 502,
505–06 (Iowa 2002) (rejecting challenge to fifteen-day period for filing
petition on appeal); In re C.M., 652 N.W.2d at 211 (rejecting challenge to
use of petition on appeal rather than full briefing process). The limited
petition on appeal procedure also satisfies a parent’s due process rights.
See In re C.M., 652 N.W.2d at 211. In short, the expedited appeal process
is “narrowly tailored to address the State’s compelling interest” in
providing permanency. Id.Even though the rules themselves pass constitutional muster, there
still may be circumstances for allowing a delayed appeal. As noted, if an
attorney fails to timely file the notice of appeal or timely complete the
petition on appeal, under our rules the parent lacks any recourse. There
is no corollary to the postconviction relief mechanism used in criminal
cases for the termination of parental rights. Given the clear liberty
interests implicated in termination proceedings, we see no reasoned basis
for refusing to allow a delayed appeal similar to what we have long
recognized in criminal cases. Indeed, the delayed process may be even
more important in this context, where a parent whose rights have been
terminated has no mechanism for challenging the termination other than
through an appeal.
19
That said, we believe the delayed appeal standard should be strictly
circumscribed. We adopt the prerequisites we have applied in criminal
cases and allow a delayed appeal only where the parent clearly intended
to appeal and the failure to timely perfect the appeal was outside of the
parent’s control. We also consider the countervailing interests involved,
as there is much more at stake than the parent’s rights. Children have an
interest in finality so they can move forward with a permanency plan.
Thus, even when the delayed appeal prerequisites are met, we caution that
an untimely appeal should be allowed to proceed only if the resulting delay
is no more than negligible.3
Here, the juvenile court’s termination order was entered on
September 20, Dad timely filed his notice of appeal on October 4, but his
petition on appeal was filed two days late on October 21. Dad’s intent to
appeal is obvious from the timely notice, and his counsel has taken the
blame for not properly calendaring the deadline due to required
quarantining and working from home after her daughter tested positive for
COVID-19.4 We conclude these facts meet the prerequisites for allowing a
delayed appeal. We also note that the two-day delay did not unnecessarily
3While the dissent believes allowing delayed appeals under any circumstances
whatsoever provides “weak medicine with nasty side effects,” we note that in calendar
year 2020, our clerk’s office dismissed only six termination-of-parental rights cases for
filing a late notice of appeal and twenty-three for missing the deadline for filing a petition
on appeal. The strict limits we place on allowing delayed appeals strikes the proper
balance among the significant interests of all parties involved.
4That is not to say an attorney’s inadvertent failure to properly calendar the
deadline for a petition on appeal will entitle her client to a delayed appeal. Such would
effectively write our “no extensions” provision out of the rules, which we have no intention
of doing. Rather, we recognize the extenuating circumstances in this case involving the
heightened quarantining practices required by the coronavirus, particularly in the
October 2020 timeframe involved here, during which Iowa experienced some of its highest
transmission rates, hospitalizations, and deaths. See, e.g., Ryan J. Foley, Iowa’s COVID-
19 Death Rate Among Highest in US, Report Says, AP News (Oct. 23, 2020),
https://apnews.com/article/virus-outbreak-public-health-death-rates-iowa-iowa-city-
fa8a42c8c40ab3d36034a851e922c9ad [https://perma.cc/KMA4-MY4E].
20
prolong the appeal process. We do not downplay the importance of our
expedited rules. But just as recognizing delayed appeals in criminal cases
did not open any floodgates for untimely appeals, we have no reason to
believe recognizing delayed appeals in termination cases will be any
different. We simply cannot let the significant rights at stake be
outweighed by the negligible delay involved here.
III. Standard of Review.
We review termination of parental rights de novo. In re M.W., 876
N.W.2d 212, 219 (Iowa 2016). We are not bound by the factual findings of
the juvenile court, though we give them respectful consideration,
particularly regarding credibility determinations. Id.The State must prove termination was proper by clear and
convincing evidence. Id. “Evidence is considered clear and convincing
‘when there are no “serious or substantial doubts as to the correctness [of]
conclusions of law drawn from the evidence.” ’ ” Id. (alteration in original)
(quoting In re D.W., 791 N.W.2d 703, 706 (Iowa 2010)).
IV. Analysis.
Mom appeals both the adverse finding on reasonable efforts and the
termination of her parental rights to all three children. Dad appeals the
termination of his parental rights to A.C.1. Mom and Dad’s parental rights
to A.C.1 were terminated under Iowa Code section 232.116(1)(h), requiring
the State to prove:
(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.
21
(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.
Mom’s rights to A.C.2 were terminated pursuant to the same section.
Mom’s parental rights to A.B. were terminated pursuant to section
232.116(1)(f), which varies from subsection (h) only in that it applies to
children age four or older and requires twelve months out of the parent’s
custody instead of six months. The only factor either parent contests is
subsection (4)—that there is clear and convincing evidence the child could
not be returned to the parent’s custody at the present time.
