In the Interest of K.P., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 20-1387
Filed March 17, 2021

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

K.P., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic,

District Associate Judge.

A mother appeals the termination of her parental rights. AFFIRMED.

Mark A. Milder, Denver, for appellant mother.

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

General, for appellee State.

Cynthia Schuknecht of Noah, Smith, Schuknecht & Sloter, P.L.C., Charles

City, attorney and guardian ad litem for minor child.

Considered by May, P.J., and Greer and Schumacher, JJ.
2

MAY, Presiding Judge.

A mother appeals the termination of her parental rights to her child, K.P.,

who was born in 2017. The mother claims (1) termination is not in K.P.’s best

interest, (2) the juvenile court should have exercised exceptions to termination

under Iowa Code section 232.116(3)(a) and (c) (2020), (3) the court should have

granted the mother additional time to work toward reunification, and (4) she was

denied due process because she was unable to attend the termination hearing in

person. We affirm.

We review termination proceedings de novo. In re Z.P., 948 N.W.2d 518,

522 (Iowa 2020). “We will uphold an order terminating parental rights where there

is clear and convincing evidence of the statutory grounds for termination. Evidence

is clear and convincing when there is no serious or substantial doubt as to the

correctness of the conclusions of law drawn from the evidence.” In re T.S., 868

N.W.2d 425, 431 (Iowa Ct. App. 2015) (citation omitted). Review of the mother’s

constitutional claim is also de novo. See In re C.M., 652 N.W.2d 204, 209 (Iowa

2002).

We generally use a three-step analysis to review the termination of a

parent’s rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). We must determine:

(1) whether grounds for termination have been established, (2) whether

termination is in the child’s best interest, and (3) whether we should exercise any

of the permissive exceptions to termination. Id. at 472–73. We also address any

additional claims raised by the mother. In re K.M., No. 19-1637, 2020 WL 110408,

at *1 (Iowa Ct. App. Jan. 9, 2020).
3

Here, the court found grounds authorizing termination pursuant to Iowa

Code section 232.116(1)(h). On appeal, the mother does not challenge the

statutory grounds for termination. So we need not address this step in our analysis.

In re J.P., No. 19-1633, 2020 WL 110425, at *1 (Iowa Ct. App. Jan. 9, 2020).

We move on to the second step in our analysis, which requires us to

determine whether termination is in K.P.’s best interest. 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.” In re P.L., 778 N.W.2d 33, 40 (Iowa 2010)

(quoting Iowa Code § 232.116(2)). “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. at 41.

When considering whether termination is in K.P.’s best interest, we look to

the mother’s past performance as an indicator of the care she is likely to provide

in the future. See In re C.K., 558 N.W.2d 170, 172 (Iowa 1997). And the mother’s

past performance raises substantial concerns about the future K.P. would have

with her. She has struggled with cocaine use and admitting she has a substance-

abuse problem. Since the Iowa Department of Human Services (DHS) became

involved with the mother in August 2018, substance abuse has remained a

concern.

K.P. has come to this court’s attention three times before. See generally In

re K.P., No. 20-0402, 2020 WL 3571890 (Iowa Ct. App. July 1, 2020) (addressing

the father’s challenge to removal); In re K.P., No. 20-0220, 2020 WL 1881122
4

(Iowa Ct. App. Apr. 15, 2020) (addressing the mother’s challenge to removal); In

re K.P., No. 19-0470, 2019 WL 2524137 (Iowa Ct. App. June 19, 2019)

(addressing both parents’ challenge to removal). We note our finding in April 2020

that

the mother ignores the fact that she has been found to have taken
efforts to sabotage drug testing and has been believed to have been
successful in such efforts due to the fact the mother has had negative
drug tests during times when it would have been expected she would
test positive given her admissions of use.

K.P., 2020 WL 1881122, at *2 (affirming “the juvenile court’s order confirming

removal of [K.P.] from the mother’s care and custody”). Similarly, in its October

termination ruling, the juvenile court noted that “circumstances demonstrate an

extraordinary ability of mother to circumvent drug testing over the course of the

[child-in-need-of-assistance] proceeding.” Even so, the mother tested positive for

cocaine twice, in March and August 2020.

But drug abuse is not the only issue. The mother has also struggled with

unresolved mental-health issues, violence and abuse in K.P.’s presence, proper

supervision, and meeting essential needs. Like the juvenile court, we conclude

termination is in K.P.’s best interest.

We move to our third step, whether we should apply a section 232.116(3)

exception to preclude termination. The mother argues termination is not necessary

because “the child is with a relative now and would be with a relative even if both

parents’ rights were terminated.” From this, we infer she is attempting to invoke

section 232.116(3)(a), which authorizes the juvenile court to forgo termination if

“[a] relative has legal custody of the child.” But section 232.116(3) exceptions are

permissive, not mandatory. In re A.R., 932 N.W.2d 588, 591 (Iowa Ct. App. 2019).
5

And the burden of establishing an exception rests with the mother. See A.S., 906

N.W.2d at 476.

The mother has not met this burden. She argues that, since K.P. is likely

to return to the father’s custody, “there is little to gain and much to lose” by

terminating her rights. But this overlooks K.P.’s inherent need for permanency.

Our Code recognizes certain timelines for these proceedings. See, e.g., Iowa

Code § 232.116(1)(h)(3). These timelines exist because we cannot hold children

in limbo indefinitely. See Z.P., 948 N.W.2d at 523. And forgoing termination would

only subject K.P. to continued, unjustified limbo. This is not in her best interest.

So we decline to apply section 232.116(3)(a).

