A.B., A.C. and A.C.

IN THE SUPREME COURT OF IOWA
No. 20–1266

Submitted January 20, 2021—Filed April 2, 2021

IN THE INTEREST OF A.B., A.C., and A.C.,
Minor Children,

T.D., Mother, and S.W., Father,

Appellants.

Appeal from the Iowa District Court for Polk County, Susan Cox,

District Associate Judge.

A mother of three children appeals termination of her parental rights

and the father of one of the children appeals termination of his parental

rights. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Oxley, J., delivered the opinion of the court in which Christensen,

C.J., and Appel, Waterman, and Mansfield, JJ., joined. McDermott, J.,

filed an opinion concurring in part and dissenting in part in which

McDonald, J., joined.

Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for

appellant mother.

Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, for appellant

father of A.C.

Thomas J. Miller, Attorney General, Ellen Ramsey-Kacena,
Assistant Attorney General, and Kevin Brownell, Assistant County

Attorney, for appellee.
 2

Kimberly A. Graham of Graham Law Collaborative, Indianola,

attorney and guardian ad litem for minor children.
 3
OXLEY, Justice.
This appeal involves the termination of parental rights of a mother

to her three children and the termination of parental rights of the father of

one of the children. Mom timely appealed. Dad of one of the children filed

a timely notice of appeal but filed his petition on appeal two days late. He

asks us to grant him a delayed appeal and excuse the untimeliness of his

petition. As discussed below, we conclude we should recognize delayed

appeals in termination-of-parental-rights cases in certain limited

circumstances and grant the father’s application for delayed appeal. We

therefore consider whether the termination of parental rights was proper

as to both Mom and Dad.

At the outset, we note that although the guardian ad litem (GAL)

originally supported termination of parental rights, following the

termination hearing she changed her recommendation. On appeal, she

urges us to carefully scrutinize the record of this case and reverse the

judgment of the juvenile court. Upon our de novo review of the record, we

reverse termination as to Mom but not as to Dad.

I. Factual Background and Proceedings.

This case involves three children, all of whom have different

biological fathers and the same biological mother. We refer to the mother
as “Mom” throughout the case. From oldest to youngest, the children are

A.B., born in December 2012; A.C.1, born in April 2017; and A.C.2, born

in November 2018. A.B.’s father had minimal involvement in the case and

did not appeal. A.C.2’s father has also been minimally involved and also

did not appeal. He is an important figure in the background of the case

since before A.C.2 was born, and since he has the same initials as two of

the children, we will refer to him by his first name, Akoya. Dad is the
father of A.C.1, has been involved in the case, and appealed termination
 4

of his rights. We will refer to him as “Dad.” Notably, Mom and Dad also

share another daughter, A.W., who was born during the pendency of the

present proceedings and is the subject of other proceedings not here

involved.

A. Origins of DHS Involvement. Mom was brought to the

attention of the department of human services (DHS) on September 13,

2018. At the time, Mom was seven months pregnant with A.C.2, Akoya’s

child. Around 12:30 a.m., Mom parked at a Quik Trip and walked to

Budget Inn, where she “banged” on the door to Akoya and his then-
girlfriend’s hotel room. The girlfriend called the police because Mom was

violating a no-contact order the girlfriend had against Mom. Mom

explained her presence as an attempt to get money from Akoya and

admitted one-year-old A.C.1 was in her car nearby.

The police discovered A.C.1 alone in the car and removed her from

her mother’s care. Based on the incident, the police arrested Mom and

charged her with violation of a no-contact order, driving while barred, and

neglect of a dependent person. They contacted DHS personnel, who took

A.C.1 to a nearby hospital. Medical personnel noted A.C.1 was unwashed,

her clothes were dirty, and her diaper was filled with urine. Mom was

taken to jail and remained there until November 15. The court entered a

no-contact order between Mom and A.C.1, which Mom did not contest.

DHS investigated the case and discovered A.B., A.C.1’s older sibling,

was already staying at the maternal grandmother’s house. DHS placed

A.C.1 and A.B. in the maternal grandmother’s custody and filed a child in

need of assistance (CINA) petition for each child. DHS issued a founded

report of abuse against Mom based on failure to supervise, and both
children were adjudicated CINA.
 5

Mom pled guilty to child endangerment, acknowledging she had

placed A.C.1 in great danger. The court dismissed the no-contact order

between A.C.1 and Mom and gave Mom a suspended sentence and

probation. While in jail, Mom was diagnosed with depression. She also

acknowledged her relationship with Akoya was “very unhealthy.” Less

than a month after Mom’s release from jail, A.C.2 was born. DHS removed

A.C.2 from Mom’s care and placed him with his maternal grandmother,

who had custody of the older two children.

On December 24, Mom’s brother got into a physical altercation with
their sister at the maternal grandmother’s house that ended only when

their sister picked up a knife. All three of Mom’s children were in the home

at the time of the altercation, and at least A.B. witnessed the violence. As

a result, DHS removed the children from the maternal grandmother’s care

and placed the children into shelter care. A.C.2 was adjudicated CINA on

January 8, 2019. Around the same time, Mom moved into a domestic

violence shelter. The State placed A.C.2 with Mom.

B. History Following Removal from the Maternal Grandmother.

DHS began supervised visitation for Mom with the children in January

2019. At the request of DHS, Mom also began therapy at Children and

Families of Iowa. When visitation first commenced, A.B. was resistant. He

complained that he did not want to see his mother and would physically

act out. However, each time A.B. acted out, workers noted Mom handled

his behavior well by giving him space and winning him over so that by the

end of the visit he did not want to leave Mom.

In February, DHS approved semisupervised visits and overnight

visits between Mom and A.B. and A.C.1 at the shelter. Case notes from
the time indicate concerns over Mom’s homelessness, her time in jail, her

allowing unsafe people to be around her children, and her mental health.
 6

Yet they also discussed her consistent visits with the children, during

which she interacted appropriately and engaged the children in age-

appropriate activities. On February 19, the children were returned to Mom

at the shelter.

Mom got her own apartment in early April, and DHS removed the

requirement that she reside at the shelter to retain custody. However,

Mom got in two altercations with Akoya’s girlfriend, one on March 22 and

the second on April 29, after which she was again arrested. DHS

petitioned to remove the children from her care on May 1.
C. Placement of the Children in Foster Care. A.B. was placed

with his paternal grandmother while A.C.1 and A.C.2 were placed in

separate foster care placements, one in Grimes and the other in Ankeny.

This meant there was a significant distance between the placements.

Mom started dating Dad again in March, and he attended some

visits with Mom. Notes from visits during the May to June time period

document positive family interactions, including strong bonds between

Mom and her children. A.B.’s resistance to visits did not continue beyond

the first couple of months.

At the beginning of its involvement, DHS recommended Mom engage

in counseling services to address her mental health as well as her

relationship and domestic violence concerns. Mom began sessions with a

mental health counselor in January 2019 and consistently and

substantively engaged with her counselor throughout the case. In an

accountability letter Mom completed with her therapist in July 2019, she

acknowledged her relationship with Akoya was not healthy. She also

worked with her therapist on maintaining healthy relationships when she
began her relationship with Dad.
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Mom contends DHS ceased making reasonable efforts toward

reunification during the summer and fall of 2019. She compiled a list of

missed visits starting in July. For the most part, Mom’s calendar aligns

with DHS’s reports, though there is some disagreement on specific dates.

However, discrepancies become more significant in September and

October. These included cancelled visitation and additional services DHS

failed to provide.

On August 16, DHS requested drug tests from both Dad and Mom.

Dad tested positive for marijuana, amphetamines, and cocaine. Mom did
not complete the test until August 19, allegedly because she could not get

a ride. Mom tested positive only for marijuana and at a low level near the

test’s cutoff value. Based on this drug test and an assumption Mom would

have tested positive for cocaine on the 16th, DHS returned to fully

supervised visits starting August 19.

Following her positive drug screen in August 2019, DHS requested

Mom complete a substance abuse evaluation and participate in substance

abuse counseling. Mom completed the evaluation and was initially

screened to receive early intervention substance abuse services. She

regularly participated in substance abuse counseling, including frequent

random and observed drug screens. After Mom tested positive for THC in

October, her counselor modified her treatment level to extended outpatient

services in November. Mom submitted consistently negative drug screens

thereafter, with one exception in February 2020, when she tested positive

for cocaine. She engaged in services with her substance abuse counselor

throughout the case.

