IN THE COURT OF APPEALS OF IOWA
No. 17-0407
Filed June 7, 2017
IN THE INTEREST OF A.C. and A.C.,
Minor Children,
M.C., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Stephen A. Owen,
District Associate Judge.
A mother appeals the termination of her parental rights to her children.
AFFIRMED.
Kimberly A. Voss-Orr of Law Office of Kimberly A. Voss-Orr, Ames, for
appellant mother.
Thomas J. Miller, Attorney General, and Gretchen Witte Kraemer, Special
Assistant Attorney General, for appellee State.
Lucas J. Richardson of Terrill, Richardson, Hostetter & Madson Law
Offices, Ames, guardian ad litem for minor children.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
2
DOYLE, Judge.
A mother appeals the termination of her parental rights to her children. On
our de novo review, we give weight to the juvenile court’s fact findings, although
they are not binding on us. See In re A.B., 815 N.W.2d 764, 773 (Iowa 2012).
The evidence shows the mother and her husband were involved in “one of
the most egregious cases” of sexual abuse that her probation officer had seen.
At best, the mother failed to protect her own children and two other children from
the abuse. At worst, as the juvenile court found, she was “present [during the
abuse] and also encouraged it.”1 As a result of the abuse, the mother entered an
Alford2 plea to two class “C” felony charges of lascivious acts with a child and two
counts of the aggravated misdemeanor of child endangerment. She is a
registered sex offender, on lifetime parole, and prohibited from having contact
with minor children other than her own.
The juvenile court terminated the mother’s parental rights pursuant to Iowa
Code section 232.116(1)(h) (2016). The mother does not dispute that the State
proved the grounds for termination under this section. See In re P.L., 778
N.W.2d 33, 40 (Iowa 2010) (noting that the court need not analyze whether the
grounds for termination exist under section 232.116(1) where the parent does not
dispute the existence of the grounds for termination). Instead, she argues the
exceptions to termination set forth in Iowa Code section 232.116(3)(c) (stating
1
The juvenile court made this finding after taking judicial notice of the file in the criminal
case against the mother. The criminal file was not included in the record transmitted to
this court.
2
An Alford plea allows a defendant to maintain innocence while acknowledging that the
State has enough evidence to win a conviction. See North Carolina v. Alford, 400 U.S.
25, 37 (1970).
3
the court need not terminate parental rights if clear and convincing evidence
shows termination would be detrimental to the child due to the closeness of the
parent-child relationship) and (e) (providing the court need not terminate if the
parent is absent due to commitment to any institution) should be applied. These
provisions are permissive, not mandatory. See In re C.L.H., 500 N.W.2d 449,
454 (Iowa Ct. App. 1993), overruled on other grounds by P.L., 778 N.W.2d at 39–
40. The decision to apply one of the statutory exceptions to termination is
discretionary and depends on the child’s best interests under the circumstances
of that particular case. See id.
We decline to apply the exceptions to the termination statute set forth in
section 232.116(3)(c). Although the mother has a bond with the children, the
evidence shows the children’s bond to their pre-adoptive foster parents, whom
they refer to as “mommy and daddy,” is stronger. The older child has been in the
foster parents’ care since before one year of age and the younger child has been
in their care since birth. The risk of harm the children would face if the mother’s
parental rights remain intact substantially outweighs any harm that would befall
the children by breaking the parent-child bond. For the same reason, we decline
to apply the exception to termination found in section 232.116(3)(e).
The mother requests an additional six months to prove she can safely
care for the children. This extension of time is not in the children’s best interests
considering the risk the mother presents to the children’s safety and their need
for permanency. See In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J.,
concurring specially) (noting the “defining elements in a child’s best interest” are
the child’s safety and “need for a permanent home”); In re D.J.R., 454 N.W.2d
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838, 845 (Iowa 1990) (“We have long recognized that the best interests of a child
are often not served by requiring the child to stay in ‘parentless limbo.’” (citation
omitted)). “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.” P.L., 778 N.W.2d at 41; see also In re A.C., 415 N.W.2d
609, 613-14 (Iowa 1987) (noting it is important to fix child custody quickly to
avoid parentless limbo and holding that once the statutory time limits for
termination have been met, it is unnecessary to take any more from the
children’s future).
The mother also challenges the termination order on the grounds her due
process rights were violated. First, she argues her exercise of her Fifth
Amendment right in the criminal case pending against her infringed on her due
process rights in the child-in-need-of-assistance (CINA) and termination-of-
parental-rights (TPR) cases. However, the mother never raised this issue before
the juvenile court, and therefore, any error is not preserved for our review. 3 See
In re K.C., 660 N.W.2d 29, 38 (Iowa 2003). The mother also claims the
intervenor’s “lack of effective counsel and the court’s refusal to grant a
continuance amounted to a denial of due process,” but she cannot stand in place
of the intervenor and argue her rights. See In re K.R., 737 N.W.2d 321, 323
3
Even if we were to ignore the error-preservation issue, the mother has failed to cite any
legal authority for her claim or clarify her argument beyond the conclusory statement that
her exercise of her Fifth Amendment right “amounted to a restriction on her due process
rights in her CINA and TPR cases.” Her failure to make a specific argument on appeal
waives error. See In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (“A broad, all
encompassing argument is insufficient to identify error in cases of de novo review.”).
5
(Iowa Ct. App. 2007) (holding one party did not have standing to raise arguments
on another party’s behalf in an effort to obtain a reversal of the termination
order).
Finally, the mother claims the juvenile court should have excluded one of
the State’s witnesses because the State failed to list him on its witness list before
trial. We review this claim for an abuse of discretion. See In re E.H. III, 578
N.W.2d 243, 245 (Iowa 1998). In allowing the witness to testify, the juvenile
court noted the mother originally had the witness listed as one of her witnesses
before her attorney decided not to call the witness at trial, and therefore, the
juvenile court found there was no undue surprise. See In re A.S., 743 N.W.2d
865, 869 (Iowa 2007) (noting that even the erroneous admission of evidence will
not result in reversal unless it is prejudicial); Duncan v. City of Cedar Rapids, 560
N.W.2d 320, 323 (Iowa 1997) (stating that purpose of discovery rule requiring
parties to disclose identity of any person expected to be called as a witness at
trial is to avoid surprise). The mother knew of the witness and the relevant
information he had to offer. She also received notice that the State had
subpoenaed the witness. Because the State’s failure to list the witness in its
pretrial disclosure did not prejudice the mother, the district court did not abuse its
discretion in allowing the witness’s testimony.
AFFIRMED.