IN THE COURT OF APPEALS OF IOWA
No. 21-1470
Filed February 16, 2022
IN THE INTEREST OF A.B.,
Minor Child,
S.G., Mother,
Appellant,
B.B., Father,
Appellant.
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Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
A mother and a father appeal the termination of their parental rights to a
child born in 2011. AFFIRMED ON BOTH APPEALS.
Teresa M. Pope of Branstad & Olson Law Office, Des Moines, for appellant
mother.
Alexandra M. Nelissen of Advocate Law, PLCC, Clive, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee.
Nicole Garbis Nolan, Youth Law Center, Des Moines, attorney and guardian
ad litem for minor child.
Considered by Vaitheswaran, P.J., and Tabor and May, JJ.
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VAITHESWARAN, Presiding Judge.
A mother and a father separately appeal the termination of their parental
rights to a child born in 2011. Both parents contend (1) the State failed to prove
the grounds for termination; (2) termination was not in the child’s best interests;
and (3) the district court should not have ordered termination in light of their bond
with the child.1 The mother additionally argues the district court “erred in granting
the State’s motion for modification of disposition.” The father additionally asserts
the district court should have placed the child in a guardianship with the child’s
grandmother.
I. Grounds for Termination
The district court terminated parental rights on several grounds including
Iowa Code section 232.116(1)(f) (2021), which requires proof of four elements
including proof the child cannot be returned to parental custody. We will address
that ground alone. See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012) (“When the
juvenile court terminates parental rights on more than one statutory ground, we
may affirm the juvenile court’s order on any ground we find supported by the
record.”).
The mother had a long history of alcohol abuse. She started drinking at the
age of fourteen and was thirty-four at the time of the termination hearing. Her
involvement with the department of human services began in 2014 and continued
on and off through the inception of the underlying child-in-need-of-assistance
1 The parents refer to the bond in the context of their best-interests argument, but
it is a separate statutory issue. See Iowa Code § 232.116(3)(c).
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action in 2019.2 The State alleged she consumed alcohol to excess and got into
a fight with a friend, accidentally injuring one of her children in the process. The
child that is the subject of this appeal was removed and was placed with his
paternal grandmother under department supervision. The parties stipulated to
continued removal. The district court later adjudicated the child in need of
assistance. A year later, the court granted the mother a six-month extension to
facilitate reunification. The child was returned to her care.
The reunification lasted thirty-seven days. The mother relapsed, and the
child was again moved to the home of his paternal grandmother. Disturbed by
certain aspects of the grandmother’s care, the State filed a motion to modify the
child’s placement. Following an evidentiary hearing, the district court granted the
motion, and the department transferred the child from her home to foster care.
The department employee overseeing the case testified at the modification-
of-placement hearing and again at the termination hearing. She expressed
concern with the mother’s “ongoing consumption” of alcohol, her “insight into her
drinking,” her “honesty,” and, specifically, “whether or not she’s really been sober
the entire case given things that continue to be reported regarding her drinking.”
She asserted the child was not “safe in [the mother’s] care given her drinking” and
“this poor little kid has really just been kind of drug around for five years, and it’s
not fair to him.” She later reaffirmed her position, citing “the time that this family
has been involved” with the department and the “continued drinking.”
2 A prior child-in-need-of-assistance action was closed just two months earlier.
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The mother conceded the child could not be returned to her at the time of
the termination hearing. She testified, “I still have myself to work on. I’m still freshly
new to sobriety again. I still have issues that I need to work on. You know, I can’t
take care of anyone else if I can’t take care of myself first.”
Turning to the father, the department reported he began using marijuana at
the age of thirteen and continued using the drug “a couple times a month.” He
tested positive for marijuana after the child-in-need-of-assistance petition was
filed. He failed to appear for the adjudication hearing, and his attorney stated he
did not know why. He also failed to appear for the termination hearing even after
his attorney attempted to reach him.3 He initially did not participate in supervised
visits but later attended ninety-minute weekly sessions. The department employee
opined that the father had “done virtually nothing to attempt reunification.” She
testified he did not “follow through” with the recommendations contained in a
substance-abuse evaluation even after she “reached out to him several times.”
