IN THE COURT OF APPEALS OF IOWA
No. 17-0573
Filed June 7, 2017
IN THE INTEREST OF R.M.,
Minor Child,
T.B., Mother,
Appellant,
I.M., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Steven J.
Holwerda, District Associate Judge.
A mother and father separately appeal from the juvenile court’s order
terminating their parental rights to their child, who is a member of an Indian tribe.
AFFIRMED ON BOTH APPEALS.
Deborah L. Johnson of Deborah L. Johnson Law Office, P.C., Altoona, for
appellant mother.
Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, and Jane K.
Odland of Odland Law Firm, P.L.L.C., Newton, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Meegan M. Keller of Keller Law Office, P.C., Altoona, attorney and
guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2
MULLINS, Judge.
A mother and father separately appeal from the juvenile court’s order
terminating their parental rights to their child, R.M., who is a member of the
Seminole Nation of Oklahoma.1 They both argue (1) the State failed to prove the
statutory grounds for termination; (2) termination is not in their child’s best
interests; (3) the juvenile court should have granted them an additional six
months to work toward reunification with their child; and (4) exceptions to
termination exist because the child is placed with a relative and shares a bond
with her parents. Upon our de novo review, we affirm.
I. Background Facts and Proceedings
The family first came to the attention of the Iowa Department of Human
Services (DHS) in September 2015, due to allegations the parents were using
illegal drugs while caring for their child. Subsequently, concerns were raised
about domestic violence between the parents. In October, the juvenile court
entered an order removing the child from the parents’ custody and placing the
child with her maternal grandmother.2 In December, the court adjudicated R.M. a
child in need of assistance (CINA).
In October 2016, the court held a combined permanency and termination
hearing. At the hearing, the father testified he had a lengthy history of using
illegal drugs, had never provided a clean drug screen for DHS, had last used
illegal drugs three months prior, and had not completed any substance-abuse
1
It is undisputed R.M. is an Indian child as defined in the Indian Child Welfare Act
(ICWA). See Iowa Code § 232B.3 (2016).
2
The record shows the child has lived with the maternal grandmother since June 2015,
when she was approximately one month old, due to the parents’ instability and the
domestic violence between them.
3
treatment program. He further testified he did not provide financial assistance for
the child to the maternal grandmother because the grandmother had not
requested it. Additionally, the father admitted he had criminal charges pending
against him at that time and he had not held stable employment during the
pendency of the CINA case. The mother testified she also had a history of using
illegal drugs and had never completed the recommended substance-abuse
treatment. She admitted she did not obtain the court-ordered mental-health
evaluation. The mother also had not had stable housing or employment during
the underlying CINA action. Finally, both parents admitted R.M. could not be
returned to their care and custody at the time of the termination hearing.
In November, the juvenile court terminated the mother’s and the father’s
parental rights pursuant to Iowa Code section 232.116(1)(e) and (h). Both
parents filed motions to enlarge or amend the court’s factual findings and
conclusions of law, which the court denied. The mother and father then
appealed the court’s termination order.
In February 2017, the supreme court reversed the juvenile court’s order
and remanded the case “for presentation of expert testimony that will provide the
juvenile court with knowledge of the social and cultural aspects of Indian life to
diminish the risk of any cultural bias in the termination decision.” (Citation
omitted.)
In March, the juvenile court held a hearing on the remanded issue. An
Indian child welfare worker and case worker for the Seminole Nation of
Oklahoma testified as an expert witness regarding the social and cultural aspects
of Indian life, and in particular the Seminole Nation of Oklahoma. The
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caseworker testified none of the facts or allegations in this case reflected any
cultural bias toward Indians or this specific tribe. She further testified DHS had
provided reasonable and active efforts to keep the family intact, the tribe’s rules
and code of laws would support a termination of parental rights in this case, and
return of the child to the parents’ custody would risk severe emotional or physical
harm to the child. Additionally, the caseworker testified the child’s placement
with her maternal grandmother is culturally appropriate, consistent with the tribe’s
customs and law, compliant with ICWA, and supported by the tribe. She testified
the establishment of a guardianship was not preferred due to the child’s young
age.
The juvenile court subsequently entered an amended and reissued order
terminating the parents’ parental rights pursuant to section 232.116(1)(e) and (h).
The mother and father separately appeal.
II. Standard of Review
We review termination-of-parental-rights proceedings de novo. In re
M.W., 876 N.W.2d 212, 219 (Iowa 2016). “We are not bound by the juvenile
court’s findings of fact, but we do give them weight, especially in assessing the
credibility of witnesses.” Id. (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa
2014)). When a court terminates parental rights on more than one ground, we
may affirm the order on any of the statutory grounds supported by clear and
convincing evidence. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). “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.”’”
