In the Interest of J.K., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 24-1065
Filed October 2, 2024

IN THE INTEREST OF J.K.,
Minor Child,

M.K., Mother,
Appellant,

Z.M., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Carrie K. Bryner,

Judge.

Parents separately appeal the termination of their parental rights.

AFFIRMED ON BOTH APPEALS.

Annette F. Martin, Cedar Rapids, for appellant mother.

David R. Fiester, Cedar Rapids, for appellant father.

Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney

General, for appellee State.

Robin Lynn O’Brien Licht, Cedar Rapids, guardian ad litem for minor child.

Considered by Greer, P.J., and Ahlers and Badding, JJ.
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BADDING, Judge.

A mother and father separately appeal the termination of their parental

rights to their child under Iowa Code section 232.116(1)(h) (2023). The mother

struggled with substance use, mental health, and housing instability throughout the

proceedings, while the father was mostly absent. As a result, the juvenile court

found that “[n]either parent can be considered a safe placement at this time or any

time in the reasonable future.” We agree upon our de novo review of the record.

See In re L.B., 970 N.W.2d 311, 313 (Iowa 2022).

I. Background Facts and Proceedings

When the child was born in June 2022, her umbilical cord drug screen was

positive for “carboxy-THC.” The mother admitted to a child protective worker with

the Iowa Department of Health and Human Services that she smoked marijuana

throughout her pregnancy to help with her mental health. The department’s

investigation resulted in a founded but safe assessment, with the mother agreeing

to participate in voluntary services. Despite those services, the department

became involved with the mother again after she left the child with a friend while

she was out of town working in February 2023. Over the next few days, the child

was passed around between five people, before ending up with someone the

mother didn’t know. An acquaintance of that person contacted law enforcement,

and the child was removed from the mother’s custody.

The child was adjudicated as a child in need of assistance in March. The

father was served with notice of the proceedings at the end of that month, but he

did not apply for counsel or otherwise appear in the case until July. He participated

in just four visits with the child and not much else—he missed nearly all the court
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hearings, avoided drug testing, and failed to obtain substance use or mental health

evaluations.

The mother’s participation in services was better. She obtained a mental

health assessment, participated in weekly therapy, and found a job. But after

moving out of her parents’ home at the beginning of the case, the mother failed to

find a residence of her own. She bounced between friends’ homes, a motel, and

sleeping in her parents’ van. Despite obtaining a substance use evaluation and

participating in some treatment, the mother continued to use marijuana and missed

more than half of the drug tests that the department requested. Most of the tests

that she did complete were positive for marijuana, with two positive results for

methamphetamine in October. The mother blamed the positive methamphetamine

results on her aunt, who used the drug while the mother was staying with her. In

November, the mother was unsuccessfully discharged from substance-use

treatment. And she had not yet obtained an evaluation for medications, rather than

marijuana, to manage her mental health. Because of these concerns, the mother

never progressed beyond supervised visits, although the service provider said that

her visits “have gone really well.”

The State petitioned to terminate the parents' rights in September. The

father did not attend the hearing in December, though his attorney was present.

The department’s case manager testified that the child could not be returned to

her mother’s custody at that time, or “in the very near future,” because of her

substance use, mental health, and housing instability. The mother seemed to

agree, testifying that she would need another “[t]hree to six months, tops,” to

address the department’s concerns. The juvenile court concluded that both
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parents were out of time, finding the child “has been removed from parental care

since she was approximately eight months old. She is very young and needs a

safe, stable home and family to love and care for her. Her parents are not in a

position to provide her with the safety and stability she needs.” The parents

separately appeal this ruling.

II. Standard of Review

In conducting our de novo review of the juvenile court’s ruling, we use a

three-step analysis that asks whether (1) a statutory ground for termination is

satisfied, (2) the child’s best interests are served by termination, and (3) a statutory

exception applies and should be exercised to preclude termination. L.B., 970

N.W.2d at 313; see also Iowa Code § 232.116(1)–(3). If all three steps support

termination, we then consider any other issues the parent raises, like whether more

time should have been granted. See Iowa Code § 232.117(5); id. § 232.104(2)(b).

The mother’s petition on appeal collapses these steps in one issue heading:

“The trial court erred when it terminated the Mother’s parental rights pursuant to

Iowa Code Section 232.116(1)(h).” Under that heading, she argues without

elaboration that “there is not clear and convincing evidence that the child could not

be returned” to her care; “termination is not in the child’s best interest”; she “has a

clear bond with her daughter . . . and loves her very much”; and “there should have

been more frequent visits and an additional period of rehabilitative services.”

Assuming without deciding that the mother’s petition is sufficient to allow appellate

review under our rules, we reject each of these arguments. See In re C.B., 611

N.W.2d 489, 492 (Iowa 2000) (“A broad, all encompassing argument is insufficient
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to identify error in cases of de novo review.”). We also reject the father’s more

well-developed challenges to each of the three steps.1

III. Analysis

A. Ground for Termination

The parents only challenge the final element of Iowa Code

section 232.116(1)(h)—that the child could not be returned to parental custody at

the time of the termination hearing. See Iowa Code § 232.116(1)(h)(4) (requiring

“clear and convincing evidence that the child cannot be returned to the custody of

the child’s parents . . . at the present time”); In re D.W., 791 N.W.2d 703, 707 (Iowa

2010) (interpreting the statutory language “at the present time” to mean “at the time

of the termination hearing”). Starting with the mother, her concession that she

would need another three to six months to address the department’s concerns is

clear and convincing evidence that the child could not be returned to her custody

at the time of the termination hearing. See In re Z.R., No. 21-1290, 2022

WL 1487119, at *2 (Iowa Ct. App. May 11, 2022). It’s also supported by the record.

