In the Interest of G.C. and R.C., Minor Children ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1781
Filed January 27, 2022
IN THE INTEREST OF G.C. and R.C.,
Minor Children,
R.C., Mother,
Appellant,
S.C., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, Rose Anne
Mefford, District Associate Judge.
A mother and father separately appeal from the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
Denise M. Gonyea of McKelvie Law Office, Grinnell, for appellant mother.
Lynnette M. Lindgren of Faulkner, Broerman & Lindgren, Oskaloosa, for
appellant father.
Thomas J. Miller, Attorney General and Toby J. Gordon, Assistant Attorney
General, for appellee State.
Nicole Steddom of Heslinga, Dixon & Hite, Oskaloosa, attorney and
guardian ad litem for minor children.
Considered by Greer, P.J., and Schumacher and Ahlers, JJ.
2
GREER, Judge.
Under Iowa Code section 232.116(1)(h) (2021), the juvenile court
terminated both the mother’s and father’s parental rights to two children, G.C. and
R.C. Both parents separately appeal. The father argues that the State did not
make reasonable efforts to reunify him and the children because of delays before
he was allowed visitation while incarcerated. The mother argues that termination
of her parental rights is not in the children’s best interests and asks for a six-month
extension. We find the father has not preserved error as to his challenge. As the
mother has not preserved error to request a six-month extension and termination
of the mother’s parental rights is in the best interests of the children, we affirm the
termination of each parent’s rights.
Facts and Proceedings.
S.C., father, and R.H.C., mother, are married and together had two children,
G.C. and R.C., who were one and two years old respectively at the time of
termination hearing. The mother also had an older child, K.H., who regularly
stayed with her and S.C. Beginning in September 2020, S.C. repeatedly sexually
abused his step-child when the mother left them alone together. The child told her
mother of the abuse, and S.C. admitted he touched K.H. inappropriately. Still, the
mother did not report the information and continued to leave all three children alone
with S.C., allowing for continued abuse of K.H. It was not until weeks after the
child’s initial report to the mother that K.H. told another family member and the
Iowa Department of Human Services (DHS) was made aware of the allegations.
DHS implemented a safety plan requiring that K.H. would not have contact with
either the mother or S.C. and that the mother would not allow her younger children
3
to have contact with their father either. But, the mother violated the safety plan
and allowed the father to come into the home with the younger children present.
The father eventually confessed his abuse to police officers and was arrested and
charged with second-degree sexual abuse.
G.C. and R.C. were removed from their parents’ care in January 2021 and
adjudicated children in need of assistance (CINA) that March. They were originally
placed with their maternal grandmother, but they were removed when allegations
of sexual abuse by their grandmother’s paramour against K.H. surfaced. In April,
both children were placed with a distant paternal cousin. Shortly after, they were
diagnosed with failure to thrive and were found to be significantly underweight—
G.C. required hospitalization.1 G.C., then seven months, required hospitalization
as she weighed ten pounds and was unable to hold her own head up, roll over, or
crawl. With like concerns, R.C., then two years old, weighed twenty pounds, was
unable to walk without falling over, had speech delays, and was unable to use
silverware or feed herself properly. They both require extensive physical therapy,
occupational therapy, and medical appointments. Medical protocol requires that
R.C.’s weight is checked every two weeks and G.C.’s is checked weekly. G.C.’s
malnourishment also led to potentially long-term issues with her hearing in one
ear. At the time of the termination hearing, the children were both in the hospital
because of their low weight and failure to thrive.2 The mother did not attend the
1 It is unclear from the record why the situation was allowed to get this drastic—
reports from previous placements reflect the children going to the doctors with
some concern about their weight but with no sense of urgency reflected.
2 A letter from the children’s doctor states he is unsure if this was related to
malnourishment from their time in the mother and father’s care, the current foster
4
appointments nor visit the children during either hospital stay as she does not have
a driver’s license or personal transportation. Amidst these challenges, the children
have strongly bonded with the paternal cousin caretaker, who is willing to adopt
them.
At the time of the termination hearing, the mother was having weekly,
supervised visitation for two-hours in a public place. Visits could not happen in the
mother’s own home as she and a boyfriend were living with the maternal
grandmother, whose paramour3 was over quite often. Providers reported that the
home also had a bug and flea infestation. When all three children were present at
visits, the mother would care for one and leave K.H. or a provider to care for the
other. Testimony at trial relayed the mother often remained in her chair rather than
getting up to interact with the children, and she seemed to ignore the children when
providers stepped away. When providers were present, they had to repeatedly
redirect or assist the mother. And, despite the necessity of a strict eating plan for
the children’s health, the mother did not seem to understand the importance of
following it. The paternal cousin provided all wipes, diapers, and bottles for visits.