In November, Mom moved for a reasonable efforts hearing. She cited
frequently cancelled visits, lack of sibling visits and related transportation
 8

issues, and failure to move forward with less restrictive visits as reasons

DHS was not making reasonable efforts.

D. December Incident. On December 3, 2019, Dad and Mom got

into an altercation that led to each being arrested. The altercation began

because Mom had decided to end her relationship with Dad and asked him

to leave her apartment. He refused at first, and when he did agree to leave,

he insisted on taking an Xbox from the apartment. Mom told him he could

not take the Xbox because A.B. liked playing with it. This escalated into

physical fighting, apparently instigated by Dad. The fight ended when
Mom grabbed a knife.

Both parties were arrested for domestic abuse assault. Dad had

been driving a stolen vehicle, so he was also charged with operating a

vehicle without the owner’s consent. Dad was able to bond out of jail, but

Mom remained there for almost the entirety of December. The court

entered a no-contact order between Mom and Dad. Dad entered Alford1

pleas to disorderly conduct and operating a vehicle without the owner’s

consent.

The charges against Mom were dropped, and she was released from

jail on December 28. Despite the no-contact order, she called Dad to pick

her up. She also called Dad repeatedly while in jail, later explaining she

did so because she was bored and so she could ask Dad about the

children. She later admitted she should not have done so.

Mom resumed visits on January 3, 2020. Positive themes regarding

her parenting continued through January, February, and March.

Nonetheless, DHS moved to terminate Mom’s and both fathers’ parental

rights to the younger two children, A.C.1 and A.C.2, on February 7.

1See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).
 9

Mom gave birth to a new daughter, A.W., in April 2020. Dad is also

A.W.’s father.

E. COVID-19.

In March 2020, DHS changed its visitation protocols based on the

COVID-19 pandemic. Thereafter, visits were primarily by video calls.

These calls were difficult for all parties at times. When A.B. had trouble

focusing, Mom arranged to be physically present with him at the home of

his paternal grandmother. Mom also struggled at times with the video

chatting format, sometimes not fully engaging in the visits and leaving
workers to interact with the children. The video chats were shorter than

usual visits, but the caseworker explained that “[Mom] sacrificed that time

because she could see, for the well-being of her children, asking them to

stay on those Zoom visits was not appropriate.”

F. Dad’s Involvement. Dad was confirmed as A.C.1’s father in

January 2019, and DHS agreed to involve him in the case. During the

time the children were living with Mom from January 2019 through April

2019, Dad did not attend any visits with A.C.1. Following the children’s

removal in May, Dad contacted DHS seeking custody of A.C.1 and began

visits with her in mid-May 2019. Thereafter, since Dad and Mom were in

a relationship, both attended visits with A.C.1.

Following Dad’s August 16 positive drug test, DHS workers

requested he get a substance abuse evaluation and begin substance abuse

treatment. He did not follow through on this request.

Following the December 2019 domestic assault incident, Dad and

the maternal grandmother continued to have visitation with all the

children while Mom was in jail. Dad participated in the visits, but the
maternal grandmother did most of the parenting. Dad missed a scheduled

visit on January 3, 2020, and had sporadic visits through the spring,
 10

purportedly because his work schedule interfered. It does not appear he

participated in remote visits following the change to DHS protocols caused

by COVID-19.

Dad experienced difficulty finding stable housing throughout this

case. Apart from the time he lived with Mom, he lived with family members

and moved from place to place. Dad also refused to engage in therapy,

despite DHS’s requests to complete a mental health evaluation, and it

appears Dad never meaningfully engaged in substance abuse treatment.

G. Reasonable Efforts and Termination of Parental Rights. DHS
moved to terminate parental rights to the younger two children on

February 7, 2020. The court consolidated Mom’s November 2019 motion

for reasonable efforts with a permanency hearing on February 27. Mom

filed an amended motion for reasonable efforts prior to that hearing,

arguing a handful of new grounds.

At the hearing held on February 27, the parties learned Akoya

(A.C.2’s father) and his appointed attorney had a conflict. The court then

continued the hearing with respect to both A.C.1 and A.C.2. The court

decided to proceed on a permanency hearing for just A.B., combined with

the reasonable efforts hearing for A.B. alone, over Mom’s objection. The

trial was bifurcated into a reasonable efforts and permanency hearing for

A.B., and a later reasonable efforts and termination proceeding for A.B.,

A.C.1, and A.C.2. The second hearing did not take place until June 26.

The court waited to rule on any of the motions until after the second

hearing.

The Court Appointed Special Advocate (CASA) report submitted at

the February 2020 hearing is illuminating. The CASA noted A.C.1 was
well bonded to her foster family but appeared also bonded to Mom. The

CASA also acknowledged the strong bond between A.B. and Mom.
 11

However, she noted that A.B. had taken Mom’s arrest hard and that he

had been discussing the arrest as a problem A.B. and Mom shared. Yet,

“[Mom] recognized that this has been very hard on [A.B.]. Physically he is

doing well. . . . However, emotionally and behaviorally he struggles. He

has been waiting this whole time to come home.”

The CASA had discussed the domestic incident between Dad and

Mom with Mom, who acknowledged that she understood the real concern

was not her parenting but her relationships. Mom told the CASA she had

concluded she should not be in a relationship and should focus on her
children. The CASA noted, “[Mom] was tearful and showed genuine

remorse as she thought of her children and all that they have been

through.”

The CASA concluded Mom and Dad still appeared to be together

following Mom’s release from jail based on a photograph posted January

1, 2020, on Facebook of them kissing. Yet, the CASA also held the

“impression that [Mom] is trying to distance herself from [Dad] given that

he is at odds with the advice and recommendations of DHS.”

In her February 2020 recommendation, the CASA noted that “[t]here

is no problem with the bond between [Mom] and her children. [Mom]

clearly loves her children and wants to remain involved in their lives.”

However, the CASA stated, “Unfortunately the relationship drama

concerning [Akoya] that started this case in the first place just seems to

have continued with [Dad], with no end in sight given that [Mom] is now

expecting a second child with [Dad]”

In the CASA report for June 2020, the CASA scaled back many of

her prior concerns. She highlighted that Mom had a good bond with the
children and that she “loves, cares for, and is concerned about the

children. She shows a strong desire to be involved in their lives. She
 12

attends doctor[’]s visits. She pumps milk for and breastfeeds the new

baby.” However, the CASA was insistent in her belief that Mom and Dad

had continued a clandestine relationship. The reason she recommended

termination was, specifically, “[d]ue to [Mom] and [Dad] still [being]

together and choosing not to stop abusing drugs and/or seek treatment,”

despite the many negative drug screens Mom provided and her lengthy

participation in treatment. The report also noted that “[Mom] and [Dad]

would benefit from parent skills training to ensure they create a safe home

environment,” despite the extensive documentation of Mom’s participation
and excelling in such services.

Ultimately, the court denied Mom’s motion for reasonable efforts and

terminated the parental rights of all parents in a ruling issued on

September 20. Mom timely filed an appeal. Neither A.B.’s father nor

Akoya appealed. Dad timely filed a notice of appeal but did not timely file

his petition on appeal. The State moved to dismiss Dad’s petition.

II. Delayed Appeals in Termination-of-Parental-Rights Cases.

We start our legal analysis by determining whether we can hear the

father’s appeal. Dad’s attorney filed a timely notice of appeal on October

4, 2020. However, the petition on appeal was not filed until October 21,

seventeen days later and beyond the fifteen-day period required by Iowa

Rule of Appellate Procedure 6.201(1)(b). Dad’s attorney candidly admits

the late filing was her fault, explaining she was quarantined and working

from home because her daughter had tested positive for COVID-19 and

she failed to properly calendar the petition’s due date on her remote

calendar.

