In the Interest of C.B., Minor Child ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1851
Filed December 19, 2018
IN THE INTEREST OF C.B.,
Minor Child,
S.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Poweshiek County, Rose Anne
Mefford, District Associate Judge.
A mother appeals the district court order terminating her parental rights.
AFFIRMED.
Misty White, Sigourney, for appellant mother.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant
Attorney General, for appellee State.
Peter Stiefel, Victor, guardian ad litem for minor child.
Considered by Danilson, C.J., and Potterfield and Doyle, JJ.
2
POTTERFIELD, Judge.
The mother appeals1 the termination of her parental rights to C.B., born July
2017, and the district court order of the same date changing the permanency goal
to adoption or other permanent placement.2 The mother’s parental rights were
terminated pursuant to Iowa Code section 232.116(1)(b), (e), (g), and (h) (2018).
The mother does not challenge the grounds for termination. On appeal, the mother
argues the district court improperly denied her motion for recusal and the State
failed to make reasonable efforts at reunification.
I. Background Facts and Proceedings.
C.B. came to the attention of the Iowa Department of Human Services
(DHS) in September 2017. After C.B.’s birth in July, the mother and C.B. resided
with the child’s maternal grandmother in Oklahoma. The Oklahoma equivalent of
child services found the grandmother was not an appropriate caretaker for the
child, and the grandmother transferred the child to his maternal great-grandmother
residing in Iowa. The maternal great-grandmother and the great-grandmother’s
paramour, a person who was a perpetrator of sexual abuse on the mother when
the mother was a child, took care of the child until DHS became involved.
C.B. was adjudicated a child in need of assistance (CINA) in October and
was placed with his paternal grandmother, who also has custody of the mother’s
two older children. The mother’s husband was incarcerated in Jasper County,
Iowa and later consented to termination of his parental rights.
1
The legal father’s parental rights were also terminated. He does not appeal.
2
C.B. may be a member of or eligible for membership in a Native American tribe. Proper
notice was given to the parents, potential tribe(s), and the United States Secretary of the
Interior. The mother does not make any claims relating to the child’s tribal status.
3
The mother has had two visits with C.B.; the second visit ended after fifteen
minutes when the mother was arrested. After the mother was released from jail in
January 2018, DHS and family safety, risk, and permanency (FSRP) workers
attempted to set up additional visits. The mother refused to attend visits at the
FSRP office or visits occurring in Indianola. The mother often did not communicate
with providers in order to set up visits. At the termination hearing, the DHS worker
testified she estimated the mother had spent four hours with the child since he was
released from the hospital after his birth in 2017. The child has not resided with
the mother besides a brief period after birth.
DHS has offered the following services: case management; FSRP services;
sibling placement; family team meeting referral; paternity testing; supervised
visitations; the offer of psychological, substance-abuse, and mental-health
evaluations; and the offer of parenting classes. The mother has not complied with
the district court’s recommendations for reunification. The mother has not obtained
a substance-abuse, mental-health, or psychological evaluation. The mother has
not cooperated with paternity testing, drug testing, FSRP services, signing release-
of-information forms, or attending parenting classes or parenting-skill sessions. At
one point, the mother stated a desire to voluntarily terminate her parental rights
and refused any contact with or services through DHS.
In May, the mother made a motion for a change of venue or new trial judge,
arguing the judge presiding over the termination case had recently presided over
the mother’s criminal case and had prejudicial information as a result. The motion
was denied without hearing.
4
A termination hearing was held in May. The mother made a motion for
reasonable efforts in August. The motion was denied because the termination
hearing had already been held and the matter had already been submitted. In
October, the district court entered an order terminating the mother’s parental rights.
The mother appeals.
II. Standard of Review.
In considering the mother’s claims, we review the termination proceedings
de novo. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012).
III. Discussion.
The mother argues the district court improperly denied her motion for
recusal without a hearing. The mother argues there was information from her
recent criminal case—which was not part of the juvenile record and which painted
the mother in a negative light—that became known to the judge presiding over the
termination case. The mother argues the judge should have recused herself.
Alternatively, the mother argues she was entitled to a hearing on the motion for
recusal.
We review district court judges’ determinations not to recuse themselves for
an abuse of discretion. State v. Haskins, 573 N.W.2d 39, 44 (Iowa Ct. App. 1997).
The party seeking recusal has the burden to demonstrate grounds for recusal. Id.“This burden is substantial and we will not overturn the trial judge’s decision absent
an abuse of discretion. In order to show an abuse of discretion, a party must
demonstrate the court exercised its discretion on grounds or for reasons clearly
untenable or to an extent clearly unreasonable.” In re S.D., 671 N.W.2d 522, 528
(Iowa Ct. App. 2003).
5
Here, the mother contends the judge knew facts relating to her criminal acts
that were outside of the juvenile record, but she cited no authority in the juvenile
court or on appeal for the proposition that a judge must grant a request to recuse
solely because the judge has had experience with a party in another proceeding.
Nor does she cite authority for her argument she was entitled to a hearing on her
motion. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of
an issue may be deemed waiver of that issue.”). She points to no part of the record
in support of a claim the judge revealed bias, and the termination order does not
rely on the mother’s criminal activities. Actual prejudice must be shown before
recusal is necessary, not merely the appearance of impropriety. In re C.W., 522
N.W.2d 113, 117 (Iowa Ct. App. 1994); see also In re J.H. No. 17-1101, 2017 WL
4570544, at *3 (Iowa Ct. App. Oct. 11, 2017) (“It is frequently the case in
termination proceedings that the juvenile court judge might have—and should
have—detailed knowledge of a parent’s criminal history insofar as the criminal
history relates to the welfare of the child. The mere fact that the juvenile court
judge in this case also happened to be the presiding judge in criminal proceedings
involving this father, in and of itself, is not grounds for recusal.”). The district court
did not abuse its discretion in denying the mother’s motion for recusal.
Next, the mother argues the State failed to make reasonable efforts to
reunify her with C.B. The mother argues that in light of her intellectual disabilities,
she should have been provided services scheduling and transporting her to her
psychological evaluation. The mother argues her motion for reasonable efforts
should have been granted.
6
The mother has not preserved her reasonable-efforts argument for appeal.
“[DHS] has an obligation to make reasonable efforts toward reunification, but a
parent has an equal obligation to demand other, different, or additional services
prior to a permanency or termination hearing.” In re A.A.G., 708 N.W.2d 85, 91
(Iowa Ct. App. 2005). The mother did not make any requests for additional
services until after the termination hearing. She did not participate in many of the
services offered; DHS did schedule a psychological evaluation, but the mother did
not attend. We do not consider the mother’s reasonable-efforts argument on
appeal.
We affirm the district court order terminating the mother’s parental rights as
to C.B.
AFFIRMED.