“Our review of termination of parental rights under Iowa Code
chapter 232 is a three-step analysis.” In re M.W., 876 N.W.2d at 219.
First, we must determine “whether any ground for termination under
section 232.116(1) has been established.” Id. If so, we next “determine
whether the best-interest framework as laid out in section 232.116(2)
supports the termination of parental rights.” Id. at 219–20. If we conclude
section 232.116(2) supports termination, “we consider whether any
exceptions in section 232.116(3) apply to preclude termination of parental
rights.” Id. at 220.
A. Termination of Mom’s Parental Rights. The juvenile court
terminated Mom’s parental rights on the basis that the children could not
be returned to her custody at the time of the adjudication. Iowa Code
§ 232.116(1)(f), (h). The State had the burden to prove the statutory
prerequisites by clear and convincing evidence. Significantly, the GAL and
Mom both urge us to carefully scrutinize the record independently of the
juvenile court, arguing there exists a lack of record support for the court’s
findings.
Determining whether the State met its burden requires a look at the
reasons DHS advanced for termination. DHS identified two things
22
preventing return of the children to Mom: sobriety and domestic violence.
Before we address those grounds, however, we address the parties’
concern that the juvenile court did not fairly consider the record evidence.
1. Concerns about some of the juvenile court’s findings. Our review
of the record raises concerns about some of the juvenile court’s findings.
Some of those concerns might have been avoided if the juvenile court had
drafted its ninety-nine-page ruling more tightly and succinctly.
We first note the court made at least two clearly inaccurate fact
findings, which seem to have colored its view. First, in some early orders
in this case, the juvenile court states that Mom was part of a previous case
with DHS that resulted in a termination of her parental rights to other
children. This is incorrect. Second, the juvenile court incorrectly declared
Mom to be the subject of a second founded child abuse report on January
28, 2019. As Mom and the GAL explain, the report did not involve Mom.
The only founded report against her was the initial September 18, 2018
report that brought the family to DHS’s attention.
The court also relied heavily on Mom’s criminal history, most of
which centered on her relationship with Akoya and occurred prior to the
September 2018 incident that brought Mom to DHS’s attention. The
emphasis on that criminal history fails to recognize that Mom successfully
removed Akoya from her life.
Additionally, despite the length of the juvenile court’s order, it
appears the juvenile court routinely failed to acknowledge positive reports
about Mom contained in the record. For example, the juvenile court did
not discuss the positive evaluations provided by her substance abuse
counselor, focusing only on missed appointments and positive test results.
The juvenile court also did not acknowledge the positive comments
from Mom’s mental health therapist. The district court’s characterization
23
of the therapist’s June 24, 2020 letter discussing Mom’s progress reflects
the district court’s dismissiveness. In the letter, the therapist noted Mom
was always respectful, eager to learn, and discussed her emotions openly.
After explaining the focus of their sessions, including domestic violence
education, healthy relationships, boundaries, and accountability, the
therapist noted Mom reported greater understanding of her triggers,
impulsivity, and emotional reactions and how to cope with those responses
to make healthy decisions. The therapist then noted, “[Mom] reports that
she has ended relationships with significant others with whom her
relationship was unhealthy. She reports that she is now single.” Yet the
juvenile court characterized the therapist’s letter, in its entirety, as follows:
On June 24, 2020, the mother’s therapist provided an
update. She began working with the mother 18 months ago.
The mother participated in 36 session[s]. In March, 2020, the
therapist offered to meet with the mother through telehealth.
The mother declined. At the end of May, the mother finally
agreed to resume therapy through telehealth.
The mother told the therapist “she is now single.” This
statement did not have any other context in the report.
The “other context” in the report was a clear reference to Mom’s efforts at
creating healthy relationships, a primary concern for DHS’s involvement.
Although the juvenile court highlighted the difficulties Mom had
with video visits with the children, it did not credit Mom for meeting with
A.B. in person or acknowledge the worker’s belief that she cut the visits
short in the best interests of the children. The juvenile court also
concluded Mom lacked insight into what caused this case, contrary to both
of her therapists’ letters and the CASA report.
In its discussion of Mom’s parenting, the juvenile court declared,
“DHS noted [Family Safety, Risk, and Permanency (FSRP)]’s parenting
concerns for the mother. These included her ‘ability to time manage,
24
needing prompt[ing] to change diapers, and needing some assistance from
FSRP to help with the children.’ ” We find this conclusion significantly at
odds with the record evidence. These concerns were only noted in a
handful of reports, to which Mom objected as containing inaccuracies. It
is also contrary to testimony offered at the July 2020 hearing by the FSRP
worker involved in the case since November 2019 that “parenting . . . has
never been an issue with this particular mom.”
