January 11, 2017
IN THE INTEREST OF W.A., C.A., B.A., and H.A., Minor children, A.A., Mother, Appellant, N.A., Father, Appellant.
from the Iowa District Court for Warren County, Mark F.
Schlenker, District Associate Judge.
mother and father appeal separately the termination of their
ON BOTH APPEALS.
M. Bartusek of Stoltze & Stoltze, P.L.C., Des Moines, for
P. Webber of Carr & Wright, P.L.C., Des Moines, for
J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
L. Pietz of Pietz Law Office, Des Moines, attorney and
guardian ad litem for minor child, W.A.
Kathryn Miller of Juvenile Public Defender, Des Moines,
attorney and guardian ad litem for minor children, C.A.,
B.A., and H.A.
Considered by Vaitheswaran, P.J., and Potterfield and Bower,
mother and father appeal separately from the order
terminating their parental rights to their four children, who
at the time of the termination hearing ranged in ages from
thirteen to three years old. Each parent claims the
following: the statutory grounds for termination have not
been met, a six-month extension to continue working toward
reunification is warranted, termination is not in the best
interests of the children, and the court should have placed
the children in a guardianship with the paternal grandmother.
Background Facts and Proceedings.
family has been previously involved with the Iowa Department
of Human Services (DHS) and the juvenile court due to both
parents' abuse of methamphetamine. In April 2012, when
DHS was attempting to assess the safety of the family home,
the father fired a gun at the car of a DHS worker as she was
leaving the family property. The children were then removed
from the parents' home. The father was charged with
several crimes and ultimately pled guilty to intimidation
with a dangerous weapon. He was sentenced to a term of
imprisonment, which began in late September 2014. The mother
participated in drug-rehabilitation treatment and other
services, and the children were able to return to the family
home. The case was successfully closed in early 2014.
became involved with the family again in April 2015, after
local law enforcement alerted DHS to their belief the mother
was using methamphetamine. The father was incarcerated at
this time and remained incarcerated throughout the case. DHS
attempted to implement a safety plan that would allow the
children to remain in the family home, but the mother refused
to provide a sample for urinalysis (UA). All four children
were removed on April 24, 2015. The youngest child's hair
was tested and was positive for methamphetamine and
termination hearing took place over four dates: June 2, 3,
and 23, and July 1, 2016. At the hearing, the mother admitted
that although she had denied using methamphetamine from the
time the children were removed until April 2016-when she
began outpatient drug-rehabilitation treatment-she had used
the drug "the majority of the month" in April 2015,
"the majority of the month" in February 2016, and
once in April 2016. The mother's most recent positive
drug test occurred on April 29, 2016. The mother was arrested
on two separate occasions in 2016, and the criminal charges
were still pending at the time of the hearing. The mother was
without employment. The electricity to the family home had
only recently been turned back on at the time of the first
couple days of the termination hearing, and it was off again
by the final day; the water to the home had also been turned
off. The mother missed four visits with the children in the
month of June, and she started seeing a new therapist between
the hearing dates.
mother testified that she would like to have the children
returned to her, but she admitted she was not in a position
for that to occur at the time of the hearing. She asked the
court for a six-month extension.
father testified telephonically from prison during one day of
the hearings. He testified that he was able to call the
children and often did so. He had also had a number of visits
with the children at the prison. He asked the court for a
six-month extension, noting that he would be discharged on
November 26, 2016.
parents testified they would prefer the children be placed in
a guardianship with the paternal grandmother over other
alternatives before the court.
court terminated both parents' rights to each of the four
children. The court terminated both the mother's and the
father's rights to W.A., C.A., and B.A. pursuant to Iowa
Code section 232.116(1)(f) (2015) and to H.A. pursuant to
section 232.116(1)(h). The court also terminated the
father's parental rights to all four children under
section 232.116(1)(b); the mother's rights were
terminated to each of the four children under section
mother and father both appeal.
Standard of Review.
review the juvenile court's decision to terminate de
novo. See In re M.W., 876 N.W.2d 212, 219 (Iowa
mother challenges the statutory grounds for termination. When
a parent's rights have been terminated, we affirm if we
find any one of the grounds supported by clear and convincing
evidence in the record. See In re D.W., 791 N.W.2d
703, 707 (Iowa 2010).
court terminated the mother's rights to W.A., C.A., and
B.A. pursuant to section 232.116(1)(f) and to H.A. pursuant
to subsection (h). For the court to terminate under these
grounds, the child must be of a specific age, have been
adjudicated CINA, and have been out of the home for a
specific period of time. The mother does not dispute that
each of the three elements were met for each child. Rather,
she challenges the court determination under the final
element- that the children could not be returned to her care
at the time of the termination hearing. See Iowa
Code § 232.116(1)(f)(4), (h)(4). In the alternative, the
mother maintains that if the children could not be returned
to her care at the time of the hearing, they could have been
returned after an additional six months. See id.