Because our rules preclude extensions for the filing period for
petitions on appeal, see Iowa R. App. P. 6.201(1)(b), Dad asks us to

recognize delayed appeals for cases involving the termination of parental
 13

rights, similar to those allowed in criminal cases. While Dad’s notice of

appeal was timely, our rules require the petition on appeal to also be timely

filed before the appeal is deemed properly perfected. See id. r. 6.102(1)(b)

(“An appeal in a termination-of-parental-rights . . . case will be dismissed

unless a petition on appeal is timely filed . . . .”); id. r. 6.201(3) (“If the

petition on appeal is not filed . . . within 15 days . . . , the supreme court

shall dismiss the appeal, and the clerk shall immediately issue

procedendo.”).

We have previously recognized “delayed appeals” in criminal cases
as an exception to our jurisdictional rules.2

Ordinarily the failure to take a criminal appeal within the
specified time limits requires dismissal for lack of jurisdiction.
We have, however, granted applications for a delayed direct
appeal where a defendant “has made a good faith effort to
perfect his appeal and has directed his attorney to proceed
therewith but due to a technical irregularity the appeal was
either filed late or notice was improperly served.”

2In the dissent’s view, failure to comply with rule 6.201(1)(b) is mandatory and

jurisdictional, which prevents our court from even proceeding. We have never addressed
whether the fifteen-day period for filing a petition on appeal contained in rule 6.201(1)(b)
is actually jurisdictional. Query whether that rule, not subject to legislative oversight as
is the time period for filing the notice of appeal in rule 6.101, is strictly jurisdictional. See
Iowa Code § 602.4201(3)(d) (2020) (requiring only rules of appellate procedure 6.101
through 6.105, 6.601 through 6.603, and 6.907 to proceed through the legislative council
rulemaking process contained in Iowa Code section 602.4202); Root v. Toney, 841 N.W.2d
83, 90 (Iowa 2013) (recognizing that the notice of appeal deadline contained in rule 6.101
is effectively statutory although it is contained in our rules because “[t]he rulemaking
requirements [in Iowa Code section 602.4201(3)] include submission of a proposed rule
change to the legislative council, which has the power to delay implementation to allow
the general assembly to enact a bill changing the rule [pursuant to Iowa Code section
602.4202]”).
Putting that issue aside, the dissent’s insistence that we cannot proceed with a
case where the appellant fails to comply with our appeal procedures ignores that the
criminal cases where we have recognized delayed appeals did so despite clear
jurisdictional infirmities. Further, the dissent’s legalistic position and reliance on the
views of dissenting United States Supreme Court justices about federal court jurisdiction
(where our rule would be considered a claims-processing rule rather than a jurisdictional
mandate in any event, see Hamer v. Neighborhood Hous. Servs. of Chi., 583 U.S. ___, ___,
138 S. Ct. 13, 21–22 (2017), does not sway our obligation to apply our own law.
 14

State v. Anderson, 308 N.W.2d 42, 46 (Iowa 1981) (citation omitted)

(quoting Cleesen v. State, 258 N.W.2d 330, 332 (Iowa 1977)). Having long

recognized delayed appeals in criminal cases, we see no principled reason

to not also recognize them in termination-of-parental rights cases in the

very limited circumstances we describe below.

In the context of criminal cases, we have allowed delayed appeals as

a remedial procedure that excuses a party’s failure to timely perfect their

appeal in the very limited situation “where it appears that state action or

other circumstances beyond appellant’s control have frustrated an
intention to appeal” and denial of the right to appeal implicates the

appellant’s constitutional rights. Swanson v. State, 406 N.W.2d 792, 792–

93 (Iowa 1987) (citing State v. Horsey, 180 N.W.2d 459, 460 (Iowa 1970),

and Ford v. State, 258 Iowa 137, 142, 138 N.W.2d 116, 119 (1965), as

recognizing availability of delayed appeals but denying application where

petitioner for postconviction relief, acting without advice of counsel,

argued only that he was “misinformed” about the time for filing a notice of

appeal). In State v. Anderson, we allowed a delayed appeal where

defendant’s appointed counsel failed to appeal an underlying judgment

until after resolution of a motion for new trial based on newly discovered

evidence, which made the appeal untimely as to the underlying judgment.

308 N.W.2d at 46. We reasoned that the rules in effect at the time put the

defendant in a difficult spot, concluding that “defendant has made a good

faith effort to appeal and at all times clearly intended to appeal.” Id. In

Horstman v. State, we allowed a delayed appeal where a criminal

defendant’s pro se communications expressing his desire to appeal and

requesting an appointed attorney were filed with the clerk within the time
for filing a notice of appeal but no notice of appeal had been filed. 210

N.W.2d 427, 429 (Iowa 1973).
 15

We made clear in Swanson v. State that a delayed appeal is not a

matter of discretion but “is limited to those instances where a valid due

process argument might be advanced should the right of appeal be

denied.” 406 N.W.2d at 793. We recognized the same federal

constitutional considerations were “potentially applicable in some civil

settings.” Id. at 792 n.1.

Prior to July 1, 2001, appeals from termination orders followed the

same procedural rules that applied to all appeals. See Iowa Code

§ 232.133(2) (1999). However, the general assembly amended that section
effective July 1, 2001, providing: “[t]he supreme court may prescribe rules

to expedite the resolution of appeals from final orders entered pursuant to

section 232.117.” 2001 Iowa Acts ch. 117, § 1 (codified at Iowa Code

§ 232.133(2) (2003)). The impetus for the amendment was an effort at the

federal level to encourage prompt resolution of termination proceedings

and accomplish permanency for children as soon as feasible. In re C.M.,

652 N.W.2d 204, 208–09 (Iowa 2002). While family preservation was, and

remains, an important goal of child welfare services, the overriding goal is

the best interests of the child. Prolonging the period during which social

services agencies attempt to either reunify a family or terminate a parent’s

rights can be detrimental to children, for whom permanency is critical to

their best interests. Thus, the focus at the federal level shifted from family

reunification to “time-limited family reunification services.” Id. at 208

(quoting 42 U.S.C. § 629(a)(7) (2000 & Supp. II 2002)). We, as a state,

have followed suit. See In re J.H., 952 N.W.2d 157, 170 (Iowa 2020) (“While

we recognize the law requires a ‘full measure of patience with troubled

parents who attempt to remedy a lack of parenting skills,’ Iowa has built
this patience into the statutory scheme of Iowa Code chapter 232.”

(quoting In re Z.P., 948 N.W.2d 518, 523 (Iowa 2020) (per curiam))); see
 16

also In re M.D., 921 N.W.2d 229, 233 (Iowa 2018) (“The focus of child

welfare in this country, and Iowa, is now on permanency, and

continuances of court hearings to accommodate parents might offend this

goal.”).

The general assembly left to us whether to expedite the appeal

process, and if so, the specific rules to implement. We took the general

assembly’s heed and enacted rules specific to appeals from Iowa Code

chapter 232 orders. See Iowa R. App. P. 6.101(1), 6.102(1), 6.201–.205.

Now, instead of a thirty-day period to file a notice of appeal followed by the
opportunity for full briefing after the transcript of the proceedings is

available, an appeal from a termination order must be filed within fifteen

days of the order, a petition on appeal must be filed fifteen days after that,

and the response, if any, must follow within another fifteen days. Id. r.

6.101(1)(a), 6.201(1)(b), 6.202(2). Under this expedited process, an appeal

is ready for the court within forty-five days of the final order of termination.

Previously, such appeals took months to reach an appellate court and

would likely still be waiting for the transcript forty-five days after the order

of termination. This expedited process makes sense in light of our focus

on the best interests of the child, since the parties—and importantly the

children—are in a state of limbo while the wheels of justice grind through

the appeal process. See In re A.C., 415 N.W.2d 609, 613 (Iowa 1987)

(“Neither will childhood await the wanderings of judicial process.”).