The father’s ability to safely parent the child was called into question at the
time of the child’s removal from the grandmother for placement in foster care. The
father was present and the department employee observed him with “bloodshot,
watery eyes,” leading to “concerns . . . that he was under the influence.” She also
noted that “[h]e was very aggressively yelling, cussing, [and] angry.”
3 The father initially told his attorney he intended to contest the termination petition
and he planned to appear on the second day of the termination hearing. He later
informed the attorney he did not intend to appear on either day. When the second
day arrived, the father asked if he could listen in by phone. All concerned agreed
that was acceptable as long as he testified in person. The father did not testify.
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On our de novo review, we conclude the State proved the child could not
be returned to either parent.
II. Best Interests
Termination must be in the child’s best interests. Iowa Code § 232.116(2).
“[T]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.” In re P.L., 778
N.W.2d 33, 39 (Iowa 2010) (citing Iowa Code § 232.116(2)).
With respect to the mother, the department employee testified “the safety
concern when there’s that pattern of return and relapse, return and relapse” is that
the child is essentially “parentless.” She opined returning the child to the mother
was not in the child’s best interest because “[u]p until recently,” the child was not
“successful at completing an entire year in the same school” and “the uncertainty
of knowing what forever is going to look like for him with the remove/return kind of
pattern we’ve seen in the six years is hard for him.”
As for the father, the employee testified she had no additional knowledge of
his participation in reunification services other than the weekly supervised visits.
His minimal reunification efforts, together with the employee’s description of his
demeanor and conduct at the time of the transfer, lead us to conclude reunification
with the father would have jeopardized the child’s safety.
On our de novo review, we agree with the district court that termination of
parental rights was in the child’s best interests.
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III. Exception to Termination
The parents argue their parental rights should not have been terminated
given the bond they shared with the child. See Iowa Code § 232.116(1)(c). The
service provider who supervised visits testified the mother and child’s interactions
were “warm” and “funny” and the father was “engaged” and was “[v]ery hands-on.”
That said, neither parent was in a position to safely parent the child on a full-time
basis. We conclude the district court acted appropriately in declining to grant this
exception to termination.
IV. Modification of Disposition
The mother argues the district court should not have removed the child from
her care in February 2021. The State responds that the issue is moot. We agree.
See In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994) (“[W]e need not decide the
validity of the ex parte removal order or the order entered after hearing because
this issue is moot. . . . Any error committed in granting the temporary ex parte
order cannot now be remedied. We cannot go back in time and restore custody
based on alleged errors in the initial removal order.”).
V. Guardianship
The father contends the district court should have “chosen to place this child
in the guardianship of the grandmother rather than terminating [his] rights.”
Creation of a guardianship is statutorily authorized. See Iowa §§ 232.104(2)(d)(1),
232.117(5). But it “is not a legally preferable alternative to termination.” In re A.S.,
906 N.W.2d 467, 477 (Iowa 2018) (quoting In re B.T., 894 N.W.2d 29, 32 (Iowa Ct.
App. 2017)). The district court stated the grandmother was “inappropriate[] as a
placement,” citing her lack of cooperation at the time of the child’s transfer to foster
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care. In an earlier order, the court explicated other concerns with the
grandmother’s supervision, including her willingness to leave the child with people
who were not approved by the department. The record supports the court’s
findings. In addition, the child was uncertain about his preference, neither the
father nor the paternal grandmother testified in support of a guardianship, and the
State and guardian ad litem recommended termination. Id. On our de novo review,
we conclude the creation of a guardianship with the grandmother in lieu of
terminating the father’s parental rights was not a viable option.
We affirm the district court’s thorough order terminating parental rights to
this child.
AFFIRMED ON BOTH APPEALS.