In the Interest of J.L.M., Minor Child, C.L., Mother

IN THE COURT OF APPEALS OF IOWA

No. 14-0882
Filed August 27, 2014

IN THE INTEREST OF J.L.M.,
Minor Child,

C.L., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Emmet County, Ann M. Gales,

District Associate Judge.

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

Melinda L. Roman, Spirit Lake, for appellant.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant

Attorney General, Douglas Hansen, County Attorney, and Rosalise Olson,

Assistant County Attorney, for appellee.

Jennifer Bennett Finn of Pelzer Law Firm, Estherville, for father.

Shannon Sandy of Sandy Law Firm, P.C., Spirit Lake, attorney and

guardian ad litem for minor child.

Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
2

MULLINS, J.

A mother appeals from termination of her parental rights to J.L.M. under

Iowa Code sections 232.116(1)(d), (f), and (i) (2013). She contends the juvenile

court should have granted her an additional six months to achieve reunification

and erred in finding the child could not be returned to her care, that termination

was in the child’s best interest, and that no statutory exception applied.

The child in interest, J.L.M., is eight years old. Prior to the involvement of

the Iowa Department of Human Services (DHS), the child resided with her

mother and her mother’s boyfriend. The child came to the attention of DHS in

November of 2012 when a family friend brought her to the hospital with a vaginal

rash and bleeding. After a sexual assault examination, medical personnel

determined J.L.M. had herpes simplex virus type 2 (HSV-2), a sexually-

transmitted disease,1 and evidence of vaginal assault. The mother and her

boyfriend both submitted to testing and both also were positive for HSV-2. The

juvenile court ordered the child removed from the mother’s home and placed her

with a foster family with whom she has resided throughout this case. After

seeing a child therapist, the child disclosed the mother’s boyfriend had sexually

assaulted her repeatedly. The boyfriend was arrested and charged with Sexual

Abuse in the Second Degree, a class “B” felony. The district court entered a

criminal no-contact order between the boyfriend and the child and her foster

1
The evidence at the termination hearing indicated a child could obtain HSV-2 at birth or
through sexual transmission. The mother’s and child’s medical records indicated neither
suffered from HSV-2 at the time of birth. The child also had not suffered from herpes-
related symptoms much prior to November 2012.
3

family. At the time of the termination hearing, the boyfriend was in jail awaiting

trial.

Throughout most of the case, the mother refused to believe the boyfriend

sexually assaulted the child. The mother repeatedly accused the child of lying

and making up stories. The child reported when she told the mother about the

abuse, the mother grew angry at her, slapped her in the face, and refused to

believe her. The mother continued living with the boyfriend until July 2013—

more than seven months after the child was removed from her care—but DHS

believed the mother continued to have contact with the boyfriend until September

2013. On one occasion, the mother and boyfriend ran into the child and her

foster parents in public and approached them. On another occasion, during a

visitation, the mother called the boyfriend on her cellphone and forced the child to

speak to him. At a joint therapy session with J.L.M. and the mother, the mother

failed to listen to or acknowledge the abuse and J.L.M.’s concerns and feelings.

At the termination hearing, the mother stated for the first time she now believed

the boyfriend abused the child. The juvenile court stated it, “assign[ed] no

credibility to this testimony” and “[the mother’s] explanation for this change of

heart was nonsensical.”

The family case plan required the mother to (1) demonstrate her ability to

provide a safe environment for J.L.M., safe from sexual abuse and support J.L.M.

through the process of therapy; (2) improve her protective capacities and

parenting; and (3) not reside with the boyfriend, establish safe housing, and

demonstrate her ability to provide for J.L.M.’s food, housing, and clothing needs.