Even more, the paternal cousin testified at the termination hearing that, after visits,
R.C. would come home quiet and distant. G.C. would cry and throw up, potentially
because she was not being fed according to the eating plan or because she was
not being burped frequently enough.
placement, an unknown underlying medical condition, or a combination of the
three.
3 This was the same person earlier accused of sexually abusing K.H.
5
When the father was originally arrested and the children were removed from
his care, the jail was not allowing any visits because of the COVID-19 pandemic.
Phone calls were also not a practical option because of the children’s young age.
He was approved for visits by the jail in late April 2021 and had his first interaction
with the children at the jail in May. These interactions still had to happen over a
phone with a glass barrier between him and the children, who could only remain
attentive for short periods of time. Because of this, visits typically lasted less than
thirty minutes. No inappropriate behavior was reported towards the children under
this limited contact. At the time of termination, the father was still in jail awaiting
trial.
In April, during the CINA proceedings, the father was ordered to undergo
both a psychosexual and mental-health evaluation. He completed the mental-
health evaluation but has been unable to follow the recommendations because of
his incarceration. He has not completed the psychosexual evaluation.
In the same court order, the mother was recommended to have a mental-
health evaluation and full psychological evaluation with a parenting assessment.
She completed the mental-health evaluation but has not consistently attended
therapy. After much cajoling and reminders by providers, the mother scheduled
her psychological evaluation in September but will not be seen until January 2022.
Testimony and provider reports show that the mother struggled to make and keep
appointments, including visitation and parenting services. The mother and father
are still married, but the mother contends she filed or plans to file for divorce.
6
After considering this history, the juvenile court terminated the parental
rights of both the mother and father in November 2021 under Iowa Code section
232.116(1)(h).4 Both timely appealed.
Discussion.
Typically, our review of a termination of parental rights is a three-step
process that begins with evaluating if a statutory ground for termination exists,
moves to considering the children’s best interests, and concludes with
consideration of the exceptions found in Iowa Code section 232.116(3). See In re
P.L., 778 N.W.2d 33, 39 (Iowa 2010). We review the termination de novo, but we
address only the steps raised by the parents on appeal. See id. at 39–40. To
start, we consider the father’s appeal.
A. The Father.
As the father remained in jail at the time of the termination hearing, he does
not challenge the grounds for termination, but instead contends the State did not
make reasonable efforts towards reunification because he was not given visitation
until later in the case. See In re L.M., 904 N.W.2d 835, 839 (Iowa 2017) (requiring
the State to show reasonable efforts were made to return the child to the parent’s
4 Section 232.116(1)(h) allows for termination when the juvenile court finds all of
the following:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least six months of the last twelve months,
or for the last six consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that the child
cannot be returned to the custody of the child’s parents as provided
in section 232.102 at the present time.
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care when terminating under section 232.116(1)(h)). But other than now claiming
that efforts were not made, the parent has a responsibility to object when
appropriate changes can be made. Id. at 839–40. “In general, if a parent fails to
request other services at the proper time, the parent waives the issue and may not
later challenge it at the termination proceeding.” In re C.H., 652 N.W.2d 144, 148
(Iowa 2002). The father asserts he asked for visitation at both the March CINA
adjudication hearing and April dispositional hearing, but there is no mention of this
request in the record provided5 or even at the termination hearing. While there are
general requests for visitation mentioned in family team meeting and provider
notes, “voicing complaints regarding the adequacy of services to a social worker
is not sufficient. A parent must inform the juvenile court of such challenge.” Id.As the record is devoid of a request by the father to the juvenile court for any
additional services or concerns about how services are being provided, error has
not been preserved. See In re T.S., 868 N.W.2d 425, 442 (Iowa Ct. App. 2015)
(“[W]e will not review a reasonable efforts claim unless it is raised prior to the
termination hearing.”).
Even if error had been preserved, “[w]hether visitation for an incarcerated
parent should be ordered as a reasonable effort toward reunification when timely
raised by the parent will depend on the circumstances of each case.” L.M., 904
5 The father did not order a transcript of either the March or April hearing. See
Iowa R. App. P. 6.803(1) (“Within seven days after filing the notice of appeal, the
appellant must use the combined certificate to order in writing from the court
reporter a transcript of such parts of the proceedings not already on file as the
appellant deems necessary for inclusion in the record.”); see also In re F.W.S., 698
N.W.2d 134, 135 (Iowa 2005) (“It is the appellant’s duty to provide a record on
appeal affirmatively disclosing the alleged error relied upon.”).
