In the Interest of O.R., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 19-1177
Filed June 3, 2020

IN THE INTEREST OF O.R.,
Minor Child,

K.R., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

District Associate Judge.

A mother appeals the termination of her parental rights to one of her

children. AFFIRMED.

Katharine Massier of Branstad & Olson Law Office, Des Moines, for

appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Nicole Garbis Nolan of Youth Law Center, Des Moines, attorney and

guardian ad litem for minor child.

Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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VAITHESWARAN, Presiding Judge.

A mother appeals the termination of her parental rights to one of her

children, born in 2008. She contends (1) the record lacks clear and convincing

evidence to support termination under Iowa Code section 232.116(1)(d) (2019);

(2) the department of human services failed to make reasonable efforts to reunify

her with her child; and (3) “the juvenile court erred in denying [her] motion to

bifurcate the roles of [the child’s] attorney and [guardian ad litem].”

I. Grounds for Termination

The court of appeals recently addressed the termination of the mother’s

parental rights to another child. See In re M.S., No. 19-1550, 2020 WL 377889

(Iowa Ct. App. Jan. 23, 2020). We found the department intervened after learning

“that the man with whom the mother was having a relationship asked the nine-

year-old [half-sibling of the] child to engage in sex acts.” M.S., 2020 WL 377889,

at *1. This appeal involves the nine-year-old half-sibling.

The district court terminated the mother’s parental rights to the child under

several statutory grounds. The mother only challenges the evidence supporting

one of the provisions. Accordingly, she has waived error with respect to the

remaining grounds. In re N.S., No. 14-1375, 2014 WL 5253291, at *3 (Iowa Ct.

App. Oct. 15, 2014) (“When the juvenile court terminates parental rights on more

than one statutory ground, we may affirm the order on any ground we find

supported by the record. The mother’s failure to raise the remaining statutory

grounds for termination waives any claim of error related to those grounds.”). That

said, our de novo review of the record convinces us that termination was warranted
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under Iowa Code section 232.116(1)(f), which requires proof of several elements,

including proof the child cannot be returned to the mother’s custody.

II. Reasonable Efforts

The mother argues the department failed to make reasonable efforts to

reunify her with the child. See In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (noting

that specified termination grounds “contain a common element which implicates

the reasonable effort requirement”). She asserts (a) the department “cancelled a

significant number of . . . visits”; (b) she was not afforded a “professional opinion

from a psychiatrist or psychologist regarding her parenting ability” and was not

assigned a court appointed special advocate; and (c) she was denied her rights to

equal protection and due process as guaranteed by the United States and Iowa

Constitutions.

We addressed certain cancelled visits in our prior opinion. M.S., 2020 WL

377889, at *2. We agreed with the mother that the department did not hold several

visits but noted that the missed time was made up. Id. We concluded “the

department satisfied its reasonable-efforts mandate.” Id.

In this proceeding, the mother filed a “renewed motion for reasonable

efforts” listing a series of canceled visits with the nine-year-old child. She asserted

the child “received only 13.5 hours of visits with her mother as of March 12, 2019,”

which was “still 8.5 hours short.” At the termination hearing, the mother testified

to having “minimal” visits with the child in 2019, but she did not document the

number of missed visits or mention the shorted hours. Although her attorney

attempted to raise the issue during closing argument, the guardian ad litem

objected as beyond the scope of the record. The mother’s attorney conceded she
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did not elicit testimony on missed visits “in this action.” Without a record, we cannot

address the issue. See State v. Christianson, 337 N.W.2d 502, 504 (Iowa 1983)

(stating it is generally an appellant’s “obligation to provide this court with a record

affirmatively disclosing the error relied upon” and an appellant “may waive error by

failing to provide us with a record that affirmatively shows the basis of the alleged

error.” (citations omitted)).

We turn to the mother’s request for a psychiatric or psychological opinion

about her parenting ability. The mother concedes the district court did not address

the issue. Accordingly, we question whether error was preserved. 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.”). Bypassing that concern, the

record contains the following opinion of the mother’s therapist on impediments to

appropriate parenting:

[The mother] has been able to voice understanding of safety
concerns with her children. As a result of this, [she] has reported a
termination in her relationship with her boyfriend and a change in
address to reflect this termination. [The mother] is engaged in
session and is open and receptive to feedback at this time. Therapist
will continue to work with client on increasing affect tolerance,
emotional integration and how her past experiences are impacting
her current parenting practices.