Further, the juvenile court never discussed positive reports about
Mom’s parenting, despite the vast majority of reports about her parenting
being positive. One example is the Safe Care parenting program. The
juvenile court’s order noted only that Mom completed the program without
mentioning the evaluation, which noted she “was prepared for sessions
and showed a thorough understanding of the material,” was “very engaged
. . . and open to learning new skills,” and overall “excelled” in the program.
With respect to the specific negative reports relied on by the juvenile
court, Mom contended those reports were unreliable, identifying
discrepancies between her records of visits and those submitted by the
department. The juvenile court rejected her claim, declaring it did “not
believe the mother’s claim ‘visits were often cancelled or rescheduled.’ ”
Our careful review of the record, however, reveals there is some truth to
Mom’s contention.
DHS workers confirmed there were problems with cancellations and
rescheduling. For instance, in its termination report, DHS noted, “There
are some discrepancies between what FSRP reports and [Mom] reports.
The team discussed visits . . . and adding more time and making up missed
visits. FSRP continues to work on making up time.” (emphasis added).
These are references to visits cancelled by FSRP workers. Similar
comments appear in many documents in the record.
25
Moreover, a careful look at the record reveals a time period from
approximately August 2019 until a new caseworker took over in November
2019 when the reports contained inaccuracies.5
It is also notable that these particular reports, already suspect, are
the only evidence in the record that criticize Mom’s parenting. No evidence
from either before or after that period notes a need to prompt Mom to
change a diaper. No other evidence suggests she spoke harshly to her
children. There are enough errors in this group of reports to cast doubt
on their content. Yet, the juvenile court relied on those specific reports,
emphasizing them above other complimentary reports.
These discrepancies indicate the juvenile court relied on an
inaccurate view of the record. We turn to the reasons advanced by DHS
for termination to determine whether the evidence supports the juvenile
court’s ruling.
2. Sobriety. The juvenile court and the CASA concluded substance
abuse supported termination of Mom’s parental rights. However, a finding
that Mom has an issue with sobriety affecting her ability to parent is not
supported upon examination of the record.
The records reveal the following substance use: Mom’s first positive
test for marijuana on August 19, 2019, positive tests for THC between
October 9 through November 19, a single positive result for cocaine in
February 2020, and a single positive result for alcohol in May. It must be
5A clear example is the report of a team meeting in the chronology of family
contacts on September 20, complete with details of the meeting, when all other record
evidence indicates the meeting happened on October 15. In another instance, the
description of the interaction is clearly a copy-and-paste: October 3 and October 4 contain
the exact same narrative, including that Mom had texted requesting to meet at
McDonald’s because her electricity was out and that Mom forgot diapers, so her friend
had to bring them. We do not intend to disparage the worker; her father passed away
during this time period, and a few months later, she left the social work profession. We
make these observations in an effort to reconcile discrepancies in the record.
26
noted however, that Mom provided numerous negative tests prior to,
between, and after, these finite positive results. The results cannot be
considered in a vacuum.
After Mom’s positive drug screen for marijuana in August 2019, the
workers on her case switched her from semisupervised to fully-supervised
visitation in August. Mom denied she had a substance abuse problem but
engaged in substance abuse counseling, including providing regular drug
screens through her counselor. Substance abuse was never identified as
a primary concern as to Mom’s ability to safely parent her children.
At trial, Mom explained her August positive test result as exposure
to secondhand smoke, which her substance abuse counselor admitted to
DHS workers was possible. She explained her October and November
positive screens as the result of using vape pens to smoke nicotine that
had previously been used with THC and testified she stopped using vape
pens altogether after her substance abuse counselor informed her that
using the same vape pens would still contain THC. Significantly, she did
not test positive for any substances at any of multiple drug tests prior to
August 2019 and never tested positive for THC again after the one-month
period between October and November.
The juvenile court acknowledged neither Mom’s vape pen
explanation, including her counselor’s apparent acceptance of the
explanation, nor the tacit admission contained within it. It also did not,
despite drawing conclusions based upon the individual results of Mom’s
urine screens, acknowledge the complexities involved in evaluating the
meaning of the results of positive marijuana urine screens. A full review
of the literature is beyond the scope of this case, but we acknowledge for
our purposes that each positive result does not necessarily indicate new
use. See Marilyn A. Huestis, Cannabis, in Principles of Forensic Toxicology
27
336–38 (Barry Levine ed., 4th ed. 2013) [hereinafter Huestis] (discussing
the difficulty in determining when use occurred based on a urine screen
indicating a positive THC result). We caution that interpreting the
meaning of a positive THC result involves many complexities, and that
what individual results indicate about use, including when or whether new
use has occurred, may not be clear without exploring those complexities,
if even then.6 Courts should consider these complexities before drawing
any inferences surrounding individual results. On close examination of
the record, it does not appear Mom has an ongoing problem with
marijuana abuse. Cf. In re M.S., 889 N.W.2d 675, 682 (Iowa Ct. App. 2016)
(en banc) (“It is a mistake to . . . draw an inference of recent and significant
use unsupported by medical literature and unsupported by the laboratory
actually conducting the test and reporting the results.”).
