IN THE COURT OF APPEALS OF IOWA
No. 20-1008
Filed November 30, 2020
IN THE INTEREST OF A.M.,
Minor Child,
D.M., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Deborah Farmer
Minot, District Associate Judge.
A father appeals an order terminating his parental rights. AFFIRMED.
Joseph C. Pavelich, Iowa City, for appellant father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Anthony A. Haughton of Linn County Advocate, Inc., Cedar Rapids, attorney
and guardian ad litem for minor child.
Considered by Mullins, P.J., and May and Schumacher, JJ.
2
SCHUMACHER, Judge.
A father appeals an order terminating his parental rights with respect to his
one-year-old daughter, A.M.1 He alleges error by the district court in ordering a
termination of parental rights as opposed to establishing a guardianship. He also
argues a denial of reasonable efforts during the course of the underlying child in
need of assistance (CINA) proceeding due to modification of visitation following
the outbreak of the COVID-19 pandemic. We find termination of the father’s
parental rights is the appropriate permanency option for A.M. Although error was
unpreserved on the father’s reasonable-efforts argument, we address such
argument in light of the COVID-19 pandemic concerns raised by the father.
However, we find his argument to be without merit. Accordingly, we affirm.
I. Facts and Prior Proceedings
The Iowa Department of Human Services (DHS) became involved with
newborn A.M. on June 11, 2019, as a result of her umbilical cord testing positive
for marijuana. In the week following this test, a second report was received by
DHS, alleging A.M.’s parents were using and dealing drugs around the baby.
Shortly after A.M.’s birth, the father was incarcerated, and the mother left A.M. in
the care of A.H., the child’s maternal great-aunt.
DHS again became involved with A.M. on June 27, after a search warrant
was executed on the parents’ apartment, resulting in possession of drugs and
paraphernalia charges against the mother. A DHS worker met with both parents
and explained the removal process. Both parents expressed a willingness to
1 The mother’s rights were also terminated. She does not appeal.
3
cooperate. A order was entered removing A.M. from her parents’ custody and
placing her custody with DHS. A.M. was placed with her maternal great-aunt. On
July 3, the placement reported that when she took A.M. for a visit with the parents,
they became angry and threatening toward the placement. As a result, all future
visits were required to be supervised by a DHS or Family Safety, Risk, and
Permanency (FSRP) provider.
A removal hearing was held on July 5, where both parents stipulated to
continued removal and adjudication of A.M. as a CINA. A.M. was adjudicated
CINA on the same date, pursuant to Iowa Code sections 232.2(6)(c)(2), (n), and
(o) (2019). An FSRP provider met with the parents to arrange visits. The parents
refused hair-stat drug testing, indicating it was against their religion, and requested
other forms of testing. DHS arranged for alternate testing, including urinalyses and
drug-patch testing. The parents also agreed to complete substance-abuse and
mental-health evaluations.
Through July and August, visits were provided through Families, Inc. Both
parents attended most visits and demonstrated a basic ability to care for A.M.
However, during this same time period, both parents tested positive for marijuana
and PCP. Following the receipt of these positive test results, the parents stopped
complying with drug testing and began to complain about the placement’s care of
the child. The parents also began to deny reasons existed for the initial removal.
At a dispositional hearing on September 5, the parents asked the court to place
A.M. in foster care rather than remaining with a relative. A.M. was moved to a
foster home.
4
By the end of October, the parents were becoming more resistant to
services provided by DHS and increasingly agitated with the reunification efforts.
At a visit on November 6, when the FSRP provider gave the father parenting
suggestions, he became visibly angry and argumentative. A DHS worker arrived
to observe the visit and arrange for both parents to begin substance-abuse
treatment. The parents continued arguing, using vulgar language in the presence
of A.M.
On November 7, the father sent a threatening text to the FSRP provider
prompting DHS to move all visits to the DHS office and provide the father a warning
letter. After this, both parents’ cooperation dramatically decreased. The parents
frequently arrived late or cancelled visits. Both parents demonstrated disrespectful
and threatening behavior toward DHS and FSRP providers. Visits were
suspended in January 2020 after the parents became assaultive and aggressive
during a scheduled visitation at the DHS office.2 Law enforcement was required
to be called. A meeting was scheduled to discuss the behavioral changes that
needed to occur to restart visits. Neither parent attended the meeting.
