In the Interest of J.B., Minor Child, S.M., Mother

IN THE COURT OF APPEALS OF IOWA

No. 14-1665
Filed January 14, 2015

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

S.M., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

District Associate Judge.

A mother appeals from the order terminating her parental rights.

AFFIRMED.

Ronald E. Langford of Langford Law Office, L.L.C., Des Moines, for

appellant mother.

Magdalena Reese of Cooper, Goedicke, Reimer & Reese, West Des

Moines, for father.

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

Attorney General, John P. Sarcone, County Attorney, and Christina Gonzalez,

Assistant County Attorney, for appellee State.

Michelle R. Saveraid of the Youth Law Center, Des Moines, for minor

child.

Considered by Danilson, C.J., and Doyle and Tabor, JJ.
2

DANILSON, C.J.

A mother appeals1 the termination of her parental rights pursuant to Iowa

Code section 232.116(1)(d), (f), and (i) (2013). She challenges a finding made in

the child-in-need-of-assistance (CINA) adjudication order, which was entered on

February 27, 2013. She also challenges evidentiary rulings made during the

termination trial. Because statutory grounds exist to terminate the mother’s

parental rights, and because termination is in the best interests of the child, we

affirm. The child has long been absent from the family home, and the mother

continues to associate with individuals of suspect character and recently has

been subject to criminal prosecution for a drug offense.

I. Background Facts.

J.B. was born in Iowa in September 2006. In 2009, his mother and

maternal grandmother moved with J.B. to Georgia. In August 2011, the mother

sent J.B. back to Iowa to live with his paternal grandmother so the child could

attend school here. In February 2012, the mother moved to North Carolina,

assisting her sister with the sister’s newborn. She made telephone calls to the

child about once per week while he was living in Iowa. She remained in North

Carolina until February 2013.

On October 28, 2012, J.B.’s father, who was apparently then residing in

his mother’s house in Iowa where the child resided, was arrested for violation of

probation and drug and weapons-related offenses, which brought the child to the

attention of the department of human services (DHS).

1
The father’s parental rights were also terminated. He did not appeal.
3

A removal order was entered on January 14, 2013, and the child was

adjudicated a CINA on February 27, 2013. In the CINA adjudication order, the

court found:

[p]lacement outside the parental home is necessary because
continued placement in or a return to the home would be contrary
to the child’s welfare due to father’s criminal charges involving drug
dealing, child’s report of father’s [and] relatives using in child’s
home, Mother’s abandonment of the child for past 14 months, her
failure to provide for child’s basic needs and protection. Further,
father of mother’s other child also has drug trafficking convictions.
Court finds Mother knew of Father’s drug use when she left the
child in his mother’s care.

The child was placed in the DHS’s custody and in the paternal grandmother’s

care, with the condition that all persons living in the residence would submit to

urinalysis (UA), and other placement would be considered if any were found to

have submitted a “dirty” UA. The mother did not appeal.

The mother returned to her mother’s home in Georgia in February 2013.

On March 7, she filed a motion to reopen the adjudicatory hearing and modify the

order, contending her “interests were not fully represented” and the child should

be placed with her in Georgia. The mother participated in the March 27, 2013

disposition hearing by telephone. Following the contested disposition

proceeding, the juvenile court denied the mother’s motion to reopen the record,

finding “a meaningful adjudication was held.”

The court also specifically found:

Mother failed to provide a hair stat as previously [ordered] because
she believed it was “unfair.” Mother was informed missed hair stats
and UAs would be considered positive. The evidence presented
shows Mother has a history of associating with criminals and has a
history of domestic violence which she failed to report. Mother
failed to complete the social history so little is know[n] of needed
services.
4

The court further found out-of-home placement continued to be necessary

because of “Mother’s lack of insight into the criminals she chooses to associate

with, her abandonment of this child, and history of unresolved domestic violence

issues.” The mother did not appeal.

The mother continued to have telephone contact with the child. The child

has received services through DHS and the juvenile court, including therapy

since March 2013 with psychologist Kyle Kuhlman, who diagnosed the child with

an adjustment disorder and possible attention deficit hyperactivity disorder

(ADHD). Later consultation with other mental health professionals supported the

diagnosis of ADHD.

The mother appeared at the September 23, 2013 review hearing. The

court found out-of-home placement continued to be necessary, noting “mother’s

failure to safely supervise child, mother exposing child to domestic violence and

illegal drug activity, mother has not been involved in child’s life for two years.”

The mother thereafter relocated to Iowa and—beginning in October 2013—

attended the child’s therapy sessions. In a December 9, 2013 letter to DHS

social worker Austin Munoz, Kuhlman reported the child had “a strong and

positive bond with his mother and his paternal grandmother” and noted the

understanding that DHS was recommending increased visit times with the

mother. In November 2013, the mother began participating in outpatient mental

health therapy with a “treatment plan consist[ing] of identifying and establishing

healthy and safe relationships in her family’s life and in her personal relationships
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and developing additional ways to cope with stress.” In December, she began

receiving domestic violence services from Children & Families of Iowa.

A permanency hearing was scheduled and began on January 16, 2014.

The hearing was continued and set to reconvene in April. However, the child’s

guardian ad litem filed a petition to terminate parental rights on January 16, and

the parties agreed to combine the permanency and termination proceedings.

During a traffic stop on March 20, 2014, the mother was arrested for

possession of a bag of marijuana found under her seat. When she was in the

patrol car, she attempted to discard a small plastic bag of marijuana in the rear

seat. She admitted to police she had smoked marijuana with the occupants of

the vehicle, two of whom had extensive criminal backgrounds. The mother was

taken into custody and, from the jail the mother telephoned a woman (she later

identified the woman as her aunt, Meegan Lee) whose first question was “did you

get rid of it?” The woman told the mother to go to the toilet in the corner not

visible by surveillance cameras, wrap “it” in toilet paper, and flush it away. The

mother called the woman back after she went through the booking procedure and

told the woman to go get the mother’s other child from her grandmother’s house,

assuring the woman that the grandmother was deaf and would not hear her.

The permanency hearing/termination trial was held on April 10, May 9,

May 19, and July 7, 2014. The recordings of the jail phone calls were introduced

at the permanency/termination trial after the mother had testified she had left her

other child in her aunt’s care on the night she was arrested. When asked what

she was going to wrap in toilet paper and dispose of, the mother invoked the Fifth

Amendment. The mother testified that on at least three separate dates, she and
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the father of her other child were involved in violent encounters, but insisted J.B.

was not “exposed” to domestic violence because he was in another room.

Evidence at trial indicated J.B. was having behavioral control difficulties at

school. The mother continued to resist having him placed on medication for

ADHD, although Kuhlman reported the child “demonstrated improvements with

attention, focus, and work completion at school” during a one-week trial period on

medication. On May 19, the mother acknowledged the child had not been able to

attend a full day of school for three to four weeks due to his acting-out behaviors.

The juvenile court found the mother lacked credibility and that she

“minimizes her substance abuse and domestic violence issues.” The court

terminated her parental rights pursuant to Iowa Code section 232.116(1)(d), (f),

and (i). The mother appeals.

II. Scope and Standard of review.

Our review of termination proceedings is de novo. In re A.M., 843 N.W.2d

100, 110 (Iowa 2014).

III. Discussion.

In In re P.L., 778 N.W.2d 33, 39 (Iowa 2010), the supreme court explained

that we conduct a three-step analysis of termination of parental rights. We first

determine if a ground for termination exists under section 232.116(1). “If a

ground exists, the court may terminate a parent’s parental rights.” P.L., 778

N.W.2d at 39. If a ground for termination exists, the second step in the analysis

is to determine if termination is in the child’s best interests. Id. Statutorily we are

to “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,
7

mental, and emotional condition and needs of the child.” Iowa Code

§ 232.116(2). Third, before terminating a parent’s parental rights, the court must

consider if any of the exceptions contained in section 232.116(3) allow the court

not to terminate. P.L., 778 N.W.2d at 39.

We may affirm the juvenile court’s termination order on any ground that

we find supported by clear and convincing evidence. In re D.W., 791 N.W.2d

703, 707 (Iowa 2010).

Under section 232.116(1)(d) termination may be ordered if the court finds

that both of the following have occurred:

(1) The court has previously adjudicated the child to be a
child in need of assistance after finding the child to have been
physically or sexually abused or neglected as the result of the acts
or omissions of one or both parents, or the court has previously
adjudicated a child who is a member of the same family to be a
child in need of assistance after such a finding.
(2) Subsequent to the child in need of assistance
adjudication, the parents were offered or received services to
correct the circumstance which led to the adjudication, and the
circumstance continues to exist despite the offer or receipt of
services.

The mother challenges the juvenile court’s finding that she abandoned the

child, which was made during the CINA proceedings. The challenge to the

finding of abandonment could have and should have been made by appeal from

the dispositional order entered after the CINA adjudication and it cannot be

raised here. See In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994)

(noting that principles of res judicata preclude a court from relitigating an issue

that has previously been decided); In re J.B., 584 N.W.2d 577, 581 (Iowa Ct.