Since removal, the mother was without stable housing, continued to use

marijuana, was unsuccessfully discharged from substance-use treatment, and

remained without medications to treat her mental health diagnoses. See In re E.C.,

1 The State argues that the father “failed to preserve all issues” because he did not

appear for the termination hearing, and his attorney “did not question any of the
witnesses, presented no independent evidence[,] and made no argument at the
conclusion of the hearing.” As another panel of this court recently recognized,
“[t]here is some tension in our cases as to whether the normal rules of error
preservation apply in this context, or whether the [father] could have waived [his]
claims.” In re G.G., No. 22-1347, 2023 WL 152483, at *2 (Iowa Ct. App. Jan. 11,
2023) (comparing those cases). We elect to bypass the State’s error-preservation
concerns, leaving resolution of this tension in our cases for another day. See State
v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).
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No. 22-0516, 2022 WL 5080360, at *2 (Iowa Ct. App. Oct. 5, 2022). While her

visits with the child went well, she never progressed beyond fully supervised visits

because of these issues. Without this necessary progression, we cannot say the

child could have been returned to the mother’s care. See In re C.N., No. 19-1961,

2020 WL 567283, at *1 (Iowa Ct. App. Feb. 5, 2020). And while the mother now

challenges the frequency and progression of her visits, the record does not show

that she raised that complaint prior to—or even at—the termination hearing. See

In re L.M., 904 N.W.2d 835, 840 (Iowa 2017) (“In general, if a parent fails to request

other services at the proper time, the parent waives the issue and may not later

challenge it at the termination proceeding.” (citation omitted)). Clear and

convincing evidence supports termination of the mother’s rights under

section 232.116(1)(h).

We reach the same conclusion for the father who, as a service provider

testified, “hasn’t done anything throughout this case to prove that he can be

a . . . parent.” The father argues “[n]o real safety concerns were made during his

visits.” But he attended just four visits, which were “rocky” at first, according to the

provider. The father admitted that he used marijuana, but he did not obtain a

substance-use evaluation or comply with drug testing for the department. He also

failed to obtain a mental-health evaluation. Because the father did not participate

in services aimed at reunification, we agree with the juvenile court that the child

could not have been returned to his custody at the time of the hearing. See, e.g.,

In re J.R.-S., No. 24-0781, 2024 WL 3688595, at *3 (Iowa Ct. App. Aug. 7, 2024).
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B. Best Interests

Both parents combine the second and third steps of the analysis, with the

mother simply arguing that “termination is not in the child’s best interest. [She] has

a clear bond with her daughter . . . and loves her very much.” The father argues

that “[b]y severing parental rights, it is highly unlikely [the child] will have any future

chance of building” a bond with him. We examine these issues separately, starting

with the child’s best interests. See, e.g., In re A.A., No. 21-1972, 2022 WL 946503,

at *3 (Iowa Ct. App. Mar. 30, 2022) (“We choose to separately address the often-

conflated best-interests and statutory-exception arguments.”).

On that question, 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 condition and needs of the child.” Iowa

Code § 232.116(2). Neither parent addresses these factors. See In re E.S.,

No. 23-0590, 2023 WL 4104126, at *2 (Iowa Ct. App. June 21, 2023)

(“Consideration of the parent-child bond is not a part of our best-interests

analysis.”). In any event, the child cannot be placed in either parent’s custody due

to the safety concerns discussed above and their failure to complete the

recommended services. Meanwhile, the child has been in the same foster care

placement since removal and is thriving. See Iowa Code § 232.116(2)(b). We

agree with the juvenile court that termination is in the child’s best interests.

C. Permissive Exception

As for the parents’ bonds with the child, see id. § 232.116(3)(c), the father’s

argument that “[h]ad visits continued, it is more likely than not that this bond would

continue to develop and thrive” acknowledges that he has no bond with the child.
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That was confirmed by a service provider who testified, “I would say they don’t

really have a bond. I feel like [the father] is just doing the visits to do the visits.

And from my observations, it seems like it’s more of, like, this is my friend’s baby

type thing, because there is no type of bond there. . . .” The mother did have a

bond with the child, but we agree with the department’s case manager, who

testified that “the strength of the bond does not outweigh the child’s need for

permanency.” See In re A.B., 956 N.W.2d 162, 169 (Iowa 2021) (“[T]he existence

of a bond is not enough.”). Because neither parent presented evidence that the

child would suffer physically, mentally, or emotionally upon termination, we

conclude this exception does not apply. Id. (“The law requires clear and convincing

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

closeness of the parent-child relationship.’” (quoting Iowa Code § 232.116(3)(c)).

D. Additional Time

Finally, the mother requests “an additional period of time for rehabilitative

services.” An extension of time is appropriate only if we can conclude “the need

for removal . . . will no longer exist at the end of the additional six-month period.”

Iowa Code § 232.104(2)(b). The mother does not identify any “specific factors,

conditions, or expected behavioral changes” she intends to make during that

extension of time. Id. And the child has waited long enough for permanency. See

A.B., 956 N.W.2d at 169 (noting the legislature “has established a limited time

frame for parents to demonstrate their ability to be parents” and once that

“limitation period lapses, termination proceedings must be viewed with a sense of

urgency” (citation omitted)). So we reject this claim as well.

AFFIRMED ON BOTH APPEALS.