With respect to the positive cocaine test in February 2020, we note
that throughout this case, Mom provided one positive cocaine result. She
tested consistently enough that additional use would likely have been
detected. Moreover, she has cooperated with her substance abuse
counselor and has seemingly admitted cocaine use to her. This appears,
from the counselor’s letter, to be a coping mechanism to deal with trauma.
It is notable the positive result occurred just days before the February
2020 hearing. It is also quite telling that DHS allowed Mom to pump
breastmilk for A.W. despite the prior positive cocaine test. The juvenile
court acknowledged DHS discussed this with Mom and she assured them
the milk would be clean. DHS clearly was not concerned about an ongoing
issue with cocaine use.
6In fact, in some circumstances, THC levels can increase despite a person not
using anew, varying with the hydration level of the individual. Huestis at 337.
28
To the extent Mom missed appointments with her substance abuse
counselor, those absences correlated with the birth of A.W. and the switch
to videoconferencing in April and May due to COVID-19. Mom’s counselor
reported that she had reengaged in regular sessions and was making
progress toward her goals. In a June 2020 report, the counselor also noted
that Mom was engaging in increasingly healthy coping mechanisms and
had begun addressing the connection between trauma and substance
abuse. The counselor noted, “Based on sessions with [Mom], she is in the
action stage of change for substance use.” The counselor concluded Mom
had “been an engaged and willing participant in working on these goals
during sessions.”
We do not make light of the substance abuse that appears in this
record. It is troubling that Mom would use cocaine and try to hide it. It
is especially troubling that she would use cocaine while she was pregnant.
However, it appears Mom has addressed and continues to address this
issue. While the record indicates Mom should continue engaging with her
substance abuse counselor, her substance abuse does not support
terminating her parental rights.
Finally, and crucially, there is no allegation in this record that Mom’s
substance use interfered with her ability to parent safely. See In re M.S.,
889 N.W.2d at 682 (noting termination of parental rights on the basis of
substance abuse requires a nexus between the substance use and
adjudicatory harm to the child); cf. In re J.S., 846 N.W.2d 36, 42–43 (Iowa
2014) (holding mother’s use of methamphetamine, in and of itself, did not
mean children were in imminent likelihood of abuse or neglect). No
concerns appear in the record suggesting she was ever high or intoxicated
in the children’s presence, while she was caring for them, or at any point
when she was in contact with workers on the case. We emphasize the
29
importance of Mom continuing to be honest regarding her use and working
with her counselor to address what triggers her use. However, on our de
novo review, we conclude substance abuse does not support termination
of Mom’s parental rights.
3. Domestic violence. From the start of this case, Mom has
consistently and substantively engaged in mental health counseling
services to address her relationship and domestic violence concerns. In
an accountability letter Mom completed with her therapist in July 2019,
she acknowledged her relationship with Akoya was not healthy and vowed
to only interact with him through third parties and only as necessary when
related to their child. She has maintained that vow.
Mom was arrested for a domestic altercation with Dad in December
2019. It is clear the State supported termination based primarily on its
belief that Mom and Dad were engaged in a clandestine relationship. The
CASA’s support for termination also centered on Mom’s relationship with
Dad.
The CASA and the juvenile court characterize the December 2019
incident between Mom and Dad as a return to the type of toxic relationship
Mom had with Akoya. However, we do not view the December fight, or
Mom’s relationship with Dad, to be similar to the one she had with Akoya.
We agree with the GAL that viewing the relationships this way erases the
progress Mom has made.
At the start of this case, Mom was volatile. She sought out conflict
with Akoya’s girlfriends, resulting in entry of a no-contact order and
multiple jail stays. It appears Akoya was abusive and likely played more
of a role in those conflicts than is immediately obvious from the record.
However, Mom ultimately took responsibility for her choices. Following
her April 2019 violation of the no-contact order, no further incidents
30
involving Akoya or his girlfriends occurred. We credit Mom’s ability to
enforce her separation from Akoya.
Further, Mom engaged in therapy directly addressing domestic
violence and bad patterns in relationships. According to her therapist, she
engaged actively and made good progress on understanding what caused
the issues that led to DHS’s involvement in this case. The CASA report
also indicated she understood that DHS’s remaining concern in February
2020 involved her romantic relationships and that she had ended her
relationship with Dad to address that concern.
The incident that led to Mom’s December arrest resulted from her
decision to break up with Dad specifically because it would be better for
the children. She asked Dad to leave, and his response caused the fight
that led to both their arrests. Even the juvenile court’s recitation of this
incident puts the blame primarily on Dad, noting he became upset when
Mom dropped the Xbox, breaking it, and he subsequently pushed her to
the ground and put her into a headlock. We note the criminal charges
against Mom were dismissed, while Dad pleaded guilty to a lesser charge.