The DHS worker testified the mother made little progress toward reunification.
4

Throughout the case the mother has been either unemployed or intermittently

employed as a housecleaner. Prior to July 2013, she was essentially entirely

dependent upon the boyfriend for financial support. Since then, she has relied

mostly on churches and charities. Between July 2013, when she stopped living

with the boyfriend, and the March 2014 termination hearing, she gave DHS six

different home addresses. At the time of the termination hearing, she had

secured a one-bedroom apartment but had no furniture for J.L.M. She has no

driver’s license or vehicle. Her phone number has changed repeatedly, and she

has been unreachable on occasion. During her once-per-week visitation, the

DHS workers were concerned about her ability to protect and parent the child.

She seemed to interact very little with the child and occasionally said

inappropriate things to her, for example, threatening to pick J.L.M. up from the

foster home and take her back to the boyfriend’s home. The DHS worker had

little confidence in the mother’s ability to provide for J.L.M.’s basic needs.

The DHS workers and the foster parents testified J.L.M. has formed a

strong bond with the foster parents and their four children and has been thriving

in their home. She considers the foster parents “mom” and “dad” and their

children “sisters.” The foster parents have provided a safe and loving home and

want to adopt J.L.M. They have been open about discussing and acknowledging

the abuse she has suffered. She has voluntarily discussed the abuse with them.

They have taken particular care to give her appropriate treatment for her herpes

outbreaks. J.L.M. has stated on multiple occasions she wishes to remain at

“home” with her foster parents and does not think her mother can take care of

her or keep her safe.
5

The State filed a petition to terminate parental rights in November 2013,

when J.L.M. had been out of the mother’s care for over a year. The hearings on

the petition to terminate were March 11 and 12, 2014. The juvenile court

terminated the mother’s parental rights under Iowa Code sections 232.116(1)(d),

(f), and (i). The mother appeals.

We review termination of parental rights proceedings de novo. In re A.B.,

815 N.W.2d 764, 773 (Iowa 2012). We give weight to the factual determinations

of the juvenile court, especially with regard to witness credibility, but are not

bound by them. Id. Our primary consideration is the best interest of the child.

Id. at 776. In determining whether to terminate parental rights, the juvenile court

follows a three-step analysis. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). First,

the court must determine if a statutory ground for termination exists under Iowa

Code section 232.116(1). Id. Second, the court must give consideration to the

child’s best interests. See Iowa Code § 232.116(2); P.L., 778 N.W.2d at 39.

Finally, the court need not terminate parental rights if it finds any of the statutory

exceptions under Iowa Code section 232.116(3) apply. P.L., 778 N.W.2d at 39.

The mother contends the juvenile court should have granted her additional

time to work toward reunification. Under Iowa Code section 232.104(2)(b), the

juvenile court may enter an order to continue placement of the child for an

additional six months with a view toward reunification. Such order must state

“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.” Iowa

Code § 232.104(2)(b).
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The mother does not state why the court should give her an additional six

months. Although she secured an apartment and some work, she has no

transportation and has little means by which to support herself or a child. Most

importantly, she does not acknowledge the abuse J.L.M. has suffered. She

demonstrates no protective capacity in that regard. There is nothing in the

record to indicate the mother will be able to resume care of J.L.M. within six

months.

The mother next argues the court erred in finding there was clear and

convincing evidence the child could not be returned to her. Although the juvenile

court terminated her parental rights on three separate statutory grounds, the

mother challenges only one of the three grounds on her appeal. 2 When the

juvenile court terminates parental rights on more than one statutory ground, we

need only find termination proper under one ground to affirm. In re S.R., 600

N.W.2d 63, 64 (Iowa Ct. App.1999). The mother's failure to raise the remaining

two statutory grounds for termination waives any claim of error related to those

grounds. See Hyler v. Garner, 548 N.W .2d 864, 870 (Iowa 1996) (stating “our

review is confined to those propositions relied upon by the appellant for reversal

on appeal”). We affirm the juvenile court's order terminating the mother's

parental rights pursuant to section 232.116(1)(i).3

2
The mother asserts “The Court erred in finding there was clear and convincing
evidence the child could not be returned to the mother.” This is an element of proof for
termination pursuant to Iowa Code section 232.116(1)(f) only. See Iowa Code
§ 232.116(1)(f)(4). Therefore, the mother advances no challenge to termination of her
parental rights under Iowa Code sections 232.116(1)(d) or (i).
3
Although there was no appeal from the termination under section 232.116(1)(d), we
decline to affirm on this ground, as the facts clearly show as a matter of law there was
no previous adjudication as required in 232.116(1)(d)(1). A summary of selected
7

The mother next argues the court erred in finding it was in the child’s best

interest to terminate parental rights. Under Iowa Code section 232.116(2), in

considering whether to terminate parental rights, 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.” “Insight for the determination of the child’s long-range best

interests can be gleaned from evidence of the parent’s past performance for that

clauses of each subsection of 232.116(1) helps illustrate the significance of the
requirement for a previous adjudication under (d):
(a) Parent’s consent
(b) Child has been abandoned or deserted
(c) Newborn infant voluntary released
(d) Court previously adjudicated CINA, parents offered or received services,
circumstance continues to exist
(e) Child has been adjudicated CINA, removed for statutory time, parents lack
significant and meaningful contact
(f) Child four years or older has been adjudicated CINA, removed for statutory
time, cannot be returned
(g) Child has been adjudicated CINA, court has terminated as to another child
of family, parent unable or unwilling to respond to services, additional delay
would not correct
(h) Child three years or younger has been adjudicated CINA, removed for
statutory time, cannot be returned
(i) Child meets CINA definition based on abuse or neglect, significant risk to life
or imminent danger, services would not correct in reasonable time.
(j) Child has been adjudicated CINA, parent imprisoned for crime against child
and unlikely to be released for at least five years,
(k) Child has been adjudicated CINA, parent with mental illness and
dangerous, prognosis prevents return of child in reasonable time
(l) Child has been adjudicated CINA, parent with severe substance abuse and
dangerous, and prognosis prevents return of child in reasonable time
(m) Child has been adjudicated CINA, parent convicted of felony and
imprisoned for abuse or neglect of child
(n) Child has been adjudicated CINA, parent convicted of specified child
endangerment crimes, imminent danger to child
(o) Parent convicted of felony sex offense on minor, other circumstances,
minimum confinement of at least five years
From the foregoing it is clear that subsection (1)(d) was tailored by the legislature to
allow termination without a current CINA determination, instead based on a previous
adjudication, where services were offered and circumstances continue to exist. In the
present case there was no previous adjudication, only the adjudication that led directly to
the filing of the termination petition and the ruling that is the subject of this appeal.
8

performance may be indicative of the quality of the future care that parent is

capable of providing.” A.B., 815 N.W.2d at 778 (internal quotations and citations

omitted).

The mother does not state why it is not in the child’s best interest to

terminate her parental rights. Given her unwillingness to believe her boyfriend

sexually abused J.L.M., the trauma this has caused to J.L.M., and the extent to

which J.L.M. has become integrated into her safe and loving foster family, it is

clear her safety; her long-term nurturing and growth; her physical, mental and

emotional needs; and her own wishes are best secured by termination of the

mother’s parental rights.

The juvenile court need not terminate parental rights if it finds any of the

statutory exceptions under section 232.116(3) apply. P.L., 778 N.W.2d at 39.

The factors weighing against termination are permissive, not mandatory. In re

A.M., 843 N.W.2d 100, 113 (2014). “The court has discretion . . . whether to

apply the factors in this section to save the parent-child relationship.” In re D.S.,

806 N.W.2d 458, 475 (Iowa Ct. App. 2011). The mother does not specify which

statutory exception she believes applies to her case. The juvenile court did not

find any exception applied, and the mother did not request the juvenile court

make any such finding. On our de novo review, we find no exception is

applicable.

The juvenile court terminated the mother’s parental rights in a ruling with

an exceptionally detailed and thorough factual analysis. On our de novo review,

we affirm.

AFFIRMED.