Several days after the therapist submitted the letter, the department reported that

the mother “was not honest with her therapist or the children’s therapist about the

nature of her relationship with the” man and, specifically, her ongoing sexual

relationship with him. Just before the termination hearing, the mother’s therapist

updated her opinion. She noted that the mother later corrected the misinformation
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and told her of her continued “sexual relationship with the man.” The therapist

opined that the mother needed to “gain more insight on how her co-parenting

relationship with” the man “could impact this child” and needed to set “healthy,

realistic expectations for this relationship.” In short, the record contains a mental-

health professional’s opinion about the mother’s parenting ability, obviating the

need for the department to schedule another evaluation, as the mother requested.

The mother also argues a court appointed special advocate (CASA) should

have been provided. The district court addressed the issue as follows:

I know there was no evidence presented to this Court . . . today
regarding lack of a CASA being provided. I will be clear on the
record. The Court can order them, but if there’s not CASA’s
available, this Court cannot compel a voluntary agency to engage in
a service that they provide to the Court when they have availability.
There was no evidence before the Court today regarding a CASA.

In light of the absence of evidence on the issue, we again question whether error

was preserved. We bypass that concern and proceed to the merits.

A “court appointed special advocate” is defined as:

a person duly certified by the child advocacy board created in section
237.16 for participation in the court appointed special advocate
program and appointed by the court to represent the interests of a
child in any judicial proceeding to which the child is a party or is called
as a witness or relating to any dispositional order involving the child
resulting from such proceeding.

Iowa Code § 232.2(9). The definition does not charge a CASA with making

reasonable reunification efforts; that obligation rests with the department. See id.

§ 232.102(4)(b) (“If the court transfers custody of the child, unless the court waives

the requirement for making reasonable efforts or otherwise makes a determination

that reasonable efforts are not required, reasonable efforts shall be made to make

it possible for the child to safely return to the family’s home.”), (10)(a) (defining
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“reasonable efforts” as “the efforts made to preserve and unify a family prior to the

out-of-home placement of a child in foster care or to eliminate the need for removal

of the child or make it possible for the child to safely return to the family’s home”);

C.B., 611 N.W.2d at 493–94 (describing the scope of the efforts by the

department). Accordingly, we conclude the absence of a CASA did not implicate

the department’s reasonable efforts mandate.

Finally, the mother’s constitutional challenges to the claimed denial of

services were neither raised nor decided. Error was not preserved. See In re

Voeltz, 271 N.W.2d 719, 722 (Iowa 1978).

III. Conflict

The district court appointed counsel to serve as the child’s attorney and as

her guardian ad litem. The mother contends the court should have bifurcated the

roles because, in her view, the guardian ad litem “held a strong position that [the

child] should not return to her,” which was “clearly a conflict between [the child]’s

stated wishes.”

Iowa Code section 232.89(4) addresses the roles of guardian ad litem and

counsel for a child:

[T]he court may appoint a separate guardian ad litem, if the same
person cannot properly represent the legal interests of the child as
legal counsel and also represent the best interest of the child as
guardian ad litem, or a separate guardian ad litem is required to fulfill
the requirements of subsection 2.

Iowa Code section 232.89(2)(a), in turn, states:

If the child is represented by counsel and the court determines there
is a conflict of interest between the child and the child’s parent,
guardian or custodian and that the retained counsel could not
properly represent the child as a result of the conflict, the court shall
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appoint other counsel to represent the child, who shall be
compensated pursuant to the provisions of subsection 3.

This court addressed a conflict-of-interest situation in In re A.T., 744 N.W.2d 657,

660 (Iowa Ct. App. 2007). The court stated, “[T]he older, more intelligent, and

mature the child is, the more impact the child’s wishes should have, and a child of

sufficient maturity should be entitled to have the attorney advocate for the result

the child desires.” A.T., 744 N.W.2d at 663.

Here, the department obtained a social worker’s opinion stating the child

was “immature for her age” and “[h]er thinking [was] impulsive at times.” At the

termination hearing, the district court noted that it previously “addressed this issue”

and “made specific findings based on the therapist input that she does not believe

that this child is of an emotional age, even if she is 11 at this time, to have an

opinion regarding that matter.” We discern no abuse of discretion in the court’s

ruling. See id. at 665 (setting forth standard of review).

We affirm the termination of the mother’s parental rights to the child.

AFFIRMED.