In the Interest of M.W., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 22-0963
Filed September 21, 2022

IN THE INTEREST OF M.W.,
Minor Child,

A.J., Mother,
Appellant,

M.W., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,

District Associate Judge.

A mother and father separately appeal the termination of their parental

rights. AFFIRMED ON BOTH APPEALS.

Brooke J. Thompson of Miller, Zimmerman & Evans, PLC, Des Moines, for

appellant mother.

Jessica J. Chandler of Chandler Law Office, Windsor Heights, for appellant

father.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

ConGarry Williams, Des Moines, attorney and guardian ad litem for minor

child.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
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SCHUMACHER, Judge.

A mother and father separately appeal the termination of their parental

rights. We conclude termination of the father’s parental rights is in the child’s best

interests. We determine there is clear and convincing evidence in the record to

support termination of the mother’s parental rights, the mother waived her claim

concerning reasonable efforts, and she did not preserve error on her request for

an extension of time. We affirm on both appeals.

I. Background Facts & Proceedings

M.W. is the father and A.J. is the mother of M.W., who was born in 2014.

The father and child resided together in Iowa, while the mother lived in Arizona. In

2019, there was a report that the father physically abused the child by inflicting

injuries to her face. At that time the mother was in prison in Arizona, but she was

released later in 2019. The mother has a criminal history of assault and domestic

violence.1

The Iowa Department of Human Services (DHS) more recently became

involved with the family in February 2021 when the father blended hot peppers and

then put the peppers in the child’s eyes as a form of punishment. He removed her

clothing, tied her hands behind her back, and placed a gag in her mouth. The child

had a black eye, split lip, and rug burns. The child was removed from parental

custody on February 17 and placed in foster care.

1 The mother has five other children. Her parental rights to four children older than
M.W. were terminated. The mother was involved with the Arizona Department of
Child Safety for a younger child, born in 2021, because the mother tested positive
for marijuana at the time of the child’s birth. This younger child was removed from
the mother’s custody. The mother is involved in juvenile court proceedings in
Arizona for the child born in 2021.
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The father did not participate in services prior to going to jail. The father

pled guilty to child endangerment causing bodily injury. On January 26, 2022, he

was sentenced to a term of imprisonment not to exceed five years and was in

prison for the remainder of the juvenile court proceedings. A criminal no-contact

order was entered prohibiting the father from having contact with the child until

2027.2

The child was adjudicated to be in need of assistance, pursuant to Iowa

Code section 232.2(6)(b) and (c)(2) (2021). The court noted, “In his testimony,

[the father] became excessively angry and aggressive in his tone with the court.”

The mother attended the adjudication hearing on May 25 but did not attend the

dispositional hearing on August 3 or a review hearing on November 3. DHS

reported that it had difficulty communicating with the mother. The review order

stated, “The mother resides in Arizona. Her [Interstate Compact on the Placement

of Children (ICPC)] home study was denied, largely as a result of her refusal to

share necessary information.” DHS had continued difficulty staying in contact with

the mother.

On February 15, 2022, the State filed a petition seeking termination of the

parents’ rights. At the termination hearing, the mother stated she did not give any

information when contacted for the ICPC. The mother stated she had not seen the

child in person since she got out of prison in 2019. She had one video visit with

the child prior to the termination hearing. DHS reported the child regressed in her

2In a new charge, the father pled guilty to assault causing bodily injury. In January
2022, he was sentenced to twenty-six days in jail, with credit given for twenty-six
days previously served.
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behaviors after the visit. Following the visit, the child struggled with self-harming

behavior, bed-wetting, and nightmares. DHS determined all visits should occur in

a therapeutic setting. No further visits occurred.

The father testified that he wanted to maintain a relationship with the child.

He stated, “I did discipline her in which way that she may not have liked and it

cause—it caused a lot of distraction towards her life or whatsoever.” He denied

physically abusing the child and said the guilty plea “was pretty much forced on

me to sign due to my lack of understanding.”

The juvenile court entered an order on May 23, 2022, terminating the

father’s parental rights under section 232.116(1)(b), (d), (e), (f), and (j) (2022) and

the mother’s parental rights under section 232.116(1)(b), (d), (e), and (f). On the

issue of the child’s best interests, the court found:

The child’s safety is a primary consideration. Unfortunately, the
safety concerns that led to removal continue to exist today. The
parents’ lack of participation in services shows an inability or
unwillingness to make necessary changes to have their child placed
in their care. This child’s future can be gleaned from evidence of the
parents’ past performance and motivations.

The court determined none of the exceptions in section 232.116(3) should be

applied. The mother and father appeal the juvenile court’s decision.

II. Standard of Review

Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d

764, 773 (Iowa 2012). The State must prove its allegations for termination by clear

and convincing evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). “‘Clear

and convincing evidence’ means there are no serious or substantial doubts as to

the correctness [of] conclusions of law drawn from the evidence.” Id. Our primary
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concern is the best interests of the child. In re J.S., 846 N.W.2d 36, 40 (Iowa

2014).

III. Father

In general, we follow a three-step analysis in reviewing the termination of a

parent’s rights. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). We first consider

whether there is a statutory ground for termination of the parent’s rights under

section 232.116(1). Id. Second, we look to whether termination of the parent’s

rights is in the child’s best interests. Id. (citing Iowa Code § 232.116(2)). Third,

we consider whether any of the exceptions to termination in section 232.116(3)

should be applied. Id.

A. The father disputes the second element—whether termination of his

parental rights is in the child’s best interests. He does not challenge the sufficiency

of the evidence to support the statutory grounds to terminate his parental rights,

so we do not address this step. See id. at 40.

In considering the best interests of a child, 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 needs of the

child under section 232.116(2).” Id. at 41. “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.