On January 21, an in-court review was held, and the mother asked that A.M.
be returned to the maternal great-aunt’s care. At this hearing, both parents’
attorneys requested to withdraw, citing differences about how the case should
proceed. The motions to withdraw were granted. On January 30, the State filed
2 Both parents were verbally aggressive with workers. The father left the visitation
room and was able to access the office area of DHS. The mother threw a chair
down the hallway, tore a bulletin board off the wall, knocked a sign off the wall, and
threw a lid from a recycling bin down a hallway.
5
a petition to terminate parental rights. A.M. remained in DHS custody, but her
placement was moved back to her maternal great-aunt on February 21.
Throughout February, DHS and FSRP attempted to contact the parents to
schedule a safety meeting as required by the court. The parents did not respond.
While the termination hearing was originally set for March 8, the court continued
the hearing at the parents’ request to provide additional time to locate counsel.3
The court also ordered DHS to provide in-home and at-work drug testing as the
parents stated it was hard for them to comply with testing because of their
schedules. The parents also signed a safety plan and provided their work
schedules so they could resume visits. The dispositional order was modified, with
custody of A.M. placed with the relative placement on April 29.
The parents’ cooperation was short-lived. While they displayed good skills
and behavior at the first resumed visit, the parents’ behavior again worsened as
they became threatening toward A.H.4 At the conclusion of supervised video visits,
the parents would call A.H. and demand to see A.M. without the FSRP provider
present. This resulted in a no-contact order being entered on May 23 between the
parents and A.H. except during supervised visits.
A combined permanency and termination hearing was held on July 5.
Neither parent appeared for the hearing. Both parents submitted affidavits in lieu
of live testimony. The father’s affidavit did not raise an issue concerning
reasonable efforts surrounding visitation but rather requested that guardianship of
3 A record was made of the parents’ request to have the same attorney appointed
to represent both of their interests.
4 The week following the first resumed visitation, the DHS building closed as a
result of the COVID-19 pandemic.
6
A.M. be placed with her current placement, A.H.5 The case manager testified her
recommendation for termination derived, in part, from the parents’ instability,
volatile relationship, and substance-abuse issues. The district court terminated
the father’s parental rights on July 16, pursuant to Iowa Code section 232.116(1)(h)
(2020). The father does not contest the statutory ground relied on by the district
court.
II. Standard of Review
A review of a termination of parental rights is de novo. In re A.S., 906
N.W.2d 467, 472 (Iowa 2018). “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.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).
III. Analysis
A. The father’s request for a guardianship as a permanency option.
The father first contends the district court should have established a
guardianship with the current placement instead of terminating his parental rights.
We begin with the principle that “a guardianship is not a legally preferable
alternative to termination.” A.S., 906 N.W.2d at 477 (quoting In re B.T., 894
N.W.2d 29, 32 (Iowa Ct. App. 2017)). Although section 232.104(2)(d) allows for
5In part, the father’s one-page affidavit accepted responsibility for his actions
during the CINA case, stating:
I take full responsibility for what I have or have not done. There was
a choice I had to make with myself and that was either my daughter
alone or protect and stand beside my wife and be her rock. Well, the
choice was clear and although this was a terribly hard decision to
make I do believe [A.M.] is in great care but it is my wife who needs
me now more th[a]n ever. I understand that in making this decision
that it completely withdraws my ability to be a father at this moment.
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the establishment of a guardianship as a permanency option, section 232.104(3)
requires “a judicial determination that [such a] planned permanent living
arrangement is the best permanency plan for the child.” See B.T., 894 N.W.2d at
32–33.
Determining the best permanency plan for a child is a best-interests
assessment. A.M. is very young. A guardianship, rather than termination, would
not promote stability or provide permanency to this young child’s life. See In re
R.S.R., No. 10-1858, 2011 WL 441680, at *4 (Iowa Ct. App. Feb. 9, 2011) (“So
long as a parent’s rights remain intact, the parent can challenge the guardianship
and seek return of the child to the parent’s custody.”). Guardianships can
inherently be changed or terminated. See A.S., 906 N.W.2d at 477–78.
Cognizant of this issue, the district court found:
A guardianship cannot possibly meet [A.M.’s] need for permanency.
A guardianship is, by its very nature, impermanent. A guardian has
no parental authority, she has only the power granted by a court.