The mother also argues termination is not necessary due to the strong

parent-child bond she has with K.P. From this, we infer she is attempting to invoke

section 232.116(3)(c), which authorizes the juvenile court to forgo termination 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.” We

decline to apply section 232.116(3)(c) here. K.P. has been out of the mother’s

care since January 2020. And she was previously removed from the mother’s care

for four months in 2019. K.P. is only three years old and has spent much of that

time out of the mother’s care. Additionally, the court appointed special advocate

reported that the mother’s “bond with [K.P.] is fragile and seems to suffer in the

presence of the other siblings[1] as [K.P.] appears to prefer to spend her time with

1 The mother has eight children. K.P. is her youngest.
6

them versus her mother.” We see no clear and convincing evidence that the bond

between K.P. and the mother outweighs K.P.’s pressing need for permanency.

Next, we address the mother’s argument that she should be given an

additional six months to work toward reunification. Under Iowa Code

section 232.104(2)(b), the juvenile court may defer termination for a period of six

months if it is able to “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.”

Here the mother complains that (1) the father was granted additional time

for reunification and (2) her older children were not due for permanency until the

end of 2020. But we cannot agree that an extension must be given to one parent

just because another parent is allowed additional time to work toward reunification.

See A.R., 932 N.W.2d at 591. We also cannot agree that permanency timelines

must change based on the status of older siblings’ cases. The mother has not

cited—and we have not found—any authority supporting her assertions.

Nor do we see any other reason for the juvenile court to have postponed

termination. While the mother highlights her efforts toward reunification, DHS has

been involved with the mother since August 2018. Even so, as the juvenile court

noted in its October 2020 termination order, “the initial concerns of violence,

substance abuse, parent-child conflict, parental conflict and failure to meet the

needs of the children, largely remain.” Given this history, we are unable to point

to any specific and lasting change that will likely permit reunification within the next
7

six months. See Iowa Code § 232.104(2)(b). So we do not believe

section 232.104(2)(b) required a grant of additional time.

Finally, we address the mother’s claim that she “was denied a fair trial and

due process under the Iowa and United States Constitution[s] after being denied

the right to attend the hearing for termination of [her] parental rights in person.”

Here is what happened: The juvenile court began the termination hearing in person

on August 24, 2020. However,

[d]uring the lunch break a judicial branch employee who had been in
the courtroom for the entire proceeding was notified of a positive
coronavirus test of a person with whom there had been prolonged
contact less than forty-eight hours earlier. After consultation with
court administration, the rest of the hearing was cancelled for that
day and rescheduled for September 24, 2020.

A few days later, the supreme court issued an order to address the

coronavirus/COVID-19 impact on court services. See Iowa Supreme Ct.

Supervisory Order, In the Matter of Ongoing Provisions for Coronavirus/COVID-19

Impact on Court Services (Sept. 1, 2020). The order stated:

Through December 31, 2020, juvenile courts may order that
any proceeding in cases filed under Iowa Code Chapters 232 and
600A may be conducted with the parties or participants appearing
remotely by videoconference or telephone. This includes child-in-
need-of-assistance adjudications, dispositional hearings, and
terminations of parental rights. Any order directing a proceeding by
videoconference or telephone may be entered over the objection of
a party, but only after that party has an opportunity to be heard. If
the juvenile court proposes a proceeding by videoconference or
telephone, the presumption shall be in favor of going forth in that
manner. Attorneys and self-represented litigants shall articulate in
their objections the reasons constituting good cause for an in-person
proceeding.
Juvenile delinquency adjudication proceedings may be held
by videoconference or telephone only by consent of the parties.

Id. (emphasis added).
8

In response to this guidance from our supreme court, the juvenile court

ordered that the hearing would be conducted entirely by teleconference on

September 24. But the juvenile court’s order also permitted any aggrieved party

to file an objection. In response, the mother filed a request for an in-person

hearing. Following a hearing, the court overruled the mother’s request. The court

concluded: “Nothing that [the mother] raises in her objections overrides the

presumption that it is appropriate to proceed with the hearing by teleconference.

It is in [K.P.]’s best interest to decide this issue at the earliest possibility. There is

no prejudice to [the mother] in proceeding with the hearing remotely.”

The court then proceeded with the second day of the termination hearing.

The mother and her lawyer participated by teleconference. The mother was able

to testify, call witnesses, and submit exhibits.

We see no due process violation in this record. Although the court

ultimately overruled the mother’s objections to the use of remote technology, she

was given the opportunity to be heard on the issue. Moreover, we have held that—

when in-person attendance is not a viable option—remote termination hearings

are consistent with due process so long as parents are allowed robust participation

through telephone or other technology, and our supreme court has approved that

holding. See In re A.H., 950 N.W.2d 27, 33–40 (Iowa Ct. App. 2020); see also In

re A.B., ___ N.W.2d ___, ___, 2021 WL 935436, at *7 (Iowa 2021) (“In In re A.H.,

. . . our court of appeals issued a thorough, published opinion upholding a decision

. . . to hold a telephonic hearing . . . during the COVID-19 pandemic. We generally

agree with the reasoning in that court of appeals decision.”); In re K.B., No. 20-

1046, 2020 WL 7021579, at *3–4 (Iowa Ct. App. Nov. 30, 2020); In re K.A., No. 20-
9

0979, 2020 WL 5946114, at *3–4 (Iowa Ct. App Oct. 7, 2020); In re B.S., No. 20-

0929, 2020 WL 5651693, at *1–2 (Iowa Ct. App. Sept. 23, 2020); In re A.V., No. 20-

0749, 2020 WL 4207407, at *1 (Iowa Ct. App. July 22, 2020). Here, the mother

admits she was able to participate fully in the hearing. So we cannot conclude the

mother was deprived of due process.

For the foregoing reasons, we affirm the juvenile court’s order terminating

the mother’s parental rights.

AFFIRMED.