In the Interest of L.B., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 21-0569
Filed September 1, 2021

IN THE INTEREST OF L.B.,
Minor Child,

B.B., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Mary J.

Sokolovske, Judge.

A father appeals the termination of his parental rights. AFFIRMED.

Dean A. Fankhauser of Vriezelaar, Tigges, Edgington, Bottaro, Boden &

Lessmann, L.L.P., Sioux City, for appellant father.

Thomas J. Miller, Attorney General, and Michelle R. Becker, Assistant

Attorney General, for appellant State of Iowa.

Michelle M. Hynes of Juvenile Law Center, Sioux City, attorney and

guardian ad litem for minor child.

Considered by Bower, C.J., May, J., and Doyle, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
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MAY, Judge.

A father appeals the termination of his parental rights to his child, L.B. He

argues grounds for termination were not proven, DHS did not make reasonable

efforts to return the child home, and termination was not in the child’s best interest.

We affirm.

I. Background Facts and Prior Proceedings

L.B. was born in 2014. Her father was in federal custody from 2014 through

2020. For most of her life, L.B. lived with her mother. In 2019, though, the Iowa

Department of Human Services (DHS) learned the mother had assaulted the

maternal grandmother in the presence of L.B. The mother also tested positive for

methamphetamine. On May 11, 2019, L.B. was adjudicated as a child in need of

assistance (CINA) pursuant to Iowa Code section 232.2(6)(a), (b), (c)(2), and (n)

(2019). L.B. was placed with her maternal grandmother. DHS offered services,

but there was little progress. In November 2019, the parents stipulated “that

permanency for” L.B. “would be achieved by establishing a guardianship” with the

maternal grandmother. Also in November, the juvenile court entered a

permanency order “pursuant to said stipulation” appointing the maternal

grandmother as guardian and placing L.B. in her custody. In December, the

probate court issued letters of appointment to the maternal grandmother. The

juvenile court then entered an order closing the CINA proceeding.

Before long, there was conflict between the mother and the maternal

grandmother. The mother believed her rights were superior to those of a guardian.

On at least one occasion, the mother refused to return L.B. Local law enforcement

sided with the mother despite the grandmother’s status as the child’s lawful
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guardian. So the State obtained a removal order from the juvenile court. The State

also filed a second CINA petition and a petition to terminate the parental rights of

both parents. The juvenile court heard evidence on both. Ultimately, the court

entered an order terminating the mother’s parental rights, pursuant to Iowa Code

section 232.116(1)(f) and (l) (2020), and the father’s parental rights, pursuant to

section 232.116(1)(f) and (g). Because the court concluded termination was

appropriate, the court declined to adjudicate L.B. as CINA “for a second time.”

Only the father appeals.

II. Scope and Standard of Review

We generally review termination proceedings de novo. In re Z.P., 948

N.W.2d 518, 522 (Iowa 2020). “When the issue requires statutory interpretation,

however, we review for correction of errors at law.” In re J.C., 857 N.W.2d 495,

500 (Iowa 2014). “We will uphold an order terminating parental rights where there

is clear and convincing evidence of the statutory grounds for termination. Evidence

is clear and convincing when there is no serious or substantial doubt as to the

correctness of the conclusions of law drawn from the evidence.” In re T.S., 868

N.W.2d 425, 431 (Iowa Ct. App. 2015) (citation omitted).

We generally use a three-step analysis to review the termination of a

parent’s rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). We must determine:

(1) whether grounds for termination have been established, (2) whether

termination is in the child’s best interest, and (3) whether we should exercise any

of the permissive exceptions to termination. Id. at 472–73. “However, if a parent

does not challenge a step in our analysis, we need not address it.” In re J.P., No.
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19-1633, 2020 WL 110425, at *1 (Iowa Ct. App. Jan. 9, 2020). We also address

any other arguments raised by a parent.

III. Discussion

The juvenile court found grounds to terminate the father’s rights under Iowa

Code section 232.116(1)(f) and (g). Paragraph (f) permits termination if:

(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.

Iowa Code § 232.116(1)(f) (emphasis added).

Paragraph (g) permits termination if:

(1) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(2) The court has terminated parental rights pursuant to
section 232.117 with respect to another child who is a member of the
same family or a court of competent jurisdiction in another state has
entered an order involuntarily terminating parental rights with respect
to another child who is a member of the same family.
(3) There is clear and convincing evidence that the parent
continues to lack the ability or willingness to respond to services
which would correct the situation.

Id. § 232.116(1)(g) (emphasis added).

The father challenges the second element of paragraph (f) and the first

element of paragraph (g). These elements are identical. Each requires a finding

that “[t]he child has been adjudicated a child in need of assistance pursuant to

section 232.96.” Id. § 232.116(1)(f)(2), (g)(1).
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Following our de novo review, we conclude this requirement has been met.

It is undisputed that L.B. was adjudicated CINA in May 2019. So there is no doubt

she “has been adjudicated” CINA. See id. § 232.116(1)(f)(2), (g)(1).