This is not the same type of conduct that led to Mom’s troubling
behavior at the start of the case. There is a difference between seeking out
conflict, even if provoked, which comprised much of Mom’s relationship
with Akoya and his girlfriends, and defending oneself. We acknowledge
this is a problematic incident. However, it does not mean Mom has made
no progress or, more importantly, that the children cannot be returned to
her. The CASA report and Mom’s success at removing Akoya from her life
demonstrate she has the insight necessary to address this problem.
While Mom has had some contact with Dad, the State has failed to
present clear and convincing evidence that she is in the harmful and
clandestine relationship suggested by DHS. DHS presented only three
31
snippets of evidence: a Facebook picture from New Years’ Eve 2019, Dad’s
presence in the parking lot of Mom’s apartment two days after she gave
birth to his daughter, and an uncorroborated comment by A.B. during a
videoconference visit—when he was not physically present with Mom—
that Dad had cooked spaghetti for supper. This evidence presents only
implications that do not amount to clear and convincing evidence that
Mom continued in an inappropriate relationship with Dad. Thus, the
conclusion that Mom cannot have her children in her custody because of
a continued relationship with Dad does not withstand scrutiny.
Importantly, Mom’s parenting has never seriously been questioned,
apart from the initial founded report of abuse. She accepted responsibility
for putting A.C.1 in danger when she left her in the car, and she has
worked on addressing the issues that led to that decision. Mom has taken
advantage of available opportunities to better her parenting skills,
including resources she proactively sought out. Throughout this case,
Mom has been consistent in her commitment to her children. There is no
serious contention that the children would be unsafe in her custody, so
long as she avoids negative relationships.
A final note on Mom’s argument that DHS failed to provide
reasonable efforts toward reunification. The challenge for lack of efforts
started in July 2019, and Mom moved for a hearing to require such efforts
in November 2019 on the basis of a lack of visits and failure to move
forward with less restricted visits given her progress. The motion was not
heard until February 2020 for A.B., June for A.C.1 and A.C.2, and no
decision was reached until September, nearly a year after the first motion.
Our disposition leaves the CINA action in place, and we trust DHS will
make reasonable efforts moving forward, as appropriate.
32
We conclude the juvenile court erred in finding the children could
not be returned to Mom’s custody—the required fourth element for a
termination under section 232.116(1)(f) and subsection (h). We therefore
reverse the termination of Mom’s parental rights as to A.B., A.C.1, and
A.C.2.
B. Termination of Dad’s Parental Rights. We next consider
whether the juvenile court erred by terminating Dad’s parental rights to
A.C.1. In this analysis, we consider the three-part test from Iowa Code
section 232.116, including whether any grounds for termination were
proven, the best interests of the child, and whether any exceptions to save
the parent–child relationship apply. In re M.W., 876 N.W.2d at 219–20.
1. Grounds for termination under section 232.116(1). Dad’s parental
rights to A.C.1 were terminated on the same grounds as Mom’s: that A.C.1
could not be placed in his custody at the time of the hearing. Dad
participated in this case sporadically. When the new caseworker started,
she noted she would have concerns if Dad was expected to be a primary
caretaker to the children due to his ambivalence. He did not take
advantage of those services available to him and did not take full
advantage of visitation with A.C.1.
Dad’s drug test results and substance abuse evaluation indicate he
likely has a substance abuse problem, and he did not meaningfully
address that problem during the pendency of this case. Dad initially
blamed a lack of insurance for his failure to participate in substance abuse
services. When he eventually did undergo an evaluation, he did not
provide its results to the department or the court until the termination
hearing. This report apparently concluded he was at high risk of
substance abuse, but Dad still denied having a substance abuse problem.
Finally, Dad reported he started therapy toward the end of this case, but
33
he failed to provide any evidence to support the identity of a therapist or
the types of services provided.
Although Dad cooperated in this case on a basic level, he failed to
fully engage with DHS recommendations and address the problems DHS
identified. His lack of efforts stands in stark contrast to Mom, who
attempted to comply with all court-ordered services. Moreover, it does not
appear he would be able to provide stable housing for A.C.1. On our de
novo review of the record, we conclude A.C.1 could not be returned to
Dad’s custody at the time of adjudication and the State has proved the
grounds for termination.
2. The best interests of the child under section 232.116(2). Once we
conclude DHS has proven a ground for termination of parental rights, we
next ask “whether the termination of parental rights would be in the best
interest of the child under section 232.116(2).” In re M.W., 876 N.W.2d at
224.
When we consider whether parental rights should be
terminated, we “shall 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.” . . . For
integration, we look at how long the children have been living
with the foster family, how continuity would affect the
children, and the preference of the children if they are capable
of expressing a preference.
Id. (quoting Iowa Code § 232.116(2)). Additionally, in evaluating the child’s
best interest we note
[i]t 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. (alteration in original) (quoting In re A.M., 843 N.W.2d 100, 112 (Iowa
2014)).