We find termination of the father’s parental rights is in the child’s best

interests. This is not a close call. The father physically abused the child and pled

guilty to child endangerment. He has not participated in services to improve his
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parenting skills. The father has not taken responsibility for his actions.

Additionally, because of the no-contact order, his contact with the child is

prohibited until 2027. We conclude termination of the father’s parental rights is in

the child’s best interests.

B. On the third element, the father claims there is “a very strong bond

between himself and the child.” Iowa Code section 232.116(3)(c) provides that the

court may decide not to terminate a parent’s rights if “[t]here is clear and convincing

evidence that the termination would be detrimental to the child at the time due to

the closeness of the parent-child relationship.” The exceptions to termination

found in section 232.116(3) are permissive, not mandatory. In re W.T., 967

N.W.2d 315, 324 (Iowa 2021). We agree with the juvenile court’s statement on

this issue:

The father seems to assert that, based on the bond between him and
his daughter, that termination would be more harmful than
maintaining his parental rights. However, the child’s therapist
testified that [the child’s] memories of her father are of being scared.
She does not mention that she misses him or wants to see him.

IV. Mother

A. The mother claims there is not sufficient evidence in the record to

support termination of her parental rights. “We will uphold an order terminating

parental rights where there is clear and convincing evidence of the statutory

grounds for termination.” In re T.S., 868 N.W.2d 425, 434 (Iowa Ct. App. 2015).

“When the juvenile court orders termination of parental rights on more than one

statutory ground, we need only find grounds to terminate on one of the sections to
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affirm.” Id. at 435. We consider the termination of the mother’s parental rights

under section 232.116(1)(f).3

The third element of section 232.116(1)(f) requires a finding that “[t]he child

has been removed from the physical custody of the child’s parents.” The mother

claims because she never had the child in her physical custody, this element has

not been proven. She disputes the applicability of section 232.116(1)(f), stating

the section should not apply to a parent who never had physical custody of their

child. We reject this argument.

In In re C.F.-H., the Iowa Supreme Court found “mere lack of physical

custody” was not “sufficient to satisfy the statutory requirement of ‘removal of

physical custody.’” 889 N.W.2d 201, 208 (Iowa 2016). There, the child remained

in the mother’s custody and was never removed by judicial proceedings from the

father’s custody, leading the court to conclude the third element of section

232.116(1)(f) had not been met. Id. Later, in In re J.E., the juvenile court issued

an order removing the child from one parent, which this court found “distinguishes

this case from C.F.-H.” 907 N.W.2d 544, 547 (Iowa Ct. App. 2017). This court

stated that physical removal from one parent “is sufficient to start the statutory

3Section 232.116(1)(f) provides for termination of parental rights if the court finds
all of the following:
(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.
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timelines counting toward termination as to either parent.” Id.; see also In re Z.P.,

948 N.W.2d 518, 523 (Iowa 2020) (noting the removal from one parent “constituted

a physical removal as contemplated by the statute”).

The child was formally removed from the parents’ custody on February 15,

2021. This removal order was sufficient to start the statutory clock for termination

of parental rights under section 232.116(1)(f). See J.E., 907 N.W.2d at 547. We

find section 232.116(1)(f)(3) applies because the child was removed from the

parents’ custody. See Z.P., 948 N.W.2d at 523.

The mother does not dispute the other elements of section 232.116(1)(f),

so we do not address them. We conclude the juvenile court properly determined

the mother’s parental rights could be terminated under section 232.116(1)(f).

B. The mother contends that she should be given additional time to

work on reunification with the child. She states the court should have given her an

extension for six months under section 232.104(2)(b), which provides for a six-

month extension based on a “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.” The mother asserts that DHS did not provide her with sufficient services.

She states that with proper services, within six months the child could be returned

to her custody.

The mother’s argument includes a claim that the State did not make

reasonable efforts to reunite her with the child. “Reasonable efforts are services

to ‘preserve and unify a family prior to the out-of-home placement of a child in

foster care or to eliminate the need for removal of the child or make it possible for
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the child to safely return to the family’s home.’” In re L.T., 924 N.W.2d 521, 529

(Iowa 2019) (quoting Iowa Code § 232.102(10)(a)).

On April 8, 2022, after the petition for termination of parental rights was filed,

the mother filed a motion on denial of reasonable efforts, claiming the State had

not done enough to provide her with visitation with the child. The court denied the

motion, finding a previous order specified how visitation would proceed. Although

the mother claims on appeal that DHS did not provide her with sufficient services,

she does not identify the specific services that should have been offered to her.

She argues only that she should be permitted “additional time to unify with M.W.

based on the lack of services the Department provided.” The mother’s failure to

object or identify the alleged deficiency in services provided by DHS prior to the

termination hearing waives the issue. See In re L.M., 904 N.W.2d 835, 840 (Iowa

2017). A challenge raised for the first time on appeal is too late. See id.

The juvenile court did not address the issue of an extension of time under

section 232.104(2)(b) in the termination order. We determine the issue has not

been preserved for our review. See In re M.A.F., 679 N.W.2d 683, 685 (Iowa Ct.

App. 2004) (“Under our rules of civil procedure, an issue which is not raised before

the juvenile court may not be raised for the first time on appeal.”). Even if the issue

had been preserved, we find an extension of time would not be appropriate in this

case. The mother did not participate in the services that were offered to her. She

has an extensive history of involvement in the criminal system and child welfare

system. The court found, “The parents’ lack of participation in services shows an

inability or unwillingness to make necessary changes to have their child placed in

their care.” We are unable to conclude that the need for removal of the child from
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the child’s home will no longer exist at the end of any additional six-month period.

We affirm the juvenile court’s order terminating the mother’s parental rights.

AFFIRMED ON BOTH APPEALS.