8
N.W.2d at 840 n.9. Visitation between the father and the children was left to the
discretion of DHS and the guardian ad litem.6 Testimony at trial confirmed that
visitation was not possible at first because of COVID-19 protocols and phone visits
were impractical because the children were so young and largely non-verbal. See
In re S.P, No. 21-0928, 2021 WL 4304241, at *2 (Iowa Ct. App. Sept. 22, 2021)
(explaining a delay in extended visitation because of COVID-19 protocols); In re
C.G., No. 20-1102, 2020 WL 7021684, at *2 (Iowa Ct. App. Nov. 30, 2020)
(allowing a change in visitation because of COVID-19). The circumstances of the
family and the larger world caused a delay in visitation, not any shortcoming on the
part of DHS. And, visitation occurred in a format the father’s self-inflicted
circumstances allowed. As such, the father’s argument that reasonable efforts
towards reunification were not made would also fail on the merits. We next tackle
the mother’s claims on appeal.
B. The Mother.
The mother challenges only the second step, stating termination is not in
the best interests of the children. We disagree.
Iowa Code section 232.116(2) states:
In considering whether to terminate the rights of a parent
under this section, 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. This consideration may
include any of the following:
....
b. For a child who has been placed in foster family care by a
court or has been voluntarily placed in foster family care by a parent
6 Ultimately, the father visited with the children on a weekly basis for the allotted
jail visitation time. Visitations were briefly put on hold while he was moved to
another facility for evaluation, but they began again when he returned.
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or by another person, whether the child has become integrated into
the foster family to the extent that the child’s familial identity is with
the foster family, and whether the foster family is able and willing to
permanently integrate the child into the foster family. In considering
integration into a foster family, the court shall review the following:
(1) The length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining that
environment and continuity for the child.
(2) The reasonable preference of the child, if the court
determines that the child has sufficient capacity to express a
reasonable preference.
The children’s continued health and growth requires considerable medical
care and consistent attendance at various appointments, an ability the mother has
not shown for herself or for her children. What is more, the mother does not grasp
the importance of following medical plans to keep her children at a healthy weight.
Even in a supervised setting, she has not demonstrated she is capable of
managing both children on her own and consistently relied on the older daughter
or a care provider to share in the caretaking tasks. The mother did not exhibit a
protective capacity, as she allowed both children to be with the father even after
he admitted to her that he sexually abused another child in the home and violated
the safety plan after the State became involved. And at the termination hearing,
she lived in a home frequented by her mother’s paramour, who allegedly sexually
abused her older child.
The children bonded with the paternal cousin in the six months they were in
her care leading up to the termination hearing. It is a pre-adoptive home, and the
cousin has displayed an ability to care for these children and provide for their
needs. On a positive note, the paternal cousin managed the extensive medical
and therapeutic appointments for the children and made substantial progress on
her foster-parent certification classes.
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The children deserve permanency that the mother is not ready to give them,
and they cannot be expected to wait. See In re D.W., 791 N.W.2d 703, 707 (Iowa
2010) (“We do not ‘gamble with the children’s future’ by asking them to
continuously wait for a stable biological parent, particularly at such tender ages.”
(citation omitted)). Simply put, the children’s safety, future placement, and overall
conditions and needs all indicate that termination of the mother’s parental rights is
in their best interests.
Finally, the mother also asserts that the children’s best interests would be
served by allowing her time to complete the psychological parenting assessment
she scheduled for January 2022, arguing the results would provide better insight
into her ability care for the children. She asks for a six-month extension7 to have
this done and begin training to become a parent capable of caring for these
children. But, she did not request this extension at the termination hearing. As
such, error has not been preserved, and we do not address the issue. See In re
T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App. 1994) (“As a general rule, an issue
not presented in the juvenile court may not be raised for the first time on appeal.”).
Conclusion.
With the health concerns involved here, we agree with the juvenile court’s
urgency to allow these children a home with a caretaker engaged in their well-
being. Thus, because error was not preserved as to the father’s challenge of
7 Iowa Code section 232.104(2)(b) states, “An order [granting a six-month
extension] shall enumerate the specific factors, conditions, or expected behavioral
changes which comprise the basis for the determination that the need for removal
of the child from the child’s home will no longer exist at the end of the additional
six-month period.”
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reasonable efforts, the mother did not preserve error to ask for a six-month
extension, and termination of the mother’s parental rights is in the best interests of
the children, we uphold the juvenile court’s order terminating the parental rights of
the mother and father.
AFFIRMED ON BOTH APPEALS.