But the father argues that, because the prior CINA proceeding has been

closed, the juvenile court could not rely on the May 2019 adjudication. The

attorney general agrees with the father. Together, they argue the juvenile court

needed to adjudicate L.B. a second time before paragraphs (f) or (g) could apply.

L.B.’s attorney disagrees. So does the county attorney. They both contend

that the single CINA adjudication in May 2019 was sufficient.

To decide which view is correct, we look to the words of the statute. In re

H.W., 961 N.W.2d 138, 141 (Iowa Ct. App. 2021) (“We find the meaning of chapter

232 in its words.”). When the legislature defines its words, “those definitions bind

us.” J.C., 857 N.W.2d at 500. Otherwise, we generally give a statute’s words “their

common, ordinary meaning in the context within which they are used.” H.W., 961

N.W.2d at 142–43 (citation omitted).

In paragraphs (f) and (g), the legislature chose to require a finding that “[t]he

child has been adjudicated a child in need of assistance pursuant to section

232.96.” Iowa Code § 232.116(1)(f)(2), (g)(1) (emphasis added). The “common,

ordinary meaning” of these words is that the child must have been adjudicated

CINA at some time before (“has been”) termination. But nothing in paragraphs (f)

or (g) requires the child to have been adjudicated “twice,” or “recently,” or “in a

case that remains open,” or “currently,” as the father and the attorney general
 6

suggest.1 Moreover, we are constitutionally prohibited from adding those words—

those new requirements—to the statute. Iowa Const. art. III., § 1. “The right to

legislate is in the legislature and not in us.” Ctr. Twp. Sch. Dist. by Rollins v.

Oakland Indep. Sch. Dist., 112 N.W.2d 665, 671 (Iowa 1962).

We move on to the father’s reasonable-efforts challenge. Iowa Code

section 232.102(7) requires DHS to “make every reasonable effort to return the

child to the child’s home as quickly as possible consistent with the best interests

of the child.” Applying this language here, we conclude the father’s reasonable-

efforts challenge fails for two reasons. First, we conclude that DHS made ample

efforts to reunite the child with the parents during the 2019 CINA case. Second,

we agree with L.B.’s attorney that section 232.102(7)

1 We respectfully disagree with the dissent’s argument concerning section
232.109. Section 232.109 does not alter the elements of section 232.116(1)(f)
or (g) or otherwise require the State to prove there was an open CINA case when
the termination petition was filed. Section 232.109 has a completely different
function. It prohibits courts from terminating parental rights under a different
chapter of the Iowa Code (“except under the provisions of this chapter”)—namely,
chapter 600A—if two events have occurred: (1) “the court has made an order”
adjudicating the child CINA; and (2) “the order is in force at the time a petition for
termination is filed.” See also Iowa Code § 600A.5(2) (“If a juvenile court has made
an order pertaining to a minor child under chapter 232, subchapter III, and that
order is still in force, the termination proceedings shall be conducted pursuant to
the provisions of chapter 232, subchapter IV.”). But this case does not involve a
termination under chapter 600A or any other chapter “except” chapter 232. So
section 232.109 is not relevant. See In re H.J.E., 359 N.W.2d 471, 474 (Iowa
1984) (relying on sections 232.109 and 600A.5(2) to note “[c]hapter 232 is the
exclusive means of termination when a CINA proceeding is in progress” and
conclude that a “chapter 600A termination was not available” because “the child
had been adjudicated a child in need of assistance, and the dispositional order had
not expired”); see also In re H.S., 805 N.W.2d 737, 740 n.3 (Iowa 2011) (noting
that, although “[c]hapter 600A . . . authorizes the filing of termination petitions by
parents,” if “the children have the status of CINA, any termination proceedings
must be conducted pursuant to chapter 232” (citing Iowa Code §§ 232.109,
600A.5(1)(a), (2); H.J.E., 359 N.W.2d at 474)).
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does not say to return the child to a parent’s home. Rather, it
provides that the child should be returned to the child’s home. It is
undisputed that there is a valid guardianship order in this case, which
means that the child’s home would be the home of the guardian, not
a parent. Therefore, the plain language of this statute would require
DHS to make efforts for L.B. to remain in the guardian’s home. What
[the father] is asking this court to do is to close its eyes and pretend
that the guardianship order does not exist. This court cannot and
should not do this.
Finally, we address the father’s contention that termination is not in L.B.’s

best interest. When making a best-interest determination, we “give primary

consideration to the child’s safety, to the best placement for furthering the long-

term nurturing and growth of the child, and to the physical, mental, and emotional

condition and needs of the child.” In re P.L., 778 N.W.2d 33, 40 (Iowa 2010)

(quoting Iowa Code § 232.116(2)). “It is well-settled law that we cannot deprive a

child of permanency after the State has proved a ground for termination under

section 232.116(1) by hoping someday a parent will learn to be a parent and be

able to provide a stable home for the child.” Id. at 41.