In re M.W., 876 N.W.2d at 219 (alteration in original) (citation omitted).
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“However, termination of the parental rights of an Indian child shall not be
ordered unless supported by evidence beyond a reasonable doubt that ‘the
continued custody of the child by the child’s parent or Indian custodian is likely to
result in serious emotional or physical damage to the child.’” In re D.S., 806
N.W.2d 458, 465 (Iowa Ct. App. 2011) (quoting Iowa Code § 232B.6(6)(a)). “The
evidence must also include the testimony of a qualified expert witness as defined
in section 232B.10.” Id.
III. Analysis
“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 the State established the statutory grounds for termination by
clear and convincing evidence. See Iowa Code § 232.116(1); In re M.W., 876
N.W.2d at 219. Second, if the State established statutory grounds for
termination, we consider whether termination is in the child’s best interests under
section 232.116(2). See In re M.W., 876 N.W.2d at 219–20. Finally, we consider
whether any exceptions under section 232.116(3) weigh against termination.
See id. at 220.
“In addition to this analysis, Iowa Code chapter 232B sets forth Iowa’s
[ICWA], which extends further protections to Indian families and tribes.” In re
D.S., 806 N.W.2d at 465. ICWA has a dual purpose: “to protect the best
interests of a child and preserve the Indian culture.” Id. ICWA applies even
when “there is no evidence the child has been raised in an Indian culture.” Id.;
see also Iowa Code § 232B.5(2) (“A state court does not have discretion to
determine the applicability of . . . this chapter to a child custody proceeding
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based upon whether an Indian child is part of an existing Indian family.”). Still,
our primary consideration remains the best interests of the child. In re D.S., 806
N.W.2d at 465.
A. Statutory Grounds
The parents do not dispute the grounds for termination have been proved
under Iowa Code section 232.116(1)(h),3 and the record clearly shows these
statutory requirements have been met. At the time of the termination hearing,
R.M. was under the age of three. The juvenile court ordered R.M. removed from
her parents’ custody in October 2015, and there have been no trial periods at
home. R.M. was adjudicated CINA in December 2015. Additionally, both
parents admitted at the hearing that R.M. could not be returned to their care at
that time and instead requested the court grant them an additional six months to
achieve reunification or establish a guardianship with the child’s maternal
grandmother. Furthermore, the caseworker for the child’s tribe testified the
return of the child to the parents’ custody would risk severe emotional or physical
harm to the child.
Instead, the parents both contend the State did not make active efforts to
reunify the child with her parents. See Iowa Code § 232B.5(19) (“A party seeking
. . . termination of parental rights over an Indian child shall provide evidence to
the court that active efforts have been made to provide remedial services and
3
Under Iowa Code section 232.116(1)(h), the court may terminate parental rights
if the court finds the child (1) is three years old or younger; (2) has been
adjudicated CINA; (3) has been removed from the physical custody of the parent
for at least six of the last twelve months, or the last six consecutive months and
any trial period at home has been less than thirty days; and (4) cannot be
returned to the parent’s custody at the time of the termination hearing.
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rehabilitative programs designed to prevent the breakup of the Indian family and
that these efforts have proved unsuccessful.”). The parents did not raise this
issue to the juvenile court until after the termination order was entered and the
supreme court remanded the case. The juvenile court did not rule on this issue
in its amended and reissued order, and the parents did not file a motion seeking
a ruling on this issue. Therefore, these claims are not preserved for our review.
See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental
doctrine of appellate review that issues must ordinarily be both raised and
decided by the district court before we will decide them on appeal.”); see also In
re J.D.B., 584 N.W.2d 577, 581 (Iowa Ct. App. 1998) (“[N]othing in ICWA . . .
expressly or impliedly preempts a state’s error preservation rules.”).
Accordingly, we affirm the juvenile court’s order terminating the father’s
and the mother’s parental rights to their child pursuant to Iowa Code section
232.116(1)(h).
B. Best Interests
The parents next contend termination of their parental rights was not in
their child’s best interests under Iowa Code section 232.116(2). Even if a
statutory ground for termination is met under section 232.116(1), a decision to
terminate must still be in the best interests of the child under section 232.116(2).
In re M.W., 876 N.W.2d at 224.
In determining whether termination of a parent’s parental rights is in a
child’s best interests, we “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.” Iowa
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Code § 232.116(2). “Insight for the determination of a child’s long-range best
interests can be gleaned from ‘evidence of the parent’s past performance for that
performance may be indicative of the quality of the future care that parent is
capable of providing.” In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (quoting In
re C.B., 611 N.W.2d 489, 495 (Iowa 2000)).
