IN THE COURT OF APPEALS OF IOWA
No. 20-1067
Filed November 4, 2020
IN THE INTEREST OF C.F.,
Minor Child,
J.N., Mother,
Appellant,
S.F., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan Cox, District
Associate Judge.
A mother and father separately appeal the termination of their respective
parental rights. AFFIRMED ON BOTH APPEALS.
Stephen K. Allison of Stephen Allison Law, PLLC, Des Moines, for appellant
mother.
Jessica J. Chandler of Chandler Law Office, Windsor Heights, for appellant
father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Lynn Vogan of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor child.
Considered by Mullins, P.J., and May and Schumacher, JJ.
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MAY, Judge.
A mother and father separately appeal the termination of their respective
parental rights to their child, C.F., who was four years old at the time of the
termination hearing. Clear and convincing evidence establishes (1) grounds for
termination, (2) termination is in C.F.’s best interest, and (3) the father should not
be given additional time to work toward reunification. We affirm.
We review termination proceedings de novo. In re Z.P., 948 N.W.2d 518,
522 (Iowa 2020). “We will uphold an order terminating parental rights where there
is clear and convincing evidence of the statutory grounds for termination. Evidence
is clear and convincing when there is no serious or substantial doubt as to the
correctness of the conclusions of law drawn from the evidence.” In re T.S., 868
N.W.2d 425, 431 (Iowa Ct. App. 2015) (internal citation omitted).
We generally use a three-step analysis to review the termination of parents’
rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). We must determine:
(1) whether grounds for termination have been established, (2) whether
termination is in the child’s best interest, and (3) whether we should exercise any
of the permissive exceptions to termination. Id. at 472–73. “However, if a parent
does not challenge a step in our analysis, we need not address it.” In re J.P.,
No. 19-1633, 2020 WL 110425, at *1 (Iowa Ct. App. Jan. 9, 2020).
Both parents claim the State failed to satisfy the statutory grounds
authorizing termination. The juvenile court found grounds authorizing termination
under Iowa Code section 232.116(1)(f) (2020). Paragraph (f) authorizes
termination when:
(1) The child is four years of age or older.
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(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 twelve of the last eighteen months, or
for the last twelve 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.
Iowa Code § 232.116(1)(f). Both parents limit their challenges to the fourth
element, whether C.F. could be returned to their respective homes.1 The fourth
element is satisfied when the State establishes the child cannot be safely returned
to the parent at the time of the termination hearing. In re T.W., No. 20-0145, 2020
WL 1881115, at *2–3 (Iowa Ct. App. Apr. 15, 2020). We address each parents’
claim in turn.
With respect to the mother, we find C.F. could not be returned to her care
at the time of the termination hearing. The mother has a history of substance
abuse, including cocaine, opiates, and marijuana use. She tested positive for
cocaine and THC in October 2019. And since her positive October 2019 test, the
mother has not participated in drug testing when requested. “We presume these
missed drug tests would have resulted in positive tests.” In re I.J., No. 20-0036,
2020 WL 1550702, at *2 (Iowa Ct. App. Apr. 1, 2020); accord In re D.G., No. 20-
0587, 2020 WL 4499773, at *4 (Iowa Ct. App. Aug. 5, 2020); In re L.B., No. 17-
1439, 2017 WL 6027747, at *2 (Iowa Ct. App. Nov. 22, 2017); In re C.W., No. 14-
1501, 2014 WL 5865351, at *2 (Iowa Ct. App. Nov. 13, 2014) (“She has missed
several drug screens, which are thus presumed ‘dirty,’ i.e., they would have been
1 The parents do not live together. The mother lives in Iowa, and the father lives
in Texas.
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positive for illegal substances.”). And at the termination hearing, the mother
conceded her substance abuse prevented her from being able to adequately care
for both herself and C.F.2 We agree and conclude the mother’s drug use prevented
reunification. See In re L.B., No. 18-1017, 2018 WL 3650370, at *1 (Iowa Ct. App.
Aug. 1, 2018) (collecting cases affirming termination of a parent’s parental rights
when the parent has a history of substance abuse).
In addition, we question whether the mother’s lifestyle is steady enough to
meet the heavy demands of parenting. The mother often missed visitations
because of her unpredictable work schedule. And she testified she doesn’t know
if and when she will work each day until 8:00 a.m. She sometimes has as little as
two hours’ notice of a job.
So we question how she would secure childcare on such short notice.
Certainly, many parents have employment with unpredictable work hours, and we
do not suggest this alone prevents reunification. But when asked about daycare
options, the mother stated that her grandmother knew more about daycare options
than she does. And the mother just assumed she could take C.F. to a daycare
she used prior to removal—which was nearly three years before the termination
hearing. When asked about her support system, the mother identified C.F. as her
top supporter. She then referenced her grandmother, stated she has cousins, and
noted the father serves as a support. But the father lives out of state, and the
mother did not provide additional detail on whether her grandmother and cousins
2 The mother later backpedaled from this admission, but we believe her first
assessment of her ability to care for herself and C.F. to be the most organic and
honest.
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could consistently provide childcare when needed. This all suggests the mother
does not have specific plans on how to safely care for C.F. Cf. Z.P., 948 N.W.2d
at 524–25 (concluding a child could not be returned to a father when he did not
have a practical plan established to care for the child, including when he worked
long hours).
