In the Interest of K.B., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 24-1734
Filed January 23, 2025

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

D.E., Mother,
Appellant,

M.B., Father,
Appellant.
________________________________________________________________

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

Judge.

The mother and father separately appeal the termination of their respective

parental rights. AFFIRMED ON BOTH APPEALS.

Robert W. Davison, Cedar Rapids, for appellant mother.

Kristin L. Denniger, Mount Vernon, for appellant father.

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

General, for appellee State.

Michael Lindeman, Cedar Rapids, attorney and guardian ad litem for minor

child.

Considered by Greer, P.J., and Buller and Langholz, JJ.
2

GREER, Presiding Judge.

The mother and father of K.B., born in 2021, separately appeal the

termination of their parental rights. Both parents challenge the statutory grounds

and argue termination of their respective parental rights is not in K.B.’s best

interests because of the closeness of each parent’s relationship with the child.

Our review is de novo. In re A.H., 950 N.W.2d 27, 33 (Iowa Ct. App. 2020).

It is confined to those issues that—after being properly preserved—are actually

raised and briefed on appeal by the parent challenging termination. See Hyler v.

Garner, 548 N.W.2d 864, 870 (Iowa 1996). Because “each parent’s parental rights

are separate adjudications, both factually and legally,” we consider each parent’s

appeal separately. In re J.H., 952 N.W.2d 157, 171 (Iowa 2020) (citation omitted).

I. Mother’s Appeal.

The juvenile court terminated the mother’s parental rights to K.B. pursuant

to Iowa Code section 232.116(1)(g) and (h) (2024). The mother challenges the

statutory grounds and argues the loss of her rights is not in the child’s best interests

because of the closeness of the parent-child relationship.

Before we can consider the merits of the mother’s claims challenging

termination, we must first determine whether the mother failed to preserve error on

or waived her claims. As the State points out, the mother did not personally attend

the termination hearing, and her attorney did not convey even a general resistance

on the mother’s behalf.1 Additionally, the mother’s attorney presented no evidence

1 The hearing was a combined child-in-need-of-assistance (CINA) review and a

termination hearing. At the beginning, the court said, “We will handle the review
first and then proceed to the termination matter,” before asking each attorney for
their position as to the review hearing. When the court got to the mother’s attorney,
3

and did not cross-examine the one witness who was called (the case manager

from the Iowa Department of Health and Human Services).

We recently recognized that there was “‘some tension in our cases’

regarding what a parent must do to protect their right to appeal a termination of

parental rights.” In re J.R., No. 24-0942, 2025 WL 52738, at *1 (Iowa Ct. App. Jan.

9, 2025) (en banc) (citation omitted). So, we clarified that “there is no categorical

rule that a parent must personally participate in a termination hearing to preserve

error or prevent a waiver on appeal” and recognized that “[w]hile issues generally

must be raised in and decided by the juvenile court before they are raised on

appeal, that is not the case when a parent argues the State failed to meet its

burden of proof.” Id. at *1, *2. That said, in J.R., we noted the attorney for the

absent mother “relayed the mother’s general resistance to termination and her

preference for a guardianship” and “also cross-examined the social worker from

the Iowa Department of Health and Human Services.” Id. at *1. We explicitly “[did]

not reach the issue of whether the mere appearance of a parent’s attorney is

enough to clear the preservation and waiver hurdles because that [was] not the

situation in the case before us.” Id. at *1 n.1. That issue is now squarely before

us in this case.

he stated, “Your Honor, during my brief representation of my client, I’ve had one
very brief phone call, so I would offer no position today.” After hearing from the
rest of the attorneys, the court stated, “Thank you. Today, prior orders will continue
pending the outcome of the termination trial, and we will proceed to that matter.”
The State attributes the attorney’s comment that he “offer[ed] no position”
to the mother’s stance on whether the termination petition should be granted. We
do not agree with that characterization; we understand the comment to be limited
to the review proceedings. Still, the mother’s attorney was not asked to make a
statement or take a stance on behalf of the mother once the termination
proceedings began, and the attorney did not volunteer one.
4

