IN THE COURT OF APPEALS OF IOWA
No. 20-1378
Filed February 3, 2021
IN THE INTEREST OF A.M., J.M., N.M., A.M., A.M., D.M., and J.M.,
Minor Children,
D.M., Father of J.M., A.M., and J.M.,
Appellant,
A.M., Father of A.M., N.M., and A.M.,
Appellant,
E.L., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Lynn Poschner, District
Associate Judge.
The mother of all seven children and the two biological fathers of the six
youngest children appeal the juvenile court’s order terminating their parental rights.
AFFIRMED ON ALL THREE APPEALS.
Barbara O. Hoffman, Des Moines, for appellant father D.M.
Jamie F. Deremiah of Flanagan Law Group, PLLC, Des Moines, for
appellant father A.M.
David Barajas of Macro & Kozlowski, LLP, West Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
2
Arielle M. Lipman, West Des Moines, guardian ad litem for all minor children
and attorney for A.M., J.M., and J.M.
Ryan R. Gravett, Clive, attorney for minor child A.M.
Charles Fuson of Youth Law Center, Des Moines, attorney for minor child
N.M.
Michael A. Horn, Des Moines, attorney for minor child A.M.
Randall L. Jackson, Des Moines, attorney for minor child D.M.
Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
3
AHLERS, Judge.
In the cases underlying these appeals, the juvenile court terminated the
parental rights of all parents of the seven children involved pursuant to Iowa Code
chapter 232 (2020). All seven children have the same mother, and there are three
biological fathers. The following table lists the children along with their birth order,
ages at the time of the termination hearing, and their fathers:
Birth Order Child Age Father
1 Da.M 12 Father Da.M
2 Na.M 11 Father A.M
3 Aa.M 10 Father A.M.
4 An.M 9 Father A.M.
5 Av.M 5 Father De.M.
6 Jaz.M 3 Father De.M.
7 Jak.M 2 Father De.M.
As noted, the parental rights of the mother and all three fathers were terminated.
The mother, Father A.M., and Father De.M. appeal. Father Da.M. does not appeal.
I. Factual and Procedural Background
In 2013, the mother and Father A.M., who lived in Illinois at the time, ended
their relationship. Father A.M. last had contact with the children in 2016.
Father A.M. was incarcerated for a large portion of these proceedings. At the time
of termination, Father A.M. lived with his mother in Missouri.
In 2017, the mother, Father De.M., and the six oldest children moved from
Illinois to Iowa.1 The family2 was initially homeless upon arrival in our state. The
Iowa Department of Human Services (DHS) became involved with the family after
1 The youngest child had not been born yet when the family moved to Iowa.
2 Unless otherwise noted, the “family” refers to the mother, Father De.M., and the
children. Throughout these proceedings, the children were in the care of the
mother and Father De.M. until removal. Also, unless otherwise noted, “parents”
refers to the mother and Father De.M.
4
the mother failed to address her mental-health issues, failed to ensure the children
received needed medication, and failed to seek proper medical treatment for a cut
on An.M.’s foot. Upon further involvement with the family, it was discovered Na.M.
had serious mental-health issues. Concerns over the parents’ ability to supervise
the children, the mother’s mental-health issues, and Na.M.’s mental-health issues
resulted in Na.M. being removed from the home and placed in DHS custody in
December 2018 and all seven children3 being adjudicated children in need of
assistance.
The six children besides Na.M. initially remained in the parents’ care.
However, in April 2019, An.M. was removed from the parents’ care and placed in
DHS custody due to his ongoing mental-health struggles, his behavior at school,
indications he had suffered physical abuse, and his homicidal threats directed at
others.
In June 2019, the other five children were removed from the parents’ care
and placed in DHS custody due to the children’s behavioral and mental-health
issues, the parents’4 failure to address the issues, the parents’ failure to properly
supervise the children, the parents allowing a man to live in the house who sexually
assaulted Da.M., the parents’ failure to obtain needed medical (including mental-
health) treatment for the children, the parents’ sleeping excessively instead of
caring for the youngest children, and the filthy condition of the home.
3By this time, the youngest of the seven children had been born.
4At this time and continuing through the termination hearing, the mother and
Father De.M. resided together.
5
By the time of a subsequent review, Na.M. and An.M. each had been placed
in a psychiatric medical institution for children (PMIC) and the other five children
were in foster care. Due to the lack of progress by the parents, the children
remained in those placements. Subsequent permanency hearings resulted in the
parents being granted a six-month extension to work toward reunification with
Na.M. and An.M. as those children completed their PMIC programs. A
permanency hearing was scheduled regarding the other five children but was not
held independently due to the State filing petitions seeking termination of parental
rights. The permanency hearing was held in conjunction with the termination
hearing.