mother's own estimation, she was not in a position to
have the children returned to her at the time of the
termination hearing. The family home did not have working
electricity or water. The mother had, at best, relapsed on
methamphetamine approximately one month before the
termination hearings began and was still weeks from finishing
her outpatient treatment when they concluded. She was
unemployed, and it was unclear how she would be able to
provide for the four children. Although the mother had a
strong bond with the children, she often missed visits-four
in the month of June alone-and treatments. Additionally, the
mother had pending criminal charges.
mother had recently started making strides-admitting to using
methamphetamine and beginning substance-abuse treatment-but
she had not yet progressed substantively, and, while we
certainly hope she does, we cannot say with confidence that
she will. Thus, we cannot find that an additional six months
to work toward reunification is warranted. See Iowa
Code § 232.104(2)(b) ("[A]n order [continuing the
placement of the child for six months] shall enumerate the
specific factors, conditions, or expected behavioral changes
which comprise the basis for the determination that the need
for removal of the child from the child's home will no
longer exist at the end of the additional six-month
period."). Moreover, even if the mother followed through
on everything she testified she planned to do-find a job,
continue with her drug treatment, become more engaged in
therapy, and discontinue associations with criminals and drug
users-we cannot say the mother will not be incarcerated in
the mother claims termination is not in the children's
best interests. She notes that the children have been split
up-two in one home, and two in another-during the
pendency of the case and are likely to be similarly situated
in a permanent placement. While we understand the concern about
dividing the siblings, it is unclear what the mother would
have us do. Whether the children are in one or two
placements, they cannot return to the mother's care at
this time, and they need 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 interests" are the child's safety
and "need for a permanent home"); see also In
re C.B., 611 N.W.2d 489, 495 (Iowa 2000) ("Once the
[statutory] limitation period lapses, termination proceedings
must be viewed with a sense of urgency."). We cannot
place the importance of the sibling bond over the individual
safety and well-being of each of the children. See In re
I.H., No. 02-0758, 2002 WL 1433738, at *3 (Iowa Ct. App.
July 3, 2002) ("We recognize, as [the father] argues,
and the State does not deny, that there is a preference in
the law for keeping siblings together, and the termination
order severs the sibling relationship as well as the parental
relationship. That preference is not strong enough to
outweigh the evidence favoring termination in this
mother claims the closeness of the bond she shares with the
children weighs against terminating her parental rights.
See Iowa Code § 232.116(3)(c). While it is
clear the children love the mother, we have found no evidence
in the record that severing the relationship would be
detrimental to the children. See D.W., 791 N.W.2d at
709 ("Although it is clear [the mother] loves her
[child], our consideration must center on whether the child
will be disadvantaged by termination, and whether the
disadvantage overcomes [the mother's] inability to
provide for [the child's] developing needs.").
the mother urges that the children should have been placed in
a guardianship with the paternal grandmother. See
Iowa Code § 232.104(2). First, we note that
guardianships are not legally preferred to the termination of
the parent's rights. See In re L.M.F., 490
N.W.2d 66, 67-68 (Iowa Ct. App. 1992) (stating that placement
of children pursuant to permanency orders is not a legally
preferential alternative to terminating parental rights when
there is sufficient evidence to terminate). In fact,
"[a]n appropriate determination to terminate a
parent-child relationship is not to be countermanded by the
ability and willingness of a family relative to take the
child." In re C.K., 558 N.W.2d 170, 174 (Iowa
1997). Although the paternal grandmother had recently moved
from California to Iowa for the express purpose of being
available as a placement for the children, the grandmother
did not yet have a residence in which she could accept the
children. Additionally, we have concerns regarding whether
the grandmother could or would keep the children safe from
the parents in the future, if necessary. At the termination
hearing, the grandmother seemed to question the need for DHS
involvement with the family while minimizing the importance
of the mother's drug use and the father's lack of
involvement due to his incarceration. For example, the
grandmother testified she thought the DHS worker at whom her
son had shot was "vindictive" when the worker
testified at the son's parole hearing. The following
exchange occurred between the grandmother and one of the
guardians ad litem:
Q: [D]o you think [the DHS worker] is required to forgive
your son for chasing her with a gun and shooting at her?
A. He didn't chase after her. He didn't shoot her-at
Q. What is your understanding that he [did]?
A. That was-I don't know that that was really the
allegation. It was an intimidation with a weapon was the
Q. Do you know what intimidation with a weapon is?
A. I don't-All I know is the circumstances of the case
and he shot at her car tires.
Q. And back to my question. Do you think she's required
to forgive him?