34
Dad made minimal efforts during the year and a half he was involved
in the CINA case, and he fails to identify how additional time will change
the fact that A.C.1 cannot be placed in his custody. He lacked stable
housing throughout, and he continues to deny a substance abuse problem
despite the recent assessment identifying him at high risk for substance
abuse. The juvenile court properly found that the A.C.1’s best interests
support terminating Dad’s parental rights.
3. Exceptions in section 232.116(3). Finally, we must “determine
whether any exceptions in section 232.116(3) apply to preclude the
termination.” Id. at 225. Of the statutory exceptions, subsection (c) is the
only potentially relevant subsection. It allows a court to deny termination
if “[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.” Iowa Code § 232.116(3)(c).
Although Dad has participated in this case and formed some bond
with A.C.1, it is not clear terminating his parental rights to her would be
more detrimental to her than giving her permanency. The record reveals
the new caseworker expressed concern over Dad’s ambivalence toward the
children, including A.C.1. Moreover, A.C.1 is quite young, indicating she
has had less time to form a bond that may be affected by termination. We
conclude there is not clear and convincing evidence termination would be
detrimental to A.C.1 due to the closeness of her relationship with Dad.
V. Conclusion.
We reverse the juvenile court’s termination of Mom’s parental rights
to A.B., A.C.1, and A.C.2. We grant Dad’s application for delayed appeal
and affirm the juvenile court’s termination of Dad’s parental rights as to
A.C.1. We remand for further proceedings consistent with this opinion.
35
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Christensen, C.J., and Appel, Waterman, and Mansfield, JJ., join
this opinion. McDermott, J., files an opinion concurring in part and
dissenting in part in which McDonald, J., joins.
36
#20–1266, In re A.B., A.C., and A.C.
McDERMOTT, Justice (concurring in part and dissenting in part).
The majority today loosens lug nuts on the wheels of justice. By
permitting ad hoc exceptions to our unambiguous appeal deadlines, the
court veers from rules that have long provided clarity and predictability for
courts and court participants alike. The father admits he failed to file his
petition on appeal within the deadline. His appeal should be dismissed.
Iowa Rule of Appellate Procedure 6.101(1) specifies the deadline to
file a notice of appeal in termination-of-parental-rights cases. It states:
A notice of appeal from a final order or judgment entered in
Iowa Code chapter 232 termination-of-parental-rights or
child-in-need-of-assistance proceedings must be filed within
15 days after the filing of the order or judgment.
Iowa R. App. P. 6.101(1)(a).
After appellants file a notice of appeal, they next must file a “petition
on appeal,” which is “a streamlined, fill-in-the-blanks form, designed to be
completed in an expeditious manner.” In re L.M., 654 N.W.2d 502, 506
(Iowa 2002). The petition on appeal form includes, among other things, a
statement of material facts and legal issues presented for appeal. See Iowa
R. App. P. 6.201(1)(d), 6.1401 — Form 5. Rule 6.201(1) specifies the
deadline to file a petition on appeal in termination-of-parental-rights
cases:
A petition on appeal must be filed with the clerk of the
supreme court within 15 days after the filing of the notice of
appeal with the clerk of the district court or within 15 days
after the filing of an order granting an interlocutory appeal.
The time for filing a petition on appeal shall not be extended.
Iowa R. App. P. 6.201(1)(b). If the phrase “must be filed” within fifteen
days wasn’t clear enough, the rule adds a sentence that erases any doubt
about a party’s ability to file an untimely petition on appeal: “The time for
37
filing a petition on appeal shall not be extended.” Id. This language
delivers not some aspirational suggestion but an unequivocal command.
This is the deadline the father missed; on this point there is no dispute.
Rule 6.201(3) is singularly devoted to what happens if the petition
on appeal is not filed on time:
Consequence of failure to file a timely petition on appeal. If the
petition on appeal is not filed with the clerk of the supreme
court within 15 days after the filing of a notice of appeal or
within 15 days after the filing of an order granting an
interlocutory appeal, the supreme court shall dismiss the
appeal, and the clerk shall immediately issue procedendo.
One would be hard pressed to find any ambiguity or verbal
vagueness in these rules or deadlines—or the consequences in failing to
comply with them. The majority, for its part, doesn’t attempt to justify its
holding permitting the father’s late-filed petition on appeal in this case
based on some lack of clarity or interpretative disagreement in how to
construe these rules.
Instead, the majority relies on a concern that enforcing our clear
rules might violate a party’s due process rights. Termination-of-parental-
rights cases unquestionably implicate due process rights based on the
parent’s protected liberty or property interest in the care, custody, and
control of a child. Troxel v. Granville, 530 U.S. 57, 65–66, 120 S. Ct. 2054,
2060 (2000); In re C.M., 652 N.W.2d 204, 212–13 (Iowa 2002). But in
response to due process challenges to these rules, we’ve long held that
these deadlines do not violate parents’ due process rights. In re C.M., 652
N.W.2d at 212–13. “The State has a compelling interest in finalizing
permanent placements for children as soon as possible,” and we’ve held
that the fifteen-day deadline for filing a notice of appeal “is narrowly
tailored to accomplish that objective.” In re L.M., 654 N.W.2d at 505–06
38
(finding no constitutional infirmity in the deadlines in response to an equal
protection challenge).