We agree with these findings by the juvenile court:

[L.B.’s] parents have not made any significant progress toward
reunification since the guardianship was established. The issues of
substance abuse by both parents . . . , domestic violence by [the
mother], mental health issues by [the mother] and lack of
involvement by [the father] over the years with [L.B.] still exist as
obstacles to [L.B.] being returned to their care. The court finds that
it is in the best interest of [L.B.] to terminate her parents’ parental
rights so that she can continue to enjoy the stability and permanency
of her current placement.

IV. Conclusion

We have considered all of the issues raised by the father, the attorney

general, the county attorney, and L.B.’s attorney. Following our consideration of
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those issues, and our de novo review of the record, we conclude the juvenile court

was correct to terminate the father’s parental rights.

AFFIRMED.

Doyle, S.J., concurs; Bower, C.J., dissents.
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BOWER, Chief Judge (dissenting).

I respectfully dissent. Iowa Code section 232.109 (2020) provides:

The juvenile court shall have exclusive jurisdiction over
proceedings under this chapter to terminate a parent-child
relationship and all parental rights with respect to a child. No such
termination shall be ordered except under the provisions of this
chapter if the court has made an order concerning the child pursuant
to the provisions of subchapter III [child-in-need-of-assistance
(CINA) proceedings] and the order is in force at the time a petition
for termination is filed.

(Emphasis added.) There was no CINA order in force at the time the petition to

terminate parental rights was filed here; therefore, the juvenile court was without

authority to terminate the father’s parental rights.

The guardian ad litem (GAL) argues L.B. “has been adjudicated” a CINA,

relying on the 2019 adjudication. She asserts the father is wrong in stating this

previous CINA adjudication was dismissed.

The guardianship here was established under the 2019 version of Iowa

Code section 232.104(8)(b). That provision specifically divests the juvenile court

of jurisdiction under chapter 232.2 But, borrowing from the county attorney’s

argument in the juvenile court, the GAL asserts that permanency order was not

terminated “regardless of the actual language used by the court.” But we cannot

disregard the actual language used by the court, and terminating the permanency

order is exactly what the court’s January 7, 2020 order did:

IT IS THEREFORE ORDERED that the permanency order
entered herein is hereby terminated, the child is discharged from the
jurisdiction of the juvenile court, the Iowa Department of Human

2Had the juvenile court placed the child in a guardianship under paragraph (a), it
would have retained jurisdiction. However, the court specifically invoked section
232.104(8)(b).
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Services [(DHS)] is relieved of any further duties of supervision in the
matter, counsel of record is hereby relieved of further duties of
representation herein, all hearings scheduled before the juvenile
court herein are canceled, and the juvenile court case(s) closed.

(Emphasis added.) The prior permanency order was terminated, and DHS was

relieved of duties. We cannot unring that bell.

No doubt, the guardianship is open. And as of January 1, 2020, Iowa Code

chapter 232D governs minor guardianships.3 See 2019 Iowa Acts ch. 56, §§ 44,

45 (applying the new minor guardianship act to all established and pending

guardianships). Section 232D.103 provides, “The juvenile court has exclusive

jurisdiction in a guardianship proceeding concerning a minor who is alleged to be

in need of a guardianship.” The guardianship is distinct from CINA proceedings.

Neither the county attorney nor DHS are parties to the guardianship. The filings in

3 The GAL observes:
[E]ffective January 1, 2020, all guardianships of minors pending in
probate court prior to that date, such as L.B.’s guardianship (which
was under the jurisdiction of the probate court as of November 25,
2019), are now under the jurisdiction of the juvenile court once again
under the new Chapter 232D. Therefore, the permanency order
which created the guardianship on November 25, 2019, remains in
full force and effect, despite the language of the court’s January 7,
2020, order.
The first sentence is true. The jurisdiction of the guardianship has been transferred
back to the juvenile court. Iowa Code § 232D.103 (“The juvenile court has
exclusive jurisdiction in a guardianship proceeding concerning a minor who is
alleged to be in need of a guardianship.”). The guardianship was entered pursuant
to the consent of the parents. See id. § 232D.203 (guardianship with parental
consent). The guardian has statutory duties. See id. § 232D.402. And termination
of a guardianship is governed by section 232D.503(2) (“The court shall terminate
a guardianship established pursuant to section 232D.203 if the court finds that the
basis for the guardianship set forth in section 232D.203 is not currently satisfied
unless the court finds that the termination of the guardianship would be harmful to
the minor and the minor’s interest in continuation of the guardianship outweighs
the interest of a parent of the minor in the termination of the guardianship.”).
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the guardianship are confidential, and the county attorney was required to obtain

the court’s permission to obtain the filings of the previous CINA.

The county attorney again invoked the jurisdiction of the juvenile court for

purposes of chapter 232 CINA proceedings by requesting a temporary removal

order under section 232.78 and filing a new CINA petition under section 232.87(1).

But the juvenile court had not ruled on the pending CINA petition. There was no

CINA “order in force at the time the termination petition [was] filed” as required by

Iowa Code section 232.109. I would conclude the child has not been adjudicated

a CINA for purposes of termination under section 232.116(1)(f)(2) or (g)(1). I would

reverse and remand for further proceedings.