Parental rights remain intact, allowing parents to intervene and
interfere in decisions about school, medical treatment, and other
matters. Parents have the right to seek to overturn a guardianship,
or replace the guardian, possibly with the assistance of court-
appointed counsel, placing the guardian in the position of having to
hire an attorney. Any of these scenarios could place a child in the
middle of a tug-of-war between her guardian and her parents that
could last for years, possibly throughout her childhood. More
importantly, a guardian is required by law to regulate the relationship
between a child and her parents. It has been conclusively
established over the past year that these parents do not respect [the
placement], they do not accept that she has any authority with
respect to [A.M.], and they verbally abuse, insult, and threaten her.
There is every reason to believe that the parents will resist and defy
any conditions set by a guardian and any orders entered in a
guardianship case, just as they have done over the past year in the
child in need of assistance case.
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Upon our de novo review, we agree with the district court that termination of
parental rights is the best permanency option for A.M.
B. Reasonable efforts for reunification.
The father also contends he was not provided reasonable efforts toward
reunification in light of the COVID-19 pandemic with regard to visitation. We
initially note the father did not preserve this argument. “[T]he general rule that
appellate arguments must first be raised in the trial court applies to CINA and
termination of parental rights cases.” In re A.B., 815 N.W.2d 764, 773 (Iowa 2012).
The father did not raise this issue before the district court.
However, given the extraordinary circumstances of the pandemic, we
nevertheless address the issue in light of the COVID-19 related visitation
restrictions. “The court’s determination regarding continuation of the child in the
child’s home, and regarding reasonable efforts . . . must be made on a case-by-
case basis.” Iowa Code § 232.102(4)(b). We have evaluated reasonable efforts
in light of COVID-19 in the recent past. See, e.g., In re D.W., No. 20-0725, 2020
WL 5946093, at *2 (Iowa Ct. App. Oct. 7, 2020) (looking at reasonable efforts over
the entire DHS involvement and not just the most recent month); In re B.S., No.
20-1071, 2020 WL 5946405, at *3 (Iowa Ct. App. Oct. 7, 2020) (determining
reasonable efforts focus on the safety of the child and finalizing a permanency plan
in a timely manner, and that if COVID-19 did not prevent participation in services,
reasonable efforts were offered); In re W.L., No. 20-0880, 2020 WL 5229199, at
*1−2 (Iowa Ct. App. Sept. 2, 2020) (looking at parent’s behavior prior to the COVID-
19 pandemic to determine if an extension would have changed the potential
outcome); In re E.A., No. 20-0849, 2020 WL 4498164, at *2 (Iowa Ct. App. Aug. 5,
9
2020) (stating the court “will not delay permanency for the children simply because
of unexpected changes in services”). We have previously held that when faced
with the reasonable-efforts issue in light of the pandemic, we should look at the
parent’s engagement with the efforts that were offered prior to the pandemic. E.A.,
2020 WL 4498164, at *2. “Parents must adapt to unplanned situations and
overcome unexpected challenges.” Id.
The State’s duty to make reasonable efforts encompasses a visitation
arrangement “designed to facilitate reunification while protecting the child from the
harm responsible for the removal.” In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App.
1996). Visitation, however, cannot be considered in a vacuum. It is only one
element in what is often a comprehensive, interdependent approach to
reunification. If services directed at removing the risk or danger responsible for a
limited visitation scheme have been unsuccessful, increased visitation would most
likely not be in the child’s best interests. Id.
Prior to the pandemic, the father had ceased participation in the drug tests
offered by DHS and was aggressive with providers and workers. He had not
participated with drug testing for over eight months by the time of the termination
hearing.6 When the pandemic began, and visits were conducted through video
conference, the parents would delay visits and attempt to work around the DHS
supervision. After the outbreak of the pandemic, the parents were also offered
visits outside, which they declined. The father failed to complete mental-health
6Between October 17, 2019, and June 11, 2020, the father failed to appear for a
minimum of thirty-one drug tests.
10
and substance-abuse treatment. Looking at the comprehensive plan for
reunification, we find DHS provided reasonable efforts to the father.
IV. Conclusion
Termination of parental rights was the appropriate permanency option for
A.M. Reasonable efforts for reunification were provided to the father. We affirm
the termination order.
AFFIRMED.