Following a hearing, the juvenile court terminated the rights of all parents.
The mother, Father A.M., and Father De.M. appeal. Additional facts will be
addressed as needed in relation to the issues raised by the parents on appeal.
II. Standard of Review
“We review proceedings terminating parental rights de novo.” In re A.S., 906
N.W.2d 467, 472 (Iowa 2018) (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa
2014)). “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 D.W., 791 N.W.2d 703, 706 (Iowa 2010)).
III. Analysis of the Issues Raised by the Parents
The mother and the two appealing fathers raise multiple issues. We will
address the issues raised by each appealing party in turn.
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A. The Mother
The mother raises two issues.5
1. Statutory Grounds
The mother’s parental rights to the five oldest children were terminated
pursuant to Iowa Code section 232.116(1)(f),6 and her rights to the two youngest
children were terminated pursuant to Iowa Code section 232.116(1)(h).7 The
mother does not dispute the first three elements of either paragraph. She
5 Although the mother’s petition on appeal makes reference to a challenge to the
juvenile court’s finding that termination was in the children’s best interest, she
makes no argument and cites no authority in support of this contention. Therefore,
we do not consider it. See State v. Gibbs, 941 N.W.2d 888, 902 (Iowa 2020)
(McDonald, J., concurring specially) (collecting cases describing ways issues can
be waived on appeal, including failing to make an argument in support of an issue
and failing to make more than a perfunctory argument); see also Iowa R. App. P.
6.1401–Form 5 (requiring “supporting legal authority” for each issue presented).
6 Iowa Code section 232.116(1)(f) permits the juvenile court to terminate a parent’s
rights if it finds:
(1) The child is four years of age or older.
(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 at the
present time the child cannot be returned to the custody of the child’s
parents as provided in section 232.102.
7 Iowa Code section 232.116(1)(h) requires proof 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.
7
challenges only the fourth element of each paragraph, asserting the State failed to
prove the children could not be returned to her custody at the time of the
termination hearing. See A.S., 906 N.W.2d at 473 (analyzing “at the present time”
to mean at the time of the termination hearing).
There were a myriad of reasons the children could not be returned to the
mother’s care at the time of the termination hearing. Those reasons included the
fact the mother had a no-contact order prohibiting her from having contact with
child Da.M. after the mother pleaded guilty to child endangerment following an
incident in which the mother encouraged Da.M. to commit suicide and the child
followed through with an attempt.
Additionally, the mental-health and supervision needs of the children
exceed the mother’s ability to meet those needs. Although the mother has made
some progress, as she stresses in her petition on appeal, the fact remains the
mother still struggles to meet her own needs, even without the burden that is
inherent in parenting. The mother is simply incapable of meeting the needs of the
children at present.
Also, multiple children have experienced sexual abuse because of the
mother’s inability to properly supervise or protect them. Several children continue
to engage in sexually explicit behavior and self-harm. We agree with the following
observation made by the juvenile court: “[The mother] has not shown enough
progress in her own mental health, her ability to identify unsafe individuals or her
ability to set boundaries with her children to have any of these children return safely
to her care now.” The juvenile court correctly found the State met its burden of
establishing statutory grounds for the termination of the mother’s parental rights.
8
2. Additional Six Months
The mother also argues she should have been given an additional six
months to work toward reunification. See Iowa Code §§ 232.117(5), 232.104(2)(b)
(permitting the juvenile court to enter a permanency order giving the parents an
additional six months to work toward reunification if the juvenile court decides not
to terminate parental rights). The mother stresses she has done everything asked
of her in the last few months before the termination hearing. However, she
overlooks the fact that she and the family had been receiving intensive services
for nearly two years at the time of the termination hearing, she had already been
given six-month extensions with regard to two of the oldest children without the
children being able to be returned home, and her progress was still in its infancy
at the time of the termination hearing.
In order to warrant an extension of six months, the court must be 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.”
Id. § 232.104(2)(b). This involves attempting to predict what that future holds for
these children. To do that, “we look to the parents’ past performance because it
may indicate the quality of care the parent is capable of providing in the future.” In
re C.K., 558 N.W.2d 170, 172 (Iowa 1997). Here, the past performance of the
mother contributed directly or indirectly to physical and emotional harm to the
children. The marginal progress the mother has made does not convince us that
the need for removal will no longer exist after an additional six months. Therefore,
we agree with the juvenile court’s conclusion that the mother was not entitled to an
9
additional six months to work toward reunification when she had not made
sufficient progress in the previous period of approximately twenty-two months.