Nonetheless, we cannot short shrift the importance of the appeal

process to a parent whose parental rights have been terminated. The

“status of parents’ interest in the care, custody, and control of their

children . . . [is] ‘perhaps the oldest of the fundamental liberty interests
recognized by [the United States Supreme] Court.’ ” Santi v. Santi, 633

N.W.2d 312, 317 (Iowa 2001) (quoting Troxel v. Granville, 530 U.S. 57, 65–
 17

66, 120 S. Ct. 2054, 2060 (2000)). Thus, the termination of parental

rights, including the appeal process, clearly implicates protected liberty

interests for parents to which due process protections attach. See In re

C.M., 652 N.W.2d at 211 (addressing due process and equal protection

challenges to appeal process limiting appellant to streamlined petition on

appeal rather than full briefing and concluding parent’s rights were

adequately protected by the expedited procedure); see also In re M.D., 921

N.W.2d at 235–36 (holding due process entitled incarcerated parent to

participate in the entire termination proceeding); In re A.M.H., 516 N.W.2d
867, 870 (Iowa 1994) (“It is not disputed that state intervention to

terminate the relationship between [a parent] and [the] child must be

accomplished by procedures meeting the requisites of the Due Process

Clause.” (alteration in original) (quoting Lassiter v. Dep’t of Soc. Servs., 452

U.S. 18, 37, 101 S. Ct. 2153, 2165 (1981) (Blackmun, J., dissenting))).

Indeed, some may consider termination of a parent’s rights a more

significant intrusion than the liberty rights at stake in criminal

proceedings. Cf. In re A.M.H., 516 N.W.2d at 870 (“The right of a parent to

companionship, care, custody, and management of his or her children has

been recognized as ‘far more precious . . . than property rights . . . ,’ and

more significant and priceless than ‘liberties which derive merely from

shifting economic arrangements.’ ” (omissions in original) (citations

omitted) (first quoting May v. Anderson, 345 U.S. 528, 533, 73 S. Ct. 840,

843 (1953), and then quoting Stanley v. Illinois, 405 U.S. 645, 651, 92

S. Ct. 1208, 1212 (1972))).

One of the important safeguards of a parent’s due process rights is

the assistance of counsel. See In re M.D., 921 N.W.2d at 239 (Christensen,
J., concurring in part and dissenting in part) (recognizing “the importance

of the presence of counsel as a safeguard for the parent’s due process
 18

rights”). By statute, parents are entitled to appointed counsel in

termination proceedings. See Iowa Code § 232.113 (2020). But what

happens when a parent’s counsel fails to perfect the parent’s appeal and

the appeal is summarily dismissed? Unless a delayed appeal is recognized,

that parent has no further recourse; the termination is final.

This brings us back to the expedited appeal process for termination

orders. We have upheld the expedited process, including both the fifteen-

day period and the use of the streamlined petition instead of a full-blown

brief, against equal protection challenges. See In re L.M., 654 N.W.2d 502,
505–06 (Iowa 2002) (rejecting challenge to fifteen-day period for filing

petition on appeal); In re C.M., 652 N.W.2d at 211 (rejecting challenge to

use of petition on appeal rather than full briefing process). The limited

petition on appeal procedure also satisfies a parent’s due process rights.

See In re C.M., 652 N.W.2d at 211. In short, the expedited appeal process

is “narrowly tailored to address the State’s compelling interest” in

providing permanency. Id.

Even though the rules themselves pass constitutional muster, there

still may be circumstances for allowing a delayed appeal. As noted, if an

attorney fails to timely file the notice of appeal or timely complete the

petition on appeal, under our rules the parent lacks any recourse. There

is no corollary to the postconviction relief mechanism used in criminal

cases for the termination of parental rights. Given the clear liberty

interests implicated in termination proceedings, we see no reasoned basis

for refusing to allow a delayed appeal similar to what we have long

recognized in criminal cases. Indeed, the delayed process may be even

more important in this context, where a parent whose rights have been
terminated has no mechanism for challenging the termination other than

through an appeal.
 19

That said, we believe the delayed appeal standard should be strictly

circumscribed. We adopt the prerequisites we have applied in criminal

cases and allow a delayed appeal only where the parent clearly intended

to appeal and the failure to timely perfect the appeal was outside of the

parent’s control. We also consider the countervailing interests involved,

as there is much more at stake than the parent’s rights. Children have an

interest in finality so they can move forward with a permanency plan.

Thus, even when the delayed appeal prerequisites are met, we caution that

an untimely appeal should be allowed to proceed only if the resulting delay
is no more than negligible.3

Here, the juvenile court’s termination order was entered on

September 20, Dad timely filed his notice of appeal on October 4, but his

petition on appeal was filed two days late on October 21. Dad’s intent to

appeal is obvious from the timely notice, and his counsel has taken the

blame for not properly calendaring the deadline due to required

quarantining and working from home after her daughter tested positive for

COVID-19.4 We conclude these facts meet the prerequisites for allowing a

delayed appeal. We also note that the two-day delay did not unnecessarily

3While the dissent believes allowing delayed appeals under any circumstances
whatsoever provides “weak medicine with nasty side effects,” we note that in calendar
year 2020, our clerk’s office dismissed only six termination-of-parental rights cases for
filing a late notice of appeal and twenty-three for missing the deadline for filing a petition
on appeal. The strict limits we place on allowing delayed appeals strikes the proper
balance among the significant interests of all parties involved.
4That is not to say an attorney’s inadvertent failure to properly calendar the
deadline for a petition on appeal will entitle her client to a delayed appeal. Such would
effectively write our “no extensions” provision out of the rules, which we have no intention
of doing. Rather, we recognize the extenuating circumstances in this case involving the
heightened quarantining practices required by the coronavirus, particularly in the
October 2020 timeframe involved here, during which Iowa experienced some of its highest
transmission rates, hospitalizations, and deaths. See, e.g., Ryan J. Foley, Iowa’s COVID-
19 Death Rate Among Highest in US, Report Says, AP News (Oct. 23, 2020),
https://apnews.com/article/virus-outbreak-public-health-death-rates-iowa-iowa-city-
fa8a42c8c40ab3d36034a851e922c9ad [https://perma.cc/KMA4-MY4E].
 20

prolong the appeal process. We do not downplay the importance of our

expedited rules. But just as recognizing delayed appeals in criminal cases

did not open any floodgates for untimely appeals, we have no reason to

believe recognizing delayed appeals in termination cases will be any

different. We simply cannot let the significant rights at stake be

outweighed by the negligible delay involved here.

III. Standard of Review.

We review termination of parental rights de novo. In re M.W., 876

N.W.2d 212, 219 (Iowa 2016). We are not bound by the factual findings of
the juvenile court, though we give them respectful consideration,

particularly regarding credibility determinations. Id.

The State must prove termination was proper by clear and

convincing evidence. Id. “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.” ’ ” Id. (alteration in original)

(quoting In re D.W., 791 N.W.2d 703, 706 (Iowa 2010)).

IV. Analysis.

Mom appeals both the adverse finding on reasonable efforts and the

termination of her parental rights to all three children. Dad appeals the

termination of his parental rights to A.C.1. Mom and Dad’s parental rights

to A.C.1 were terminated under Iowa Code section 232.116(1)(h), requiring

the State to prove:

(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.
 21
(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.

Mom’s rights to A.C.2 were terminated pursuant to the same section.

Mom’s parental rights to A.B. were terminated pursuant to section

232.116(1)(f), which varies from subsection (h) only in that it applies to

children age four or older and requires twelve months out of the parent’s

custody instead of six months. The only factor either parent contests is

subsection (4)—that there is clear and convincing evidence the child could

not be returned to the parent’s custody at the present time.
“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 any ground for termination under

section 232.116(1) has been established.” Id. If so, we next “determine

whether the best-interest framework as laid out in section 232.116(2)

supports the termination of parental rights.” Id. at 219–20. If we conclude

section 232.116(2) supports termination, “we consider whether any

exceptions in section 232.116(3) apply to preclude termination of parental

rights.” Id. at 220.

A. Termination of Mom’s Parental Rights. The juvenile court

terminated Mom’s parental rights on the basis that the children could not

be returned to her custody at the time of the adjudication. Iowa Code

§ 232.116(1)(f), (h). The State had the burden to prove the statutory

prerequisites by clear and convincing evidence. Significantly, the GAL and

Mom both urge us to carefully scrutinize the record independently of the

juvenile court, arguing there exists a lack of record support for the court’s

findings.
Determining whether the State met its burden requires a look at the

reasons DHS advanced for termination. DHS identified two things
 22

preventing return of the children to Mom: sobriety and domestic violence.

Before we address those grounds, however, we address the parties’

concern that the juvenile court did not fairly consider the record evidence.