Here, although the mother did not make even a general resistance to

termination, we conclude she did not waive or fail to preserve at least some of her

claims on appeal. The mother did not consent to termination, cf. Iowa Code

§ 232.116(1)(a), and the juvenile court’s ruling shows it understood that the

termination petition was resisted by the mother—it considered whether the State

introduced sufficient evidence to grant the termination petition on the statutory

grounds alleged. See In re A.S., 906 N.W.2d 467, 476 (Iowa 2018) (recognizing

the State has the burden to prove a statutory ground for termination). While neither

the mother nor her attorney did anything to test the quantum or quality of the

State’s evidence, even in the face of the mother’s silence, the State retained the

evidentiary burden to put forth sufficient evidence to establish a ground for

termination and that termination of the parents’ rights was in the child’s best

interests. See In re A.R., 316 N.W.2d 887, 888 (Iowa 1982) (considering whether

the State proved the elements of the statutory ground for termination even though

the mother failed to raise the issue in the juvenile court); see also In re W.T., 967

N.W.2d 315, 322 (Iowa 2021) (“The State must prove termination was proper by

clear and convincing evidence.”).

Like this court concluded in J.R., we decide the mother may challenge the

first two steps of the termination analysis—whether a statutory ground was proved

and if termination of her rights is in the child’s best interests—despite her lack of

action at the termination hearing. See 2025 WL 52738, at *2; see also Iowa R.

Civ. P. 1.904(1) (“The court trying an issue of fact without a jury . . . shall find the

facts in writing, separately stating its conclusions of law, and direct an appropriate

judgment. A party, on appeal, may challenge the sufficiency of the evidence to
5

sustain any finding without having objected to it by motion or otherwise.”); A.R.,

316 N.W.2d at 888 (holding now-rule 1.904(1) applies to juvenile proceedings).

So, we proceed to the mother’s argument the State failed to establish a

statutory ground for termination. The juvenile court determined there was clear

and convincing evidence to terminate the mother’s parental rights under

paragraphs (g) and (h) of Iowa Code section 232.116(1). When the juvenile court

terminates parental rights on more than one ground, we may affirm on any ground

we find supported by the record. In re A.B., 815 N.W.2d 764, 774 (Iowa 2012).

We choose to review termination under section 232.116(1)(h), which allows the

juvenile court to terminate when it finds all the following:

(1) The child is three years of age or younger.
(2) The child has been adjudicated [CINA] pursuant to section
232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least six months of the last twelve months,
or for the last six consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that the child
cannot be returned to the custody of the child's parents as provided
in section 232.102 at the present time.

The mother challenges only the fourth element—whether K.B. could be returned

to her at the time of the termination hearing. See Iowa Code § 232.116(1)(h)(4);

see also In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (applying element four to

mean “at the time of the termination hearing”).

The family came to the attention of the Iowa Department of Health and

Human Services this time2 in December 2022 based on allegations the father was

using cocaine and methamphetamine and acting as a caretaker for K.B. Both

2 The mother’s parental rights were terminated to another child in January 2020.
6

parents agreed to complete drug testing; the mother’s hair tested positive for

methamphetamine, while the father tested positive for methamphetamine and

amphetamine. One-year-old K.B. was also tested; the results came back positive

for exposure to and ingestion of methamphetamine. Additionally, the mother

admitted to the department that there was a history of domestic violence in her

relationship with the father and that he had pending domestic-violence charges

based on recent incidents. K.B. was removed from parental custody.

The mother began attending inpatient substance-use treatment

immediately; the program lasted for about two months. And then, from February

2023 to September, she continued to participate in outpatient treatment and

generally completed drug testing as requested with results that showed no illegal

drug use. Based on the mother’s demonstrated sobriety, her ability to parent K.B.

well during her visits with him, and her reports she was no longer in a romantic

relationship with the father, she was moved up to unsupervised and then overnight

visits with K.B. Then, with juvenile court authorization, a trial home placement

began on September 14.

Less than two weeks later, the juvenile court rescinded the authorization for

the trial home placement and ordered the mother to revert to fully supervised

visitation with K.B. Just a few days after the trial placement began, the father—

who was only allowed supervised visitation, which the mother was not authorized

to provide—visited the mother’s home. The mother knew the father was coming

over and allowed him to do so. While he was there, the mother and father had a

verbal spat that culