In the Interest of J.O., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 21-1097
Filed October 20, 2021

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

D.O., Father,
Appellant,

N.P., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County, Adam D.

Sauer, District Associate Judge.

A mother and father separately appeal the termination of their parental

rights. MOTHER’S APPEAL AFFIRMED; FATHER’S APPEAL REVERSED AND

REMANDED.

Michael J. Moeller of Sorensen & Moeller Law Office, Clear Lake, for

appellant father.

Jane M. Wright, Forest City, for appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

David A. Grooters, Mason City, attorney and guardian ad litem for minor

child.

Considered by Tabor, P.J., and Greer and Badding, JJ.
2

TABOR, Presiding Judge.

Three-year-old J.O. is the son of Nichole and David. The parents separately

appeal the termination of their parental rights. Both allege that severing their legal

relationship with their son is not in his best interests. And they ask us to reverse

the juvenile court’s order, claiming J.O. is in the legal custody of his maternal

grandmother. In the alternative, both parents ask for six more months to achieve

reunification. Nichole also asks us to consider placing J.O. in a guardianship with

her mother.

After a full review of the record, we reach a different result for each parent.1

We affirm the termination of Nichole’s rights. But we find delaying permanency for

six months would provide enough time for David to meet expected behavioral

changes that would eliminate the need for J.O.’s removal, so we reverse and

remand as to David only.

I. Facts and Prior Proceedings

Nichole’s methamphetamine use prompted the Department of Human

Services (DHS) to remove J.O., then two years old, from her care in September

2020. After removal from Nichole’s care, J.O. lived with his maternal grandmother

in Mason City—where he remained during the child-in-need-of-assistance (CINA)

case. Nichole was also living in Mason City. But David had moved from Mason

City to East Moline, Illinois.

1 We review termination of parental rights de novo. In re W.M., 957 N.W.2d 305,
312 (Iowa 2021). “We review the facts and the law and ‘adjudicate rights anew.’”
In re D.D., 955 N.W.2d 186, 192 (Iowa 2021) (citation omitted). We give
respectful consideration to the factual findings of the juvenile court, but they do
not predetermine our result. W.M., 957 N.W.2d at 305.
3

The juvenile court adjudicated J.O. as a CINA in November 2020. By then,

Nichole had started substance-abuse treatment. As for David, during the first

family team meeting, he shared a history of substance abuse but reported not

using methamphetamine since separating from Nichole. He acknowledged

marijuana use in the past month. The CINA order stated: “David wants to be

involved in the case but lives in Illinois. David needs to maintain contact with

providers.” In a December dispositional order, the court directed David to obtain

a substance-abuse evaluation.

The parents’ endeavors at reunification got off to a slow start. Nichole was

inconsistent in her interactions with J.O. Likewise, David did not maximize his

opportunities to have telephone and video contact with J.O., though his

consistency increased by mid-December. That month, a report from the Court

Appointed Special Advocate (CASA) documented the parents’ minimal progress.

The CASA noted that Nichole was sometimes distracted during visits with J.O.

And the grandmother revealed that Nichole had been stopping by to see J.O. less

often. David told the CASA in a phone call that he missed J.O., but it was hard for

him to travel to Mason City because he had a new baby in Illinois. David also said

he was “scared to travel right now due to COVID” but had been trying to

videoconference more often with J.O. He had paid some monthly child support to

Nichole, though he remained behind. And he sent the child gifts for his birthday

and Christmas.

The parents’ efforts remained lackluster in early 2021. By February, Nichole

stopped participating in substance-abuse treatment, telling service providers she

did not believe she had a problem with methamphetamine. And Nichole’s visits
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with J.O. were inconsistent, despite his placement with her mother. In the same

time frame, David fell out of touch with the DHS and service providers.

But David did maintain contact with his son through the maternal

grandmother. Yet despite the open lines of communication between David and

the maternal grandmother, David had only three in-person visits with J.O. during

the CINA case. Still, though small in number, the visits were high quality. The

DHS caseworker confirmed J.O. enjoyed his time with David. “When David comes,

he is very engaging with [J.O.], interacts with him, gets down on his level, plays

with him, usually like he indicated for Father's Day he brought him a gift.”

In May 2021, the State petitioned for termination of the parents’ rights, citing

Iowa Code section 232.116(1) (2021), paragraphs (e) and (h). At a trial in July,

the juvenile court heard from both parents, as well as the caseworkers.