The record shows both parents have a history of substance abuse that
they failed to address during the year the underlying CINA case was open. The
parents did not obtain stable employment or housing, and neither parent took any
steps to resolve their domestic-violence, anger-management, and mental-health
issues. The parents never progressed beyond supervised visits with their child
and their participation in visits was sporadic—the parents often showed up late to
the visits or left early when they did attend them. They provided minimal financial
assistance to the maternal grandmother for R.M.’s care. Additionally, the father
had several criminal charges pending against him at the time of the termination
hearing.
We cannot ask this child to continuously wait for her parents to become
stable. See In re D.W., 791 N.W.2d at 707; see also In re A.B., 815 N.W.2d at
778 (“It is simply not in the best interests of children to continue to keep them in
temporary foster homes while the natural parents get their lives together.”
(quoting In re C.K., 558 N.W.2d 170, 175 (Iowa 1997))). R.M. has been in her
maternal grandmother’s home since she was approximately one month old.
She’s doing well in her care, and the grandmother wishes to adopt the child.
Furthermore, the caseworker for the child’s tribe testified placement with her
grandmother is culturally appropriate and supported by the tribe and that a
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guardianship was not preferred due to the child’s young age. Termination is in
this child’s best interests.
C. Permissive Factors
“Once we have established that the termination of parental rights is in the
[child’s] best interests, the last step of our analysis is to determine whether any
exceptions in section 232.116(3) apply to preclude the termination.” In re M.W.,
876 N.W.2d at 225. Both parents assert the juvenile court should not have
terminated their respective parental rights because they each share a bond with
their child and the child is placed with a relative.
Iowa Code section 232.116(3)(a) provides “[t]he court need not terminate
the relationship between the parent and child if . . . [a] relative has legal custody
of the child.” Section 232.116(3)(c) provides a court may decide not to terminate
a parent’s parental rights 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.” The application of section 232.116(3) is
permissive, not mandatory. In re A.M., 843 N.W.2d at 113. “The court has
discretion, based on the unique circumstances of each case and the best
interests of the child, whether to apply the factors in this section to save the
parent-child relationship.” In re D.S., 806 N.W.2d at 475.
After reviewing the record in its entirety, we agree with the juvenile court
that any exception to termination should not be applied in this case. See In re
C.K., 558 N.W.2d at 174 (“An appropriate determination to terminate a parent-
child relationship is not to be countermanded by the ability and willingness of a
family relative to take the child.”). As noted above, R.M. is placed with her
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maternal grandmother and is thriving in her care. The grandmother is willing to
adopt her. R.M. is very young, and she needs and deserves permanency and
stability. See In re A.B., 815 N.W.2d at 777 (“It is well-settled law that we cannot
deprive a child of permanency after the State has proved a ground for
termination under section 232.116(1) by hoping someday a parent will learn to be
a parent and be able to provide a stable home for the child.” (quoting In re P.L.,
778 N.W.2d 33, 41 (Iowa 2010))).
Furthermore, any bond that exists between the parents and R.M. is
limited, considering the child’s young age and the time she has spent out of her
parents’ care. Indeed, the father admitted at the termination hearing he did not
have a “significant” bond with his child. The parents did not take advantage of
the offered visits, often cancelling visits with their child or failing to confirm visits.
When the parents did attend visits, they were often late, left early, or caused a
visit to end early due to their volatile behaviors. Thus, we conclude no
permissive factors under section 232.116(3) apply to preclude termination in this
case.
D. Additional Time
Finally, the parents argue the juvenile court should have granted their
requests for additional time to work toward reunification with their child. Under
Iowa Code section 232.104(2)(b), a court may authorize a six-month extension if
it determines “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.”
We must now view this case with a sense of urgency. See In re C.B., 611
N.W.2d at 495. “[A]t some point, the rights and needs of the children rise above
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the rights and needs of the parent.” In re C.S., 776 N.W.2d 297, 300 (Iowa Ct.
App. 2009). Based upon our de novo review of the record, we are not persuaded
the need for removal would no longer exist at the end of six months. See Iowa
Code § 232.104(2)(b).
IV. Conclusion
We have carefully reviewed the record, the briefs of the parties, and the
juvenile court’s ruling. Upon our de novo review, we conclude the State proved
the statutory grounds for termination of the father’s and the mother’s parental
rights and termination is in the child’s best interests. We further find no
permissive factors weighing against termination exist so as to preclude
termination. Finally, the juvenile court correctly denied any request for additional
time to work toward reunification. Accordingly, we affirm.
AFFIRMED ON BOTH APPEALS.