A. Well, I wouldn't say she's required to forgive
him, but what I know about crime and, you know, being a
victim, it's a two-way street. There's a lot of
things being done now for-I don't know if I can remember
the quite the right name-but where victims and the
perpetrator or whatever you want to call it, they have kind
of mediation type thing. I don't know what's that
called, but I think it would be helpful if something like
that might occur.
juvenile court considered the option of the grandmother and
the guardianship but ultimately decided against it. The court
[T]he Court finds little in [the paternal grandmother's]
testimony to cause the Court to do other than find for
termination. The Court does note a significant portion of her
testimony is directed at the perceived improprieties of [DHS]
and her unhappiness with [it]. She is free to voice her
displeasure in any legal means, but it is of dubious evidence
in these cases. Her statement that she voiced displeasure
regarding "a conspiracy against me" was not
supported by the evidence. The Court does not find that
establishment of guardianship in [the paternal grandmother]
instead of termination would be appropriate or in the best
interests of any child now before the Court.
agree with the juvenile court that termination of the
mother's parental rights was the best option for these
children. We affirm the termination of the mother's
rights to each of the four children.
court also terminated the father's rights to W.A., C.A.,
and B.A. pursuant to section 232.116(1)(f) and to H.A.
pursuant to subsection (h). The father does not challenge the
court's findings under the first three elements, and he
does not argue that the children could have been returned to
him at the time of the termination hearings. Rather, the
father maintains the children could have been returned to the
mother, so the court should not have terminated his rights.
"[The father] did not have standing to assert that
argument on [the mother's] behalf in an effort to
ultimately gain a benefit for himself, that is, the reversal
of the termination of his parental rights."
In re K.R., 737 N.W.2d 321, 323 (Iowa Ct. App.
2007). Because the father has not made any arguments
challenging the statutory grounds to terminate his rights
under these subsections, any claim of error is waived.
See Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996)
("[O]ur review is confined to those propositions relied
upon by the appellant for reversal on appeal.").
the father argues the court should have given him a six-month
extension to work toward reunification. He argues the
court's denial of his request violated his Due Process
rights. In making his argument, the father lays out three
factors that are to be considered when determining whether a
party has received Due Process. See Mathews v.
Eldridge, 424 U.S. 319, 334-35 (1976) ("More
precisely, our prior decisions indicate that identification
of the specific dictates of due process generally requires
consideration of three distinct factors: First, the private
interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and
finally, the Government's interest, including the
function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement
would entail."). The father then considers only one of
the factors- claiming that his and his children's private
interests in their relationship weighs against termination.
See F.K. v. Iowa Dist. Ct., 630 N.W.2d 801, 808
(Iowa 2001) ("The Supreme Court has also recognized that
a parent's right to the care and custody of a child is
reciprocated by the child's liberty interest in familial
association . . . ."). The father has not challenged the
process or scheme set out by the legislature involving CINA
adjudications, permanency hearings, or the ultimate
termination process, nor has he claimed that process was not
followed here. The father also fails to consider the
State's interest and its "heavy responsibility of
'assur[ing] that every child within its borders receives
proper care and treatment . . . .'" Id. at
809 (quoting In re A.M.H., 516 N.W.2d 867, 871 (Iowa
1994) (alteration in original)). Having considered and
weighed each of the three factors, we find the juvenile
court's denial of the father's request for a
six-month extension was not a violation of the father's
right to Due Process.
we agree with the court that the extension was not warranted
here. Although the father was to be discharged from prison
within six months, it was unclear where he would live once he
was discharged. He appeared to expect to move back to the
family home, but the mother talked of selling it. She also
had at least one new paramour, so it is unclear if the father
would be welcomed back into the family home. Additionally,
the father had refused to sign releases for DHS while he was
in prison, so we have no record of what services or classes
he may have taken while incarcerated, and DHS had no way of
knowing what medications, therapy, or treatment the father
would need once he was released. The father cites his
numerous visits and phone calls with the children during his
incarceration as proof that he will be ready to parent
full-time once he is released, but as the juvenile court
stated, "While the phone calls are probably a positive
aspect of his relationship with his children, parenting
involves more than phone calls, and 'playing
Monopoly and whatever games are available' is
not much parental involvement over the last two years."
father maintains termination of his parental rights is not in
the children's best interests due to the closeness of
their relationship. Although the two oldest children have
been able to talk to their father relatively frequently while
he has been in prison, he has largely been out of the
children's day-to-day lives since he was incarcerated in
2014. Nothing in the record suggests that termination would
be so detrimental to these children to outweigh the benefits
father makes the same arguments as the mother regarding the
fact that he believes dividing the children into separate
permanent placements is not in the children's best
interests and the paternal grandmother should be guardian of
the children. For the same reasons the mother's arguments
were unsuccessful, the father's also fail.
affirm the termination of the father's parental rights to
each of the four children.
ON BOTH APPEALS.
 On the final day of the termination
hearing, the mother's treatment counselor testified the
mother's course of treatment was being extended by a
number of weeks due to the amount of sessions the mother had
 If it was known at the time of the
hearings, it is not clear to us from the record what the
likely disposition of the charges would be.
 According to the State's brief to
the juvenile court in lieu of a closing argument, the mother
had the following pending charges: two counts of accessory
after the fact, one count of possession of marijuana, one
count of possession of drug paraphernalia, and one count of
theft in the fifth degree.
 When the termination hearings began,
two of the children were placed with the maternal grandmother
and two were placed with a maternal uncle. Neither were
permanent placement options.
 At the time of the termination
hearing, DHS had a number of permanent placement options that
were still being considered. Some involved the three youngest
children in one home with the oldest in another; others
involved two children being adopted by one family in an open
adoption with the other two children in another home.