Appeal deadlines are “mandatory and jurisdictional.” Root v. Toney,
841 N.W.2d 83, 87 (Iowa 2013); see also Lundberg v. Lundberg, 169
N.W.2d 815, 817 (Iowa 1969), overruled in part on other grounds by Sykes
v. Iowa Power & Light Co., 263 N.W.2d 551, 553 (Iowa 1978). That means
that we, as an appellate court, do not have jurisdiction to hear the case
when parties miss their filing deadlines. “Where an appellant is late in
filing, by as little as one day, we are without jurisdiction to consider the
appeal.” In re Marriage of Mantz, 266 N.W.2d 758, 759 (Iowa 1978). Due
process itself makes jurisdictional requirements mandatory. “Due process
protects the defendant’s right not to be coerced except by lawful judicial
power.” J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 877, 131 S. Ct.
2780, 2785 (2011). Procedural rules “serve a definite purpose and are
more than technical; they have substance, in that they lay down definite
rules which are essential in court proceedings so that those involved may
know what may and may not be done and confusion, even chaos, may be
avoided.” MC Holdings, L.L.C. v. Davis Cnty. Bd. of Rev., 830 N.W.2d 325,
332 (Iowa 2013) (Waterman, J., dissenting) (quoting BHC Co. v. Bd. of Rev.,
351 N.W.2d 523, 526 (Iowa 1984)).
The majority notes that defendants in criminal cases have a
constitutional right to effective assistance of counsel and that parents in
termination-of-parental-rights cases also have a right to effective
assistance of legal counsel. Drawing on this similarity, the majority invites
us to consider that accused defendants have a remedy to pursue
ineffective-assistance-of-counsel claims for late-filed appeals in criminal
cases (through state postconviction relief actions or federal actions under
28 U.S.C. § 2255), while parents have no similar avenues to remedy
39
ineffective assistance for late-filed appeals in termination cases. The
majority suggests permitting delayed appeals in some termination-of-
parental-rights cases might address this disparity.
But the solution to a claim of ineffective assistance in a termination
case can’t be to pretend our jurisdictional rules aren’t mandatory and
suspend their enforcement extemporaneously. Again, a blown
jurisdictional deadline in a termination-of-parental-rights case prevents
our court from proceeding with the appeal. The rule tolerates no exceptions
for cases in which a party alleges ineffective assistance of counsel. See
Iowa R. App. P. 6.201(3) (“If the petition on appeal is not filed with the clerk
of the supreme court within 15 days . . . the supreme court shall dismiss
the appeal, and the clerk shall immediately issue procedendo.”). The clear
instruction that the court “shall dismiss” should not be reinterpreted to
mean “shall not dismiss if the delay is negligible and the client can blame
the lawyer.”
And even if relaxed enforcement of these jurisdictional deadlines
offered a defensible prescription, it’s weak medicine with nasty side effects.
The majority touts looking past blown deadlines as a fix for ineffective
assistance, but only if the period of delay is “no more than negligible.” So
more egregious ineffective assistance (where the lateness isn’t what a
future court deems “no more than negligible”) still has no remedy, but less
egregious ineffective assistance (where the deadlines are missed by a lesser
duration) will earn a pass? The more ineffective the counsel, the less
protection the majority’s remedy offers. And in this case, the majority
doesn’t even require ineffective assistance, only that “the failure to timely
perfect the appeal was outside of the parent’s control.” Whatever the
appropriate antidote might be to address the problem of ineffective
40
assistance in termination-of-parental-rights cases, this is not it. The side
effects of the majority’s tonic will far outstrip its curative potency.
Dismissing an appeal because of a missed deadline can seem like a
harsh consequence. But like statutes of limitations, appeal deadlines
“necessarily operate harshly and arbitrarily with respect to individuals
who fall just on the other side of them.” United States v. Locke, 471 U.S.
84, 101, 105 S. Ct. 1785, 1796 (1985). No one disputes that procedural
rules “are a necessary part of an orderly system of justice.” Houston v.
Lack, 487 U.S. 266, 283, 108 S. Ct. 2379, 2389 (1988) (Scalia, J.,
dissenting) (quoting Thompson v. Immigr. & Naturalization Serv., 375 U.S.
384, 390, 84 S. Ct. 397, 400 (1964) (Clark, J., dissenting), overruled by
Bowles v. Russell, 551 U.S. 205, 214, 127 S. Ct. 2360, 2366 (2007)). Yet
their efficacy “depends upon the willingness of the courts to enforce them
according to their terms.” Id. Like a reservation that’s taken but not held,
a deadline that’s promulgated but not enforced neglects the most
important part: the enforcing.