B. Father De.M.
Father De.M.’s rights to Av.M. were terminated pursuant to Iowa Code
section 232.116(1)(f), and his rights to the two youngest children were terminated
pursuant to Iowa Code section 232.116(1)(h). It is unclear what issues
Father De.M. is raising on appeal, as the statement of the issues in the two
divisions of his petition does not match the arguments that follow. Doing our best
to determine what issues this father raises, we conclude the father is claiming the
children could be returned to his care at the present time or he should have been
given an additional six months to work toward reunification.
1. Statutory Grounds
This father appears to concede, as the mother did, that the State proved the
first three elements under both section 232.116(1)(f) and (h). He focuses on the
fourth element under those paragraphs, arguing the juvenile court erred in
concluding the children could not be returned to his care at the time of the hearing.
The only argument he makes in support of his claim is to note the DHS has
determined the current residence of the mother and this father is “appropriate to
raise children.”
While it may be true that the mother and this father have corrected their
prior shortcomings regarding the condition of their home, that does not resolve the
issue at hand. There is much more to parenting than simply providing an
appropriate physical structure within which the children can reside. Neither the
mother nor this father has corrected the much more significant shortcomings in
10
their respective parenting abilities. This father had a mental-health crisis resulting
in him becoming suicidal not long before the termination hearing. Police were
called, as he threatened to jump from a bridge. While he has increased his mental-
health treatment efforts, he waited until late in the proceedings to put in such
efforts, as well over one year passed without noticeable effort. He has continued
to allow people to live in the house who have not been approved by the DHS.
Additionally, a few months before the termination hearing, this father struck the
mother in the face during an argument, demonstrating that past concerns of
domestic violence in the home have not been adequately addressed.
We agree with the juvenile court’s conclusion that the children could not be
returned to this father’s care at the time of the termination hearing.
2. Additional Six Months
Of course, the same standards discussed with respect to the mother’s
request for an additional six months to work toward reunification apply to this
father’s request, so they will not be repeated here. For many of the same reasons
the mother’s request was properly rejected, this father’s request also was properly
rejected.
The sole basis urged in support of this father’s request for an additional six
months is the uptick in his attendance at therapy sessions during the six-month
period leading up to the termination hearing. However, we are not persuaded this
uptick, which occurred more than one year after services and offers of services
were provided, will result in this father being in a position to resume custody of the
children within the additional six-month period. For example, the incidents of this
father making a suicidal threat to jump off a bridge and striking the mother in the
11
face, as described above, occurred during the height of his increased engagement
with therapy. While the father may be making some progress, we are not
convinced the progress shown demonstrates that sufficient progress will be made
in the next six months that would allow the children to be returned to his care.
Therefore, we agree with the juvenile court that this father should not have been
granted an additional six months to work toward reunification.
C. Father A.M.
Father A.M.’s parental rights to his children were terminated pursuant to
Iowa Code section 232.116(1)(f). He raises four issues.
1. Statutory Grounds
Like the mother and Father De.M., Father A.M. concedes the first three
elements of section 232.116(1)(f) were established by the State. He challenges
the fourth element, asserting his children could have been returned to him at the
time of the termination hearing.
On our de novo review, we agree with these findings by the juvenile court:
The children would be subjected to further adjudicatory harm under
Iowa Code [section] 232.2(6)(c)(2) and (n) if returned to [this father’s]
custody. [This father] had only been out of prison for one week at
the time of the termination hearing. He had been incarcerated for
roughly the past year, out of custody for the year prior, and also
incarcerated the year before. He has not established yet that he will
not engage in further violent acts or drug use in the community. He
has not established stability in the community. He has not been in a
caretaking role for these children in nearly four years. According to
his testimony, [he] has never been in a caretaking role with these
children while they have had the [mental-health] and behavioral
issues that they now have. He has not demonstrated that he can
provide for their special needs. [This father] and the children have
not addressed the reports that [this father] sexually abused them.
The children still associate [this father] with domestic abuse and
abuse of their mother.
12
These findings contribute to our conclusion that the juvenile court correctly
determined this father’s children could not be returned to his care at the time of the
termination hearing.
2. Best Interests
Review of termination of parental rights proceedings under Iowa Code
chapter 232 follows a three-step analysis, with each step having to be established
before moving to the next: (1) determine whether any ground for termination under
section 232.116(1) has been established; (2) determine whether the best-interest-
of-the-child framework set forth in section 232.116(2) supports termination of
parental rights; and (3) consider whether any exceptions in section 232.116(3)
apply to preclude termination of parental rights. In re M.W., 876 N.W.2d 212, 219–
20 (Iowa 2016). Having determined the State established a statutory ground for
termination, we now proceed to this father’s claim that termination was not in the
children’s best interests.