Also, the mother’s criminal activity raises questions as to whether she would
be around to parent C.F. The mother was most recently jailed in March for violating
probation. In April, she pled guilty to assault on a peace officer, operating while
intoxicated, and malicious prosecution. She was sentenced to a three-year
suspended sentence and placed on probation for two years. Based on the
mother’s criminal history, we are not satisfied she will not be incarcerated again in
the foreseeable future.
The mother suggests she did not make more progress because the Iowa
Department of Human Services (DHS) failed to make reasonable efforts toward
reunification. Specifically, she argues she was entitled to additional services at the
beginning of the case because she was a minor when the juvenile court
adjudicated C.F. as a child in need of assistance.
Certainly, as part of its ultimate proof, the State must establish it made
reasonable efforts to return C.F. to his home. See Iowa Code § 232.102(7)
(providing DHS must make “every reasonable effort to return the child to the child’s
home as quickly as possible consistent with the best interests of the child”). But
parents must raise their complaints regarding reasonable efforts prior to the
termination hearing. See In re L.M., 904 N.W.2d 835, 839–40 (Iowa 2017)
(“[P]arents have a responsibility to object when they claim the nature or extent of
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services is inadequate.”); In re C.H., 652 N.W.2d 144, 147 (Iowa 2002) (“If,
however, a parent is not satisfied with DHS’[s] response to a request for other
services, the parent must come to the court and present this challenge.”); In re
O.T., No. 18-0837, 2018 WL 3302167, at *2 (Iowa Ct. App. July 5, 2018) (“The
failure to request different or additional . . . services in the juvenile court precludes
[the parent’s] challenge to the services on appeal.”); In re A.A.G., 708 N.W.2d 85,
91 (Iowa Ct. App. 2005) (stating the parent has an obligation to demand other,
different, or additional services prior to the termination hearing or the issue is
considered waived for appeal). And we can find no instance in which the mother
requested additional services because she was a minor at the beginning of the
case. So the mother did not preserve any reasonable-efforts challenge.3
In light of the mother’s criminal history, lack of a practical parenting plan,
and her unresolved substance abuse, we conclude C.F could not be safely
returned to her care at the time of the termination hearing.4
We reach the same conclusion as to the father. It does not appear he has
a meaningful relationship with C.F. He was largely uninvolved over the life of this
case and remains out of state. The father admitted, “I haven’t been doing my part
3 We also note the mother’s petition on appeal is silent as to what additional
services should have been provided.
4 We note the mother’s petition on appeal suggests her progress toward
reunification was hampered by the necessary modifications to services resulting
from the COVID-19 pandemic. But this case began in May 2018—almost two
years before COVID-19 impacted services. And “[t]his is not a parent whose hard
work placed her on the threshold of reunification only to be thwarted by a once-in-
a-lifetime event. This is a parent who was given ample time to gain the skills
necessary for reunification but simply failed to progress, pandemic or no
pandemic.” See In re E.A., No. 20-0849, 2020 WL 4498164, at *2 (Iowa Ct. App.
Aug. 5, 2020). So the impact of COVID-19 on services does not impact our
confidence that the child could not return to the mother’s care.
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as far as being a father to [C.F.] in this case.” We agree with his assessment. And
we conclude C.F. could not be safely returned to the father at the time of the
termination hearing.
We conclude the State established a statutory ground for termination with
respect to both parents.
Our next step centers on C.F.’s best interest. See Iowa Code § 232.116(2).
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.” In re P.L., 778 N.W.2d
33, 40 (Iowa 2010) (quoting Iowa Code § 232.116(2)). “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.” Id. at 41.
The mother does not challenge the best-interest determination. So we do
not address the issue with respect to her. And the father only briefly references
the best-interest issue through a case citation. So the issue is not sufficiently
developed for our review. See In re K.M., No. 19-1637, 2020 WL 110408, at *3
n.6 (Iowa Ct. App. Jan. 9, 2020); In re O.B., No. 18-1971, 2019 WL 1294456, at *2
(Iowa Ct. App. Mar. 20, 2019). If it were, we would find termination to be in C.F.’s
best interest. He has virtually no relationship with the father. But C.F. is doing well
in his current foster home. And he has historically had difficulty transitioning to
new homes. So placing him in a new home with his father would be adverse to
C.F.’s best interest.
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Next, we consider whether to apply a section 232.116(3) exception to
termination. Section 232.116(3) exceptions are permissive, not mandatory. In re
A.R., 932 N.W.2d 588, 591 (Iowa Ct. App. 2019). And the burden of establishing
a section 232.116(3) exception rests with the parent. See A.S., 906 N.W.2d at
476. Neither parent specifically argues a section 232.116(3) should apply to
prevent termination.5 So we do not apply an exception.
Finally, we address the father’s contention that he should be given
additional time to complete an Interstate Compact on the Placement of Children
(ICPC) study. The juvenile court may defer termination for a period of six months
if it is able to “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.” Iowa Code § 232.104(2)(b). We agree with the juvenile court
that the father should not be given additional time. The father has had years to
complete an ICPC study. Workers in Iowa and Texas tried to facilitate an ICPC
study before, and the father dropped the ball when he did not communicate with
workers. We have no reason to believe anything would be different another time
around. We refuse to leave C.F. in limbo any longer.
We affirm the juvenile court as to both parents.
AFFIRMED ON BOTH APPEALS.
5The father does take issue with the juvenile court’s finding that there is no bond
between himself and C.F. The strength of the parent-child bond can serve as a
basis to preclude termination under section 232.116(3)(c). But the father does not
argue his bond with C.F. is strong enough to preclude termination.