In 2001, the legislature authorized the court to provide shorter
appeal deadlines “to expedite the resolution of appeals” in termination-of-
parental-rights cases. 2001 Iowa Acts ch. 117, § 1, (codified at Iowa Code
§ 232.133(2) (2003)). Almost immediately, we established the expedited
fifteen-day deadlines in our appellate rules. In the nearly two decades
since, we have demanded that parties comply with these deadlines. See,
e.g., In re J.H., 952 N.W.2d 157, 165 (Iowa 2020) (dismissing terminated
mother’s appeal “because it was untimely”). If we now believe that fifteen
days is insufficient time for parties to comply, we should make changes
through our customary and longstanding rule amendment process, not by
announcing ad hoc exceptions in our judicial opinions. “Such
dispensations in the long run actually produce mischievous results,
41
undermining the certainty of the rules and causing confusion among the
lower courts and the bar.” Houston, 487 U.S. at 283, 108 S. Ct. at 2389(1988). As Judge Easterbrook put the point: “If the rules are good, enforce
them; if the rules are bad[,] change them; there’s little point in having good
rules but winking at noncompliance.” Diamonds.net LLC v. Idex Online,
Ltd., 254 F.R.D. 475, 477 n.2 (S.D.N.Y. 2008) (quoting Howard J.
Bashman, 20 Questions for Circuit Judge Frank H. Easterbrook, Above the
Law: How Appealing (Aug. 2, 2004), https://howappealing.abovethe
law.com/20q/2004_08_01_20q-appellateblog_archive/ [https://
perma.cc/U4YG-DKSB].
The court can’t simply recite that we permitted delayed appeals in
criminal cases and start cutting down the nets. The legislature’s rationale
in authorizing expedited appeals in termination-of-parental-rights cases—
a rationale embraced in our appellate rules’ fifteen-day deadlines—also
provides a basis for distinguishing the criminal cases that the majority
relies on in loosening enforcement of the deadlines. From a procedural
standpoint, in criminal cases the interests of the criminal defendant are
principally before the court. By contrast, in termination-of-parental-rights
cases, the interests of the child are principally at issue. Iowa Code
§ 232.116(2) (2020) (stating that in considering whether to terminate
parental rights “the court shall 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” (emphasis added)); see also In re M.W., 876 N.W.2d
212, 224 (Iowa 2016). The expedited deadlines promote the child’s best
interests by achieving permanency in a more timely fashion and “reducing
the time all must wait in litigation limbo until their case is finally resolved.”
In re R.K., 649 N.W.2d 18, 21 (Iowa Ct. App. 2002) (en banc) (per curiam).
42
Termination proceedings impact children, parents, foster families,
guardians, and other caretakers involved in pursuing secure final
placements for the children. In delayed termination-of-parental-rights
cases, the number of people prejudiced, and the nature and severity of
that prejudice, will almost always exceed that of the criminal cases the
majority relies on. The importance of expeditious finality exists for all
court matters, but perhaps in no case—as the legislature implicitly
recognized in section 232.116(2) in authorizing expedited appeals—more
so than termination-of-parental-rights matters.
The majority acknowledges “the countervailing interests involved” in
deciding whether to relax the deadlines and specifically the “interest in
finality” to move forward with a permanency plan. The majority then
cautions (as mentioned above) that “an untimely appeal should be allowed
to proceed only if the resulting delay is no more than negligible.” This nods
to the importance of the deadlines while simultaneously eviscerating them.
Weighing the “countervailing” interests of the child in finality often will be
intertwined with a merits inquiry. On this point too, today’s ruling
introduces complexity where before there was none.
Considering the long-established jurisdictional grounds requiring us
to dismiss late-filed appeals, we need not go into detail about the many
practical problems that today’s holding will spawn in future cases. An
entire body of case law will need to develop around if and when “a valid
due process argument might be advanced” by the parent if the appeal is
dismissed, how long of a delay is “negligible” enough (Two days? Two
weeks? Two months?) to satisfy the majority’s tastes, and what reasons
for missed deadlines “outside of the parent’s control” will clear the bar. Of
course, enforcing unambiguous deadlines permits courts and parties to
43
avoid such ad hoc determinations in the first place. Today’s ruling
undermines our own objectives.
Appeal deadlines aren’t qualified or aspirational; they’re “absolute.”
United States v. Kwai Fun Wong, 575 U.S. 402, 423, 135 S. Ct. 1625, 1640,
(2015) (Alito, J., dissenting). The deadline in Rule 6.201(1)(b) that the
father missed in this case imposes a limit on the courts’ jurisdiction that
we should not take upon ourselves to extend. I concur in the majority’s
opinion reversing the juvenile court’s termination of the mother’s parental
rights to A.B., A.C.1, and A.C.2. But I respectfully dissent from the
majority’s grant of the father’s untimely appeal and would dismiss his
appeal for lack of jurisdiction.
McDonald, J., joins this concurrence in part and dissent in part.