In the Interest of T.N., Minor Child ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0467
Filed June 5, 2019
IN THE INTEREST OF T.N.,
Minor Child,
J.M., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marion County, Steven Guiter,
District Associate Judge.
A mother appeals the termination of her parental rights to her child.
AFFIRMED.
Jacob L. Mason of JL Mason Law PLLC, Des Moines, for appellant Mother.
Thomas J. Miller, Attorney General, and Anna T. Stoeffler, Assistant
Attorney General, for appellee State.
William E. Sales III of Sales Law Firm, P.C., Des Moines, attorney for minor
child.
Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, guardian ad litem
for minor child.
Considered by Vogel, C.J., and Mullins and Bower, JJ.
2
MULLINS, Judge.
A mother appeals the termination of her parental rights to her child.1 She
challenges the sufficiency of the evidence supporting the statutory grounds for
termination cited by the juvenile court, Iowa Code section 232.116(1)(b), (e), and
(f) (2018).2 Our review is de novo. In re L.T., 924 N.W.2d 521, 526 (Iowa 2019).
Our primary consideration is the best interests of the child, In re J.E., 723 N.W.2d
793, 798 (Iowa 2006), the defining elements of which are the child’s safety and
need for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).
As to termination under paragraphs (e) and (f), the mother only challenges
the sufficiency of the evidence relative to the requirement that the child was
removed from her physical custody. See Iowa Code § 232.116(1)(e)(2) (requiring
that the “child has been removed from the physical custody of the child’s parents
for a” certain period of time), (f)(3) (same). “[T]he term ‘remove’ and its
derivatives,” as used in paragraphs (e) and (f), “invariably involves a dynamic
change of circumstance, not stasis.” In re C.F.-H., 889 N.W.2d 201, 206 (Iowa
2016). Mere “absence of custody” is insufficient; there must be “a change from
physical custody to lack of physical custody.” See id. at 207. Although the term
1
The parental rights of the child’s father were also terminated. He does not appeal.
2
The mother does not argue termination is not in the child’s best interests or a statutory
exception should be applied to avert termination. See Iowa Code § 232.116(2), (3). Thus,
we need not address these steps in the three-step termination framework. See In re P.L.,
778 N.W.2d 33, 40 (Iowa 2010).
The mother does passively request a six-month extension to work toward
reunification. See Iowa Code §§ 232.104(2)(b), .117(5). Her failure to mount an argument
concerning her alleged entitlement to an extension waives the issue. See Iowa R. App.
P. 6.903(2)(g)(3); In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (“A broad, all
encompassing argument is insufficient to identify error in cases of de novo review.”); see
also Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996); Inghram v. Dairyland Mut. Ins.
Co., 215 N.W.2d 239, 240 (Iowa 1974).
3
“physical custody” is not defined in chapter 232, we have interpreted it to mean the
exercise of “physical possession, care, control, and responsibility over a child.” In
re L.A.M., No. 00-0666, 2001 WL 246371, at *5 (Iowa Ct. App. Mar. 14, 2001).
The record discloses the following pertinent facts. As a result of a prior
child-in-need-of-assistance proceeding, a guardianship over the child was
established in a maternal cousin. However, the guardian returned the child to the
care and custody of the mother. The State applied for removal of the child from
the mother’s care, noting she “has unaddressed substance abuse and mental
health needs that were not addressed” despite receiving services for roughly the
preceding two years. The court granted the application and ordered that the child
be removed from the mother’s physical custody. Because the guardian physically
returned the child to the mother’s care and the court subsequently removed the
child from her care, we find the evidence sufficient to show “a change from physical
custody to lack of physical custody.” See C.F.-H., 889 N.W.2d at 207; see also
L.A.M., 2001 WL 246371, at *4 (concluding the meanings of physical custody and
legal custody under chapter 232 are distinct).
We affirm the termination of the mother’s parental rights under Iowa Code
section 232.116(1)(e) and (f). See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010)
(“On appeal, we may affirm the juvenile court’s termination order on any ground
that we find supported by clear and convincing evidence.”).
AFFIRMED.