App. 1998) (finding mother’s failure to appeal from any of the CINA proceedings

waived deficiencies in those proceedings).
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The court found the mother had been offered services (including, among

others, parenting classes; therapy for child and parent; visitation; and Family

Safety, Risk, and Permanency Services), but “despite the services offered,

Mother continues to associate [with] unsafe persons and has engaged in criminal

behavior while with those individuals. Mother’s recent behavior was after the

termination petition was filed, with her knowing what was at stake regarding the

possible termination of her parental rights.”

Disregarding any issue of abandonment, section 232.116(1)(f) provides

that termination may be ordered when there is clear and convincing evidence

that a child four years of age or older who has been adjudicated a CINA and

removed from the parents’ care for at least the last twelve consecutive months

cannot be returned to the parents’ custody at the time of the termination hearing.

The mother does not challenge the court’s termination of her parental rights

pursuant to section 232.116(1)(f), except to the extent of the evidentiary

objections. Consequently, we need not discuss the first step in our analysis.

See P.L., 778 N.W.2d at 40. We stress, however, the child has been out of his

parents’ custody since January 2013. In In re J.C., ___ N.W.2d ___, ___, 2014

WL 7338505, at *5-6 (Iowa Dec. 26, 2014), our supreme court recently

emphasized the need for prompt resolution of juvenile proceedings:

A permanency hearing “for a child subject to out-of-home
placement” must “be held within twelve months of the date the child
was removed from the home.” Iowa Code § 232.104(1)(a)(1); see
also id. § 232.104(1)(a)(2) (requiring a permanency hearing within
thirty days if “the court has waived reasonable efforts requirements
under section 232.102”). Our statutes and court rules reflect the
understanding that promptly resolved juvenile proceedings best
serve children’s interests.
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Courts are obliged to move urgently to achieve the ends that
will best serve the child’s interests because childhood does not
“await the wanderings of the judicial process.”

The statutory timeframe has been exceeded. The child’s need for permanency

must be acknowledged.

Turning to the mother’s evidentiary objections, the juvenile court admitted

the police report of the mother’s arrest pursuant to Iowa Code section 232.96(6).2

We reject the mother’s current challenge that the police report was not self-

authenticating because that contention was not made to the juvenile court and,

therefore, is not properly before us. See Meier v. Senecaut, 641 N.W.2d 532,

537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues

must ordinarily be both raised and decided by the district court before we will

decide them on appeal.”).

The mother contends the juvenile court erred in admitting the recordings

of her jail telephone conversations and the June 14, 2014 FSRP report.

Generally, evidentiary rulings are reviewed for an abuse of discretion. In re N.N.,

692 N.W.2d 51, 54 (Iowa Ct. App. 2004) (noting that although scope of review

was de novo, evidentiary rulings were reviewed for an abuse of discretion).

However, the mother provides no specific argument for either claim. We

therefore do not consider them. See State v. Mann, 602 N.W.2d 785, 788 n.1

2
Section 232.96(6) states:
A report, study, record, or other writing . . . made by . . . a peace
officer . . . relating to a child in a proceeding under this division is
admissible notwithstanding any objection to hearsay statements
contained in it provided it is relevant and material and provided its
probative value substantially outweighs the danger of unfair prejudice to
the child’s parent, guardian, or custodian. The circumstances of the
making of the . . . writing . . . including the maker’s lack of personal
knowledge, may be proved to affect its weight.
10

(Iowa 1999) (stating that “random mention of an issue, without elaboration or

supporting authority, is insufficient to raise issue for appellate court’s

consideration”); Soo Line R.R. Co. v. Iowa Dep’t of Transp., 521 N.W.2d 685,

689 (Iowa 1994) (refusing to consider an issue when party cited no authority and

offered no substantial argument in support of the issue). Moreover, she does not

explain how either of the asserted errors impacts termination of her parental

rights pursuant to section 232.116(1)(f).3

The mother’s current argument is that the paternal grandmother is an

unsuitable guardian. This is the same person to whom the mother entrusted the

care of her child in 2011 and in whose care the child remains. The grandmother

is currently complying with the expectations of the juvenile court and has

participated in services with the child. She is willing to provide a permanent

home for the child. Giving primary consideration to “the child’s safety, . . . the

best placement for furthering the long-term nurturing and growth of the child, and

. . . the physical, mental, and emotional condition and needs of the child,” Iowa

Code § 232.116(2), we conclude termination of the mother’s parental rights and

adoption will best provide J.B. with the permanency the child desperately needs

and deserves.

The mother does not assert any—and this court finds no—exception

contained in section 232.116(3) weighs against termination of parental rights.

We therefore affirm.

AFFIRMED.

3
The mother contends the court erroneously found she abused marijuana, citing section
232.116(1)(l). The juvenile court did not terminate her rights under that provision.