In the Interest of C.O., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 18-1346
Filed February 6, 2019

IN THE INTEREST OF C.O.,
Minor Child,

K.O., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Romonda D. Belcher,

District Associate Judge.

The mother appeals the termination of her parental rights to her child.

AFFIRMED.

Francis P. Hurley of Phil Watson P.C., Des Moines, for appellant mother.

Thomas J. Miller, Attorney General, and Anagha Dixit and John McCormally

(until withdrawal), Assistant Attorneys General, for appellee State.

Karl Wolle of Juvenile Public Defender’s Office, Des Moines, guardian ad

litem for minor child.

Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.
2

VOGEL, Chief Judge.

The mother appeals the termination of her parental rights to C.O., born in

August 2017. She argues the State failed to prove by clear and convincing

evidence that grounds for termination exist under Iowa Code section

232.116(1)(b), (e), (g), and (h) (2018). In addition, she asserts termination is not

in the best interests of the child and the willingness of a relative to assume legal

custody precludes termination under Iowa Code section 232.116(3)(a). We find

the mother has waived any claim of error under Iowa Code section 232.116(1)(h),

the child’s best interests are served by terminating the mother’s parental rights,

and no relative has legal custody of the child to preclude termination.

I. Background Facts and Proceedings

The Iowa Department of Human Services (DHS) became involved with the

family in August 2017, when C.O. tested positive for methamphetamine and

amphetamine at birth. The mother admitted to the use of methamphetamine in the

week leading up to C.O.’s birth. While C.O. was still in the hospital, the mother

left, did not return, and did not participate in a child-abuse assessment. Her

whereabouts remained unknown until she was later arrested on several drug-

related felony charges in September. The mother has a long history of substance

abuse and has previously had her parental rights terminated for two other

children.1

1
This is the third termination proceeding involving the mother. Her parental rights were
first terminated with respect to her oldest child in March 2015. The next termination
occurred in August 2016.
3

The State filed a petition to terminate parental rights in March 2018. A

termination hearing was held in two parts: beginning on May 24 and concluding on

June 7. On July 24, the district court found the State had proved by clear and

convincing evidence the grounds for termination under Iowa Code section

232.116(1)(b), (e), (g), and (h). The mother appeals.2

II. Standard of Review

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

876 N.W.2d 212, 219 (Iowa 2016). “We are not bound by the juvenile court’s

findings of fact, but we do give them weight . . . .” In re D.W., 791 N.W.2d 703,

706 (Iowa 2010). “We will uphold an order terminating parental rights if there is

clear and convincing evidence of grounds for termination under Iowa Code section

232.116.” Id.; accord Iowa Code § 232.117(3) (“If the court concludes that facts

sufficient to sustain the petition have been established by clear and convincing

evidence, the court may order parental rights terminated.”). “‘Clear and convincing

evidence’ means there are no serious or substantial doubts as to the correctness

[of] conclusions of law drawn from the evidence.” In re C.B., 611 N.W.2d 489, 492

(Iowa 2000).

III. Grounds for Termination

The district court found the State met its burden of proving grounds for

termination under Iowa Code section 232.116(1)(b), (e), (g), and (h). In the

mother’s petition, she makes the following argument,

Iowa Code § 232.116(1)(h) provides that termination is
appropriate when a child is less than three years old and has been

2
The father’s parental rights were also terminated under Iowa Code section 232.116(1)(b),
(e), (g), and (h). However, the father does not appeal.
4

removed from the parents’ care for at least six of twelve months and
cannot be returned. However, Iowa Code § 232.104(2)(b), involving
permanency, allows the Court to grant the parents an additional six
months in which to continue to participate in services and seek
reunification. The hearing on the State’s Petition to Terminate
Parental Rights was last held on June 7, 2018. Mother could be
released by September of 2018. Therefore, the Court could have,
and should have, denied the Petition and granted mother the
additional six months. In that time, [mother] may have been released
from prison and been in a position to reunite with [her] child.

Because the mother fails to argue the grounds of Iowa Code section

232.116(1)(h)3 have not been met, (specifically that the child could be returned, “at

the present time”), we find the mother has waived any claim of error related this

ground for termination. See State v. Mann, 602 N.W.2d 785, 788 n.1 (Iowa 1999)

(noting the mention of an issue without analysis, argument, or supporting authority

is insufficient to prompt appellate consideration).4 The record indicates C.O. is

younger than three years, was adjudicated as a child in need of assistance, has

not been in the mother’s care for any of C.O.’s life, and the mother was

incarcerated at the time of the termination hearing with a tentative release date in

2024. Based on this evidence and the mother’s failure to provide any argument

3 Paragraph (h) provides termination is warranted if,
The court finds that all of the following have occurred:
(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.
(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.
Iowa Code § 232.116(1)(h).
4
The mother also fails to offer any facts in support of her claim the State did not prove the
grounds under Iowa Code section 232.116(1)(b) or (e). We affirm the district court’s
findings on these grounds as well.
5

against such evidence, the State has met its burden of proving grounds for

termination. 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.”).

IV. Best Interests of the Child

Finally, the mother argues termination is not in the best interests of the child.

She argues our supreme court has recognized a presumption that a child’s best

interests is served by remaining in the care of the child’s biological parents. See

In re T.O., 470 N.W.2d 8, 12 (Iowa 1991). Our supreme court in T.O. did not

declare a presumption and instead found, “[u]nlike many other termination cases,

this case is marked by evidence of real and steady progress by [the mother] in

improving her parenting skills in order to provide a good home for her children.”

Id. Here, there is no evidence of “real and steady progress” by the mother. See

id.

In the termination order, the district court found,

A guardianship is not in the child’s best interest, not only due
to the child’s age, but also given the mother’s past behaviors, which
are most indicative of future behaviors, and the child’s need for
permanency. It would be detrimental to the child and not in his best
interest to remove him from the only home he has known, which is a
long-term commitment, and place him with a person he has never
seen and one who cannot assure his safety. The best interests of
the child would be served by termination of parents’ parental rights.

Considering the child’s young age and the mother’s total lack of interaction with

him since leaving him at the hospital following his birth, we find termination is in

the child’s best interests.
6

V. Nothing in the Record Precludes Termination

The mother next asserts the district court should have found the possibility

of relative placement precludes termination. Once the State has proved grounds

for termination exist, the parent resisting termination bears the burden of proof to

establish a permissive factor precludes termination under Iowa Code section

232.116(3). In re A.S., 906 N.W.2d 467, 476 (Iowa 2018). Iowa Code section

232.116(3)(a) provides a court may decline to terminate parental rights if “[a]

relative has legal custody of the child.” However, no relative has had legal custody

of C.O. at any point. “An 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. The child’s best interests always remain the first

consideration.” In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). Therefore, mere

willingness of the maternal aunt—who had never seen C.O.—to assume custody

is not sufficient to preclude termination. See id.

VI. Conclusion

We conclude the State proved by clear and convincing evidence the

grounds for termination of the mother’s parental rights, termination is in the best

interests of the child, and nothing in the record precludes termination.

AFFIRMED.