Nichole acknowledged struggling with depression since her teens, but did

not believe that it prevented her from fully participating in the CINA case. She was

unemployed, which she attributed to the pandemic. Adding to her instability, she

was far behind on her rent payments. Nichole also discussed her history of

unhealthy relationships. Plus, she had pending criminal charges in Minnesota for

possession of methamphetamine and marijuana. She admitted using

methamphetamine about one month before the termination trial. Despite those

circumstances, she testified she did not need substance-abuse treatment.

David testified that he had steady employment and paid child support for

J.O. David also had stable housing, renting a home with his retired uncle. He had

a valid driver’s license, but his car had recently been totaled—which was one

reason it was hard to get to Mason City to visit J.O. He also testified he worked
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long hours but recently cut back to make time to visit with his younger son, who

lived in Illinois. David testified that he usually calls J.O. before he has those weekly

visits with his other son. He described a positive relationship with the maternal

grandmother, as well as “great” visits with J.O. “[H]e runs up to me, gives me a

hug, you know, he knows who I am. So, it hurts when I got to leave him.” That

said, David acknowledged he would need more time to prepare to be a full-time

father to J.O.

The DHS caseworker recommended the court terminate Nichole’s parental

rights because she “does not take ownership for her actions or her instability.” The

caseworker also recommended terminating David’s parental rights because his

focus was on his younger child, relegating J.O. to “the back burner.”

In its August order, the court granted the State’s petition on both statutory

grounds. The parents each appeal, but neither challenges the sufficiency of the

State’s proof under Iowa Code section 232.116(1).

II. Analysis

A. Nichole’s Appeal

Even when the State proves one or more grounds for termination, the

juvenile court may decline to sever the parent-child relationship if that severance

is not in the child’s best interests under section 232.116(2) or a permissive factor

in section 232.116(3) compels preservation of parental rights. See In re A.S., 906

N.W.2d 467, 472 (Iowa 2018) (describing three-step analysis of termination

cases). Nichole conflates those two steps, but basically she argues the court

should not have terminated her rights because (1) ending the parent-child
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relationship threatened J.O.’s long-term mental and emotional health because of

their close bond and (2) he was in the legal custody of the maternal grandmother.

On the best-interests challenge, courts must give “primary consideration to

the child’s safety,” to the best placement for furthering his long-term nurturing and

growth, and to his physical, mental, and emotional condition and needs. See In re

P.L., 778 N.W.2d 33, 39 (Iowa 2010) (discussing section 232.116(2)). Here,

because Nichole denies her substance-abuse problem, she cannot provide J.O.

with a safe home. Her inability to keep a consistent visitation schedule, even when

her child lives with her mom in the same town, also bodes poorly for meeting J.O.’s

long-term physical and emotional needs.

On the permissive factors weighing against termination, Nichole has not

proved the closeness of her relationship with J.O. or his placement with the

maternal grandmother require preservation of her parental rights. See A.S., 906

N.W.2d at 476–77 (holding parent resisting termination has burden to prove factors

under section 232.116(3)). Nichole argues J.O. is “happy every time he sees [her]

and he also wanted to leave with [her] every time.” But the grandmother reported

that J.O.’s relationship with Nichole had been deteriorating and when she missed

visits, he “rarely asked for his mother anymore.” So Nichole did not offer clear and

convincing evidence that the termination would be detrimental to J.O. because of

the closeness of their relationship. See Iowa Code § 232.116(3)(c).

We also do not believe that placement with the grandmother dictated a

different outcome. Section 232.116(3)(a) comes into play only when a relative has

“legal custody.” See In re A.B., 956 N.W.2d 162, 170 (Iowa 2021). It does not

apply when, as here, the DHS has legal custody and a maternal grandparent is
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caring for the child. In re A.M., 843 N.W.2d 100, 113 (Iowa 2014). Even if the

maternal grandmother had legal custody, Nichole has not shown that circumstance

weighed against the sound reasons for terminating her parental rights.

On a related note, Nichole contends the court could ensure J.O.’s safety

and well-being by creating a guardianship with the grandmother. His young age

and the grandmother’s objection to the uncertainty of that arrangement weigh

against creating a guardianship for J.O. See In re W.M., 957 N.W.2d 305, 315

(Iowa 2021) (reiterating guardianship is not legally preferred alternative to

termination of parental rights).

Finally, we reject Nichole’s request for six more months to work toward

reunification. Under section 232.117(5), the juvenile court may order an extension

of permanency for up to six months under section 232.104(2)(b) as an alternative

to terminating parental rights. See In re N.J., No. 19-1999, 2020 WL 2988237, at

*3 (Iowa Ct. App. June 3, 2020). Such an extension is appropriate if the juvenile

court can point to “specific factors, conditions, or expected behavioral changes”

that justify believing the need for removal from parental care would no longer exist

after that time. Iowa Code § 232.104(2)(b). Nichole’s situation did not suggest an

extension of six months would resolve her serious parenting deficiencies. She did

not see the need for substance-abuse treatment and used methamphetamine

about a month before the termination trial. This record supports the juvenile court’s

decision to terminate her parental rights.

B. David’s Appeal

At trial, David also asked for more time to work toward reunification. Making

the case for that extension, his attorney argued:
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David has been going through some other personal matters in
Illinois. He’s just recently reduced his hours at work so that he could
have more time. He started to begin some more face-to-face contact
with [J.O.]. I believe that additional time is warranted as it relates to
[David]. He’s also paying child support and able to contribute in other
ways.

On appeal, he renews that call. David emphasizes that he is paying

support, has positive interactions with J.O., and can effectively communicate with

the grandmother to set up more visits with his son. He also points to his stable

housing and employment. He argues “it is reasonable to believe that given

additional time, [he] could be in a position to parent [J.O.] on a full-time basis.”

We agree with David that the circumstances warrant a six-month extension.

He has changed his behavior in ways that signal his ability to be a full-time parent

to J.O. For example, David secured steady employment and stable housing. He

is paying child support and steadily resolving his arears. He also demonstrated

his commitment and forethought by bringing J.O. a birthday gift and sending a

package of gifts for Christmas. Most important, David has displayed positive

parenting skills and an ability to fully engage with J.O. during their visits. J.O.

values the time they spend together. And David has developed an amicable

relationship with the maternal grandmother and has arranged in-person and video

visits with his son through her. Admittedly, the visits have been few. But the record

shows David faced the difficulty of traveling the distance between East Moline and

Mason City—made even more onerous by the health concerns of the pandemic

and his totaled car.

Other than the limited visits, the professionals in the case did not identify

any particular parenting deficiencies on David’s part. The caseworker described
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David as “open and honest” about his life challenges but acknowledged he was

loving and interacted well with J.O. The worker also noted that about six weeks

before the termination trial, David “ended the relationship with his previous

paramour, which had been kind of a deterrent to his ability to interact and do things

with [J.O.].”

On the other side of the fulcrum, the termination order cited two concerns

about David. First, the juvenile court mentioned David’s admission to “occasional

alcohol and marijuana use.” But nothing in the record suggests that substance

abuse was an ongoing concern. Second, the court referenced custody litigation

between David and the mother of his younger son, including her application for a

restraining order. David testified at the termination trial that he had not yet had a

hearing on that application but was working with a lawyer to expand his visitation

with his younger son. David also testified that he usually tries to call J.O. before

he goes to see J.O.’s brother. David’s testimony debunked the caseworker’s

impression that he purposely placed J.O. on the “back burner” as he developed a

relationship with his younger son.

Given David’s emerging potential to be a safe and stable parent for J.O.,

we find he deserves a more coordinated plan to reunite with his son. Most of the

DHS efforts here focused on Nichole and her substance-abuse struggles.

Services for David were an afterthought. During the next six months, while J.O. is

still adjudicated as a CINA, the DHS should work with David and the maternal

grandmother to develop a visitation plan that serves J.O.’s best interests. David

should also obtain a substance-abuse evaluation to allay the DHS concerns about

his drug and alcohol use. Likewise, David should undergo a mental-health
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evaluation to assess whether he needs any follow-up services to be a safe parent.

During this extension, David must prove his professed commitment to being an

independent caretaker for the child.

Because we grant the extension of permanency to David, we do not address

his argument that termination is not in J.O.’s best interests. That is not to say we

are overlooking J.O.’s best interests. We understand a delay in permanency may

affect J.O.’s sense of security. But we believe any negative impact is lessened by

the familiar placement with his grandmother. “While time is of the essence in

achieving permanency for children, we cannot lose sight of the competing principle

that termination is an outcome of last resort.” See In re M.M., No. 19-1293, 2019

WL 5791290, at *3 (Iowa Ct. App. Nov. 6, 2019) (altered for readability) (citation

omitted). David deserves a chance to keep building his parenting skills and his

relationship with J.O. before the case reaches that last resort.

III. Summary

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

But we find the juvenile court should have granted David a six-month extension

rather than terminate his parental rights. We reverse the termination order as to

the father and remand for further proceedings.

MOTHER’S APPEAL AFFIRMED; FATHER’S APPEAL REVERSED AND

REMANDED.