1. Concerns about some of the juvenile court’s findings. Our review

of the record raises concerns about some of the juvenile court’s findings.

Some of those concerns might have been avoided if the juvenile court had

drafted its ninety-nine-page ruling more tightly and succinctly.

We first note the court made at least two clearly inaccurate fact

findings, which seem to have colored its view. First, in some early orders
in this case, the juvenile court states that Mom was part of a previous case

with DHS that resulted in a termination of her parental rights to other

children. This is incorrect. Second, the juvenile court incorrectly declared

Mom to be the subject of a second founded child abuse report on January

28, 2019. As Mom and the GAL explain, the report did not involve Mom.

The only founded report against her was the initial September 18, 2018

report that brought the family to DHS’s attention.

The court also relied heavily on Mom’s criminal history, most of

which centered on her relationship with Akoya and occurred prior to the

September 2018 incident that brought Mom to DHS’s attention. The

emphasis on that criminal history fails to recognize that Mom successfully

removed Akoya from her life.

Additionally, despite the length of the juvenile court’s order, it

appears the juvenile court routinely failed to acknowledge positive reports

about Mom contained in the record. For example, the juvenile court did

not discuss the positive evaluations provided by her substance abuse

counselor, focusing only on missed appointments and positive test results.
The juvenile court also did not acknowledge the positive comments

from Mom’s mental health therapist. The district court’s characterization
 23

of the therapist’s June 24, 2020 letter discussing Mom’s progress reflects

the district court’s dismissiveness. In the letter, the therapist noted Mom

was always respectful, eager to learn, and discussed her emotions openly.

After explaining the focus of their sessions, including domestic violence

education, healthy relationships, boundaries, and accountability, the

therapist noted Mom reported greater understanding of her triggers,

impulsivity, and emotional reactions and how to cope with those responses

to make healthy decisions. The therapist then noted, “[Mom] reports that

she has ended relationships with significant others with whom her
relationship was unhealthy. She reports that she is now single.” Yet the

juvenile court characterized the therapist’s letter, in its entirety, as follows:

On June 24, 2020, the mother’s therapist provided an
update. She began working with the mother 18 months ago.
The mother participated in 36 session[s]. In March, 2020, the
therapist offered to meet with the mother through telehealth.
The mother declined. At the end of May, the mother finally
agreed to resume therapy through telehealth.

The mother told the therapist “she is now single.” This
statement did not have any other context in the report.

The “other context” in the report was a clear reference to Mom’s efforts at

creating healthy relationships, a primary concern for DHS’s involvement.

Although the juvenile court highlighted the difficulties Mom had
with video visits with the children, it did not credit Mom for meeting with

A.B. in person or acknowledge the worker’s belief that she cut the visits

short in the best interests of the children. The juvenile court also

concluded Mom lacked insight into what caused this case, contrary to both

of her therapists’ letters and the CASA report.

In its discussion of Mom’s parenting, the juvenile court declared,

“DHS noted [Family Safety, Risk, and Permanency (FSRP)]’s parenting
concerns for the mother. These included her ‘ability to time manage,
 24

needing prompt[ing] to change diapers, and needing some assistance from

FSRP to help with the children.’ ” We find this conclusion significantly at

odds with the record evidence. These concerns were only noted in a

handful of reports, to which Mom objected as containing inaccuracies. It

is also contrary to testimony offered at the July 2020 hearing by the FSRP

worker involved in the case since November 2019 that “parenting . . . has

never been an issue with this particular mom.”

Further, the juvenile court never discussed positive reports about

Mom’s parenting, despite the vast majority of reports about her parenting
being positive. One example is the Safe Care parenting program. The

juvenile court’s order noted only that Mom completed the program without

mentioning the evaluation, which noted she “was prepared for sessions

and showed a thorough understanding of the material,” was “very engaged

. . . and open to learning new skills,” and overall “excelled” in the program.

With respect to the specific negative reports relied on by the juvenile

court, Mom contended those reports were unreliable, identifying

discrepancies between her records of visits and those submitted by the

department. The juvenile court rejected her claim, declaring it did “not

believe the mother’s claim ‘visits were often cancelled or rescheduled.’ ”

Our careful review of the record, however, reveals there is some truth to

Mom’s contention.

DHS workers confirmed there were problems with cancellations and

rescheduling. For instance, in its termination report, DHS noted, “There

are some discrepancies between what FSRP reports and [Mom] reports.

The team discussed visits . . . and adding more time and making up missed

visits. FSRP continues to work on making up time.” (emphasis added).
These are references to visits cancelled by FSRP workers. Similar

comments appear in many documents in the record.
 25

Moreover, a careful look at the record reveals a time period from

approximately August 2019 until a new caseworker took over in November

2019 when the reports contained inaccuracies.5

It is also notable that these particular reports, already suspect, are

the only evidence in the record that criticize Mom’s parenting. No evidence

from either before or after that period notes a need to prompt Mom to

change a diaper. No other evidence suggests she spoke harshly to her

children. There are enough errors in this group of reports to cast doubt

on their content. Yet, the juvenile court relied on those specific reports,
emphasizing them above other complimentary reports.

These discrepancies indicate the juvenile court relied on an

inaccurate view of the record. We turn to the reasons advanced by DHS

for termination to determine whether the evidence supports the juvenile

court’s ruling.

2. Sobriety. The juvenile court and the CASA concluded substance

abuse supported termination of Mom’s parental rights. However, a finding

that Mom has an issue with sobriety affecting her ability to parent is not

supported upon examination of the record.

The records reveal the following substance use: Mom’s first positive

test for marijuana on August 19, 2019, positive tests for THC between

October 9 through November 19, a single positive result for cocaine in

February 2020, and a single positive result for alcohol in May. It must be

5A clear example is the report of a team meeting in the chronology of family
contacts on September 20, complete with details of the meeting, when all other record
evidence indicates the meeting happened on October 15. In another instance, the
description of the interaction is clearly a copy-and-paste: October 3 and October 4 contain
the exact same narrative, including that Mom had texted requesting to meet at
McDonald’s because her electricity was out and that Mom forgot diapers, so her friend
had to bring them. We do not intend to disparage the worker; her father passed away
during this time period, and a few months later, she left the social work profession. We
make these observations in an effort to reconcile discrepancies in the record.
 26

noted however, that Mom provided numerous negative tests prior to,

between, and after, these finite positive results. The results cannot be

considered in a vacuum.

After Mom’s positive drug screen for marijuana in August 2019, the

workers on her case switched her from semisupervised to fully-supervised

visitation in August. Mom denied she had a substance abuse problem but

engaged in substance abuse counseling, including providing regular drug

screens through her counselor. Substance abuse was never identified as

a primary concern as to Mom’s ability to safely parent her children.
At trial, Mom explained her August positive test result as exposure

to secondhand smoke, which her substance abuse counselor admitted to

DHS workers was possible. She explained her October and November

positive screens as the result of using vape pens to smoke nicotine that

had previously been used with THC and testified she stopped using vape

pens altogether after her substance abuse counselor informed her that

using the same vape pens would still contain THC. Significantly, she did

not test positive for any substances at any of multiple drug tests prior to

August 2019 and never tested positive for THC again after the one-month

period between October and November.

The juvenile court acknowledged neither Mom’s vape pen

explanation, including her counselor’s apparent acceptance of the

explanation, nor the tacit admission contained within it. It also did not,

despite drawing conclusions based upon the individual results of Mom’s

urine screens, acknowledge the complexities involved in evaluating the

meaning of the results of positive marijuana urine screens. A full review

of the literature is beyond the scope of this case, but we acknowledge for
our purposes that each positive result does not necessarily indicate new

use. See Marilyn A. Huestis, Cannabis, in Principles of Forensic Toxicology
 27

336–38 (Barry Levine ed., 4th ed. 2013) [hereinafter Huestis] (discussing

the difficulty in determining when use occurred based on a urine screen

indicating a positive THC result). We caution that interpreting the

meaning of a positive THC result involves many complexities, and that

what individual results indicate about use, including when or whether new

use has occurred, may not be clear without exploring those complexities,

if even then.6 Courts should consider these complexities before drawing

any inferences surrounding individual results. On close examination of

the record, it does not appear Mom has an ongoing problem with
marijuana abuse. Cf. In re M.S., 889 N.W.2d 675, 682 (Iowa Ct. App. 2016)

(en banc) (“It is a mistake to . . . draw an inference of recent and significant

use unsupported by medical literature and unsupported by the laboratory

actually conducting the test and reporting the results.”).