On this issue, the juvenile court again made factual findings with which we
agree:
Termination of [this father’s] parental rights is in the children’s best
interest. The children have lived in precarious, neglectful and
traumatic circumstances for years. [This father] has not either been
able or willing to alleviate these conditions. He has not exercised his
parental rights to the children for their benefit. It is true that, to
varying degrees, the children have a relationship with [this father].
However, their relationship to him is wrapped up in their reports of
sexual abuse and witnessing domestic abuse. There is no reason to
believe that [this father] will be able to provide a home for the children
or to even have a healthy relationship with the children in the near
future. It is in the children’s best interest for [this father’s] parental
rights to the children be terminated and for the children to move
forward to permanent, safe, care-giving.
13
This father’s claim that he has a stable home as a justification for finding
that it is not in the children’s best interests to terminate his parental rights is
unpersuasive, as it is not supported by the record. This father has been in and out
of prison over the past several years, demonstrating a tendency to continue to
engage in criminal behavior. We are not persuaded that his one-week stint living
with his mother after being paroled has established him as someone who has
turned over a new leaf and offers stability to his children. We agree with the
juvenile court’s conclusion that termination of this father’s parental rights is in the
children’s best interests.
3. Permissive Factors
Continuing with the three-step analysis, we turn to the final step. This father
asserts the juvenile court erred in terminating his parental rights over the objections
of the children. See Iowa Code § 232.116(3)(b) (permitting the court to deny a
termination request if “[t]he child is over ten years of age and objects to the
termination”). This father correctly acknowledges that the exception upon which
he relies is permissive, not mandatory, so the court is not required to apply the
exception even if it has been established. See A.S., 906 N.W.2d at 475. This
father also correctly acknowledges that not all of his children are eligible for the
over-ten-years-of-age provision. Still, he argues termination should not be granted
regarding any of his three children.
Even if all three of this father’s children were over the age of ten, we would
agree with the juvenile court that the exception should not be applied. This father
criticizes the juvenile court’s observation that the children did not articulate why
they did not want this father’s rights terminated and asserts the juvenile court was
14
merely speculating when it concluded the lack of specificity may be due to the
children’s mental health, age, and maturity. This father then engages in his own
speculation, asserting their objections are most likely the result of the difference
between the home environment they had been in at their mother’s compared to
that of this father.
In analyzing this issue, we are mindful that it is this father’s burden to
establish the permissive exception. See id. at 476. This includes not only proving
the facts of the exception (i.e., that a child over ten years of age objects), but
proving the exception warrants denial of termination. Id. (noting a relative had
legal custody of the child—satisfying the facts of the exception of section
232.116(3)(a)—but then refusing to apply the exception because the parent “failed
to meet her burden to establish that the grandparents’ temporary custody of the
child should preclude termination of [the parent’s] rights”). We conclude this father
has not met his burden. The lack of explanation of why the children objected
coupled with this father’s unstable past and long-term lack of involvement with the
children convinces us that the juvenile court was right to refuse to apply this
permissive exception.
4. Additional Six Months
Finally, this father asserts he should be given an additional six months to
work toward reunification. We find the juvenile court properly denied this request.
A prior six-month extension was already granted with regard to Na.M., even though
this father was incarcerated at the time, to give the mother additional time to work
toward reunification. This resulted in essentially a gift of additional time to this
father while the mother was given time to gain some parental footing. The fact that
15
much of the additional time received by this father was lost to his continued
incarceration does not compel the need for yet more time. While this father’s
incarceration in and of itself does not justify termination of his rights, the
incarceration cannot be used as justification for his lack of relationship with the
children. See In re B.H.A., 938 N.W.2d 227, 234 (Iowa 2020) (“[A] [parent] cannot
use his incarceration as a justification for his lack of a relationship with the child.”
(second alteration in original) (quoting In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993))).
Given this father’s in-and-out-of-prison history coupled with his lifestyle involving
drugs and violence that landed him in prison, we find no persuasive reason to
believe the children could be returned to his care if he were given an additional six
months, so we agree with the juvenile court that additional time was not warranted.
These children have waited too long for a stable home and should not be required
to wait any longer. See C.K., 558 N.W.2d at 175 (“The crucial days of childhood
cannot be suspended while parents experiment with ways to face up to their own
problems.” (quoting In re A.C., 415 N.W.2d 609, 613 (Iowa 1987)).
IV. Conclusion
After our de novo review, we affirm the termination of the appealing parents’
parental rights.
AFFIRMED ON ALL THREE APPEALS.