With respect to the positive cocaine test in February 2020, we note

that throughout this case, Mom provided one positive cocaine result. She

tested consistently enough that additional use would likely have been

detected. Moreover, she has cooperated with her substance abuse

counselor and has seemingly admitted cocaine use to her. This appears,

from the counselor’s letter, to be a coping mechanism to deal with trauma.

It is notable the positive result occurred just days before the February

2020 hearing. It is also quite telling that DHS allowed Mom to pump

breastmilk for A.W. despite the prior positive cocaine test. The juvenile

court acknowledged DHS discussed this with Mom and she assured them

the milk would be clean. DHS clearly was not concerned about an ongoing

issue with cocaine use.

6In fact, in some circumstances, THC levels can increase despite a person not
using anew, varying with the hydration level of the individual. Huestis at 337.
 28

To the extent Mom missed appointments with her substance abuse

counselor, those absences correlated with the birth of A.W. and the switch

to videoconferencing in April and May due to COVID-19. Mom’s counselor

reported that she had reengaged in regular sessions and was making

progress toward her goals. In a June 2020 report, the counselor also noted

that Mom was engaging in increasingly healthy coping mechanisms and

had begun addressing the connection between trauma and substance

abuse. The counselor noted, “Based on sessions with [Mom], she is in the

action stage of change for substance use.” The counselor concluded Mom
had “been an engaged and willing participant in working on these goals

during sessions.”

We do not make light of the substance abuse that appears in this

record. It is troubling that Mom would use cocaine and try to hide it. It

is especially troubling that she would use cocaine while she was pregnant.

However, it appears Mom has addressed and continues to address this

issue. While the record indicates Mom should continue engaging with her

substance abuse counselor, her substance abuse does not support

terminating her parental rights.

Finally, and crucially, there is no allegation in this record that Mom’s

substance use interfered with her ability to parent safely. See In re M.S.,

889 N.W.2d at 682 (noting termination of parental rights on the basis of

substance abuse requires a nexus between the substance use and

adjudicatory harm to the child); cf. In re J.S., 846 N.W.2d 36, 42–43 (Iowa

2014) (holding mother’s use of methamphetamine, in and of itself, did not

mean children were in imminent likelihood of abuse or neglect). No

concerns appear in the record suggesting she was ever high or intoxicated
in the children’s presence, while she was caring for them, or at any point

when she was in contact with workers on the case. We emphasize the
 29

importance of Mom continuing to be honest regarding her use and working

with her counselor to address what triggers her use. However, on our de

novo review, we conclude substance abuse does not support termination

of Mom’s parental rights.

3. Domestic violence. From the start of this case, Mom has

consistently and substantively engaged in mental health counseling

services to address her relationship and domestic violence concerns. In

an accountability letter Mom completed with her therapist in July 2019,

she acknowledged her relationship with Akoya was not healthy and vowed
to only interact with him through third parties and only as necessary when

related to their child. She has maintained that vow.

Mom was arrested for a domestic altercation with Dad in December

2019. It is clear the State supported termination based primarily on its

belief that Mom and Dad were engaged in a clandestine relationship. The

CASA’s support for termination also centered on Mom’s relationship with

Dad.

The CASA and the juvenile court characterize the December 2019

incident between Mom and Dad as a return to the type of toxic relationship

Mom had with Akoya. However, we do not view the December fight, or

Mom’s relationship with Dad, to be similar to the one she had with Akoya.

We agree with the GAL that viewing the relationships this way erases the

progress Mom has made.

At the start of this case, Mom was volatile. She sought out conflict

with Akoya’s girlfriends, resulting in entry of a no-contact order and

multiple jail stays. It appears Akoya was abusive and likely played more

of a role in those conflicts than is immediately obvious from the record.
However, Mom ultimately took responsibility for her choices. Following

her April 2019 violation of the no-contact order, no further incidents
 30

involving Akoya or his girlfriends occurred. We credit Mom’s ability to

enforce her separation from Akoya.

Further, Mom engaged in therapy directly addressing domestic

violence and bad patterns in relationships. According to her therapist, she

engaged actively and made good progress on understanding what caused

the issues that led to DHS’s involvement in this case. The CASA report

also indicated she understood that DHS’s remaining concern in February

2020 involved her romantic relationships and that she had ended her

relationship with Dad to address that concern.
The incident that led to Mom’s December arrest resulted from her

decision to break up with Dad specifically because it would be better for

the children. She asked Dad to leave, and his response caused the fight

that led to both their arrests. Even the juvenile court’s recitation of this

incident puts the blame primarily on Dad, noting he became upset when

Mom dropped the Xbox, breaking it, and he subsequently pushed her to

the ground and put her into a headlock. We note the criminal charges

against Mom were dismissed, while Dad pleaded guilty to a lesser charge.

This is not the same type of conduct that led to Mom’s troubling

behavior at the start of the case. There is a difference between seeking out

conflict, even if provoked, which comprised much of Mom’s relationship

with Akoya and his girlfriends, and defending oneself. We acknowledge

this is a problematic incident. However, it does not mean Mom has made

no progress or, more importantly, that the children cannot be returned to

her. The CASA report and Mom’s success at removing Akoya from her life

demonstrate she has the insight necessary to address this problem.

While Mom has had some contact with Dad, the State has failed to
present clear and convincing evidence that she is in the harmful and

clandestine relationship suggested by DHS. DHS presented only three
 31

snippets of evidence: a Facebook picture from New Years’ Eve 2019, Dad’s

presence in the parking lot of Mom’s apartment two days after she gave

birth to his daughter, and an uncorroborated comment by A.B. during a

videoconference visit—when he was not physically present with Mom—

that Dad had cooked spaghetti for supper. This evidence presents only

implications that do not amount to clear and convincing evidence that

Mom continued in an inappropriate relationship with Dad. Thus, the

conclusion that Mom cannot have her children in her custody because of

a continued relationship with Dad does not withstand scrutiny.
Importantly, Mom’s parenting has never seriously been questioned,

apart from the initial founded report of abuse. She accepted responsibility

for putting A.C.1 in danger when she left her in the car, and she has

worked on addressing the issues that led to that decision. Mom has taken

advantage of available opportunities to better her parenting skills,

including resources she proactively sought out. Throughout this case,

Mom has been consistent in her commitment to her children. There is no

serious contention that the children would be unsafe in her custody, so

long as she avoids negative relationships.

A final note on Mom’s argument that DHS failed to provide

reasonable efforts toward reunification. The challenge for lack of efforts

started in July 2019, and Mom moved for a hearing to require such efforts

in November 2019 on the basis of a lack of visits and failure to move

forward with less restricted visits given her progress. The motion was not

heard until February 2020 for A.B., June for A.C.1 and A.C.2, and no

decision was reached until September, nearly a year after the first motion.

Our disposition leaves the CINA action in place, and we trust DHS will
make reasonable efforts moving forward, as appropriate.
 32

We conclude the juvenile court erred in finding the children could

not be returned to Mom’s custody—the required fourth element for a

termination under section 232.116(1)(f) and subsection (h). We therefore

reverse the termination of Mom’s parental rights as to A.B., A.C.1, and

A.C.2.

B. Termination of Dad’s Parental Rights. We next consider

whether the juvenile court erred by terminating Dad’s parental rights to

A.C.1. In this analysis, we consider the three-part test from Iowa Code

section 232.116, including whether any grounds for termination were
proven, the best interests of the child, and whether any exceptions to save

the parent–child relationship apply. In re M.W., 876 N.W.2d at 219–20.

1. Grounds for termination under section 232.116(1). Dad’s parental

rights to A.C.1 were terminated on the same grounds as Mom’s: that A.C.1

could not be placed in his custody at the time of the hearing. Dad

participated in this case sporadically. When the new caseworker started,

she noted she would have concerns if Dad was expected to be a primary

caretaker to the children due to his ambivalence. He did not take

advantage of those services available to him and did not take full

advantage of visitation with A.C.1.

Dad’s drug test results and substance abuse evaluation indicate he

likely has a substance abuse problem, and he did not meaningfully

address that problem during the pendency of this case. Dad initially

blamed a lack of insurance for his failure to participate in substance abuse

services. When he eventually did undergo an evaluation, he did not

provide its results to the department or the court until the termination

hearing. This report apparently concluded he was at high risk of
substance abuse, but Dad still denied having a substance abuse problem.

Finally, Dad reported he started therapy toward the end of this case, but
 33

he failed to provide any evidence to support the identity of a therapist or

the types of services provided.

Although Dad cooperated in this case on a basic level, he failed to

fully engage with DHS recommendations and address the problems DHS

identified. His lack of efforts stands in stark contrast to Mom, who

attempted to comply with all court-ordered services. Moreover, it does not

appear he would be able to provide stable housing for A.C.1. On our de

novo review of the record, we conclude A.C.1 could not be returned to

Dad’s custody at the time of adjudication and the State has proved the
grounds for termination.

2. The best interests of the child under section 232.116(2). Once we

conclude DHS has proven a ground for termination of parental rights, we

next ask “whether the termination of parental rights would be in the best

interest of the child under section 232.116(2).” In re M.W., 876 N.W.2d at

224.

When we consider whether parental rights should be
terminated, we “shall 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.” . . . For
integration, we look at how long the children have been living
with the foster family, how continuity would affect the
children, and the preference of the children if they are capable
of expressing a preference.

Id. (quoting Iowa Code § 232.116(2)). Additionally, in evaluating the child’s

best interest we note

[i]t 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. (alteration in original) (quoting In re A.M., 843 N.W.2d 100, 112 (Iowa

2014)).
 34

Dad made minimal efforts during the year and a half he was involved

in the CINA case, and he fails to identify how additional time will change

the fact that A.C.1 cannot be placed in his custody. He lacked stable

housing throughout, and he continues to deny a substance abuse problem

despite the recent assessment identifying him at high risk for substance

abuse. The juvenile court properly found that the A.C.1’s best interests

support terminating Dad’s parental rights.

3. Exceptions in section 232.116(3). Finally, we must “determine

whether any exceptions in section 232.116(3) apply to preclude the
termination.” Id. at 225. Of the statutory exceptions, subsection (c) is the

only potentially relevant subsection. It allows a court to deny termination

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.” Iowa Code § 232.116(3)(c).

Although Dad has participated in this case and formed some bond

with A.C.1, it is not clear terminating his parental rights to her would be

more detrimental to her than giving her permanency. The record reveals

the new caseworker expressed concern over Dad’s ambivalence toward the

children, including A.C.1. Moreover, A.C.1 is quite young, indicating she

has had less time to form a bond that may be affected by termination. We

conclude there is not clear and convincing evidence termination would be

detrimental to A.C.1 due to the closeness of her relationship with Dad.

V. Conclusion.

We reverse the juvenile court’s termination of Mom’s parental rights

to A.B., A.C.1, and A.C.2. We grant Dad’s application for delayed appeal

and affirm the juvenile court’s termination of Dad’s parental rights as to
A.C.1. We remand for further proceedings consistent with this opinion.
 35

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Christensen, C.J., and Appel, Waterman, and Mansfield, JJ., join

this opinion. McDermott, J., files an opinion concurring in part and

dissenting in part in which McDonald, J., joins.
 36

#20–1266, In re A.B., A.C., and A.C.

McDERMOTT, Justice (concurring in part and dissenting in part).

The majority today loosens lug nuts on the wheels of justice. By

permitting ad hoc exceptions to our unambiguous appeal deadlines, the

court veers from rules that have long provided clarity and predictability for

courts and court participants alike. The father admits he failed to file his

petition on appeal within the deadline. His appeal should be dismissed.

Iowa Rule of Appellate Procedure 6.101(1) specifies the deadline to

file a notice of appeal in termination-of-parental-rights cases. It states:

A notice of appeal from a final order or judgment entered in
Iowa Code chapter 232 termination-of-parental-rights or
child-in-need-of-assistance proceedings must be filed within
15 days after the filing of the order or judgment.

Iowa R. App. P. 6.101(1)(a).

After appellants file a notice of appeal, they next must file a “petition

on appeal,” which is “a streamlined, fill-in-the-blanks form, designed to be

completed in an expeditious manner.” In re L.M., 654 N.W.2d 502, 506

(Iowa 2002). The petition on appeal form includes, among other things, a

statement of material facts and legal issues presented for appeal. See Iowa

R. App. P. 6.201(1)(d), 6.1401 — Form 5. Rule 6.201(1) specifies the
deadline to file a petition on appeal in termination-of-parental-rights

cases:

A petition on appeal must be filed with the clerk of the
supreme court within 15 days after the filing of the notice of
appeal with the clerk of the district court or within 15 days
after the filing of an order granting an interlocutory appeal.
The time for filing a petition on appeal shall not be extended.

Iowa R. App. P. 6.201(1)(b). If the phrase “must be filed” within fifteen

days wasn’t clear enough, the rule adds a sentence that erases any doubt
about a party’s ability to file an untimely petition on appeal: “The time for
 37

filing a petition on appeal shall not be extended.” Id. This language

delivers not some aspirational suggestion but an unequivocal command.

This is the deadline the father missed; on this point there is no dispute.

Rule 6.201(3) is singularly devoted to what happens if the petition

on appeal is not filed on time:

Consequence of failure to file a timely petition on appeal. If the
petition on appeal is not filed with the clerk of the supreme
court within 15 days after the filing of a notice of appeal or
within 15 days after the filing of an order granting an
interlocutory appeal, the supreme court shall dismiss the
appeal, and the clerk shall immediately issue procedendo.

One would be hard pressed to find any ambiguity or verbal

vagueness in these rules or deadlines—or the consequences in failing to

comply with them. The majority, for its part, doesn’t attempt to justify its

holding permitting the father’s late-filed petition on appeal in this case

based on some lack of clarity or interpretative disagreement in how to

construe these rules.

Instead, the majority relies on a concern that enforcing our clear

rules might violate a party’s due process rights. Termination-of-parental-

rights cases unquestionably implicate due process rights based on the

parent’s protected liberty or property interest in the care, custody, and

control of a child. Troxel v. Granville, 530 U.S. 57, 65–66, 120 S. Ct. 2054,

2060 (2000); In re C.M., 652 N.W.2d 204, 212–13 (Iowa 2002). But in

response to due process challenges to these rules, we’ve long held that

these deadlines do not violate parents’ due process rights. In re C.M., 652

N.W.2d at 212–13. “The State has a compelling interest in finalizing

permanent placements for children as soon as possible,” and we’ve held

that the fifteen-day deadline for filing a notice of appeal “is narrowly
tailored to accomplish that objective.” In re L.M., 654 N.W.2d at 505–06
 38

(finding no constitutional infirmity in the deadlines in response to an equal

protection challenge).

Appeal deadlines are “mandatory and jurisdictional.” Root v. Toney,

841 N.W.2d 83, 87 (Iowa 2013); see also Lundberg v. Lundberg, 169

N.W.2d 815, 817 (Iowa 1969), overruled in art on other grounds by Sykes

v. Iowa Power & Light Co., 263 N.W.2d 551, 553 (Iowa 1978). That means

that we, as an appellate court, do not have jurisdiction to hear the case

when parties miss their filing deadlines. “Where an appellant is late in

filing, by as little as one day, we are without jurisdiction to consider the
appeal.” In re Marriage of Mantz, 266 N.W.2d 758, 759 (Iowa 1978). Due

process itself makes jurisdictional requirements mandatory. “Due process

protects the defendant’s right not to be coerced except by lawful judicial

power.” J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 877, 131 S. Ct.

2780, 2785 (2011). Procedural rules “serve a definite purpose and are

more than technical; they have substance, in that they lay down definite

rules which are essential in court proceedings so that those involved may

know what may and may not be done and confusion, even chaos, may be

avoided.” MC Holdings, L.L.C. v. Davis Cnty. Bd. of Rev., 830 N.W.2d 325,

332 (Iowa 2013) (Waterman, J., dissenting) (quoting BHC Co. v. Bd. of Rev.,

351 N.W.2d 523, 526 (Iowa 1984)).

The majority notes that defendants in criminal cases have a

constitutional right to effective assistance of counsel and that parents in

termination-of-parental-rights cases also have a right to effective

assistance of legal counsel. Drawing on this similarity, the majority invites

us to consider that accused defendants have a remedy to pursue

ineffective-assistance-of-counsel claims for late-filed appeals in criminal
cases (through state postconviction relief actions or federal actions under

28 U.S.C. § 2255), while parents have no similar avenues to remedy
 39

ineffective assistance for late-filed appeals in termination cases. The

majority suggests permitting delayed appeals in some termination-of-

parental-rights cases might address this disparity.

But the solution to a claim of ineffective assistance in a termination

case can’t be to pretend our jurisdictional rules aren’t mandatory and

suspend their enforcement extemporaneously. Again, a blown

jurisdictional deadline in a termination-of-parental-rights case prevents

our court from proceeding with the appeal. The rule tolerates no exceptions

for cases in which a party alleges ineffective assistance of counsel. See
Iowa R. App. P. 6.201(3) (“If the petition on appeal is not filed with the clerk

of the supreme court within 15 days . . . the supreme court shall dismiss

the appeal, and the clerk shall immediately issue procedendo.”). The clear

instruction that the court “shall dismiss” should not be reinterpreted to

mean “shall not dismiss if the delay is negligible and the client can blame

the lawyer.”

And even if relaxed enforcement of these jurisdictional deadlines

offered a defensible prescription, it’s weak medicine with nasty side effects.

The majority touts looking past blown deadlines as a fix for ineffective

assistance, but only if the period of delay is “no more than negligible.” So

more egregious ineffective assistance (where the lateness isn’t what a

future court deems “no more than negligible”) still has no remedy, but less

egregious ineffective assistance (where the deadlines are missed by a lesser

duration) will earn a pass? The more ineffective the counsel, the less

protection the majority’s remedy offers. And in this case, the majority

doesn’t even require ineffective assistance, only that “the failure to timely

perfect the appeal was outside of the parent’s control.” Whatever the
appropriate antidote might be to address the problem of ineffective
 40

assistance in termination-of-parental-rights cases, this is not it. The side

effects of the majority’s tonic will far outstrip its curative potency.

Dismissing an appeal because of a missed deadline can seem like a

harsh consequence. But like statutes of limitations, appeal deadlines

“necessarily operate harshly and arbitrarily with respect to individuals

who fall just on the other side of them.” United States v. Locke, 471 U.S.

84, 101, 105 S. Ct. 1785, 1796 (1985). No one disputes that procedural

rules “are a necessary part of an orderly system of justice.” Houston v.

Lack, 487 U.S. 266, 283, 108 S. Ct. 2379, 2389 (1988) (Scalia, J.,
dissenting) (quoting Thompson v. Immigr. & Naturalization Serv., 375 U.S.

384, 390, 84 S. Ct. 397, 400 (1964) (Clark, J., dissenting), overruled by

Bowles v. Russell, 551 U.S. 205, 214, 127 S. Ct. 2360, 2366 (2007)). Yet

their efficacy “depends upon the willingness of the courts to enforce them

according to their terms.” Id. Like a reservation that’s taken but not held,

a deadline that’s promulgated but not enforced neglects the most

important part: the enforcing.

In 2001, the legislature authorized the court to provide shorter

appeal deadlines “to expedite the resolution of appeals” in termination-of-

parental-rights cases. 2001 Iowa Acts ch. 117, § 1, (codified at Iowa Code

§ 232.133(2) (2003)). Almost immediately, we established the expedited

fifteen-day deadlines in our appellate rules. In the nearly two decades

since, we have demanded that parties comply with these deadlines. See,

e.g., In re J.H., 952 N.W.2d 157, 165 (Iowa 2020) (dismissing terminated

mother’s appeal “because it was untimely”). If we now believe that fifteen

days is insufficient time for parties to comply, we should make changes

through our customary and longstanding rule amendment process, not by
announcing ad hoc exceptions in our judicial opinions. “Such

dispensations in the long run actually produce mischievous results,
 41

undermining the certainty of the rules and causing confusion among the

lower courts and the bar.” Houston, 487 U.S. at 283, 108 S. Ct. at 2389

(1988). As Judge Easterbrook put the point: “If the rules are good, enforce

them; if the rules are bad[,] change them; there’s little point in having good

rules but winking at noncompliance.” Diamonds.net LLC v. Idex Online,

Ltd., 254 F.R.D. 475, 477 n.2 (S.D.N.Y. 2008) (quoting Howard J.

Bashman, 20 Questions for Circuit Judge Frank H. Easterbrook, Above the

Law: How Appealing (Aug. 2, 2004), https://howappealing.abovethe

law.com/20q/2004_08_01_20q-appellateblog_archive/ [https://
perma.cc/U4YG-DKSB].

The court can’t simply recite that we permitted delayed appeals in

criminal cases and start cutting down the nets. The legislature’s rationale

in authorizing expedited appeals in termination-of-parental-rights cases—

a rationale embraced in our appellate rules’ fifteen-day deadlines—also

provides a basis for distinguishing the criminal cases that the majority

relies on in loosening enforcement of the deadlines. From a procedural

standpoint, in criminal cases the interests of the criminal defendant are

principally before the court. By contrast, in termination-of-parental-rights

cases, the interests of the child are principally at issue. Iowa Code

§ 232.116(2) (2020) (stating that in considering whether to terminate

parental rights “the court shall 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” (emphasis added)); see also In re M.W., 876 N.W.2d

212, 224 (Iowa 2016). The expedited deadlines promote the child’s best

interests by achieving permanency in a more timely fashion and “reducing
the time all must wait in litigation limbo until their case is finally resolved.”

In re R.K., 649 N.W.2d 18, 21 (Iowa Ct. App. 2002) (en banc) (per curiam).
 42

Termination proceedings impact children, parents, foster families,

guardians, and other caretakers involved in pursuing secure final

placements for the children. In delayed termination-of-parental-rights

cases, the number of people prejudiced, and the nature and severity of

that prejudice, will almost always exceed that of the criminal cases the

majority relies on. The importance of expeditious finality exists for all

court matters, but perhaps in no case—as the legislature implicitly

recognized in section 232.116(2) in authorizing expedited appeals—more

so than termination-of-parental-rights matters.
The majority acknowledges “the countervailing interests involved” in

deciding whether to relax the deadlines and specifically the “interest in

finality” to move forward with a permanency plan. The majority then

cautions (as mentioned above) that “an untimely appeal should be allowed

to proceed only if the resulting delay is no more than negligible.” This nods

to the importance of the deadlines while simultaneously eviscerating them.

Weighing the “countervailing” interests of the child in finality often will be

intertwined with a merits inquiry. On this point too, today’s ruling

introduces complexity where before there was none.

Considering the long-established jurisdictional grounds requiring us

to dismiss late-filed appeals, we need not go into detail about the many

practical problems that today’s holding will spawn in future cases. An

entire body of case law will need to develop around if and when “a valid

due process argument might be advanced” by the parent if the appeal is

dismissed, how long of a delay is “negligible” enough (Two days? Two

weeks? Two months?) to satisfy the majority’s tastes, and what reasons

for missed deadlines “outside of the parent’s control” will clear the bar. Of
course, enforcing unambiguous deadlines permits courts and parties to
 43

avoid such ad hoc determinations in the first place. Today’s ruling

undermines our own objectives.

Appeal deadlines aren’t qualified or aspirational; they’re “absolute.”

United States v. Kwai Fun Wong, 575 U.S. 402, 423, 135 S. Ct. 1625, 1640,

(2015) (Alito, J., dissenting). The deadline in Rule 6.201(1)(b) that the

father missed in this case imposes a limit on the courts’ jurisdiction that

we should not take upon ourselves to extend. I concur in the majority’s

opinion reversing the juvenile court’s termination of the mother’s parental

rights to A.B., A.C.1, and A.C.2. But I respectfully dissent from the
majority’s grant of the father’s untimely appeal and would dismiss his

appeal for lack of jurisdiction.

McDonald, J., joins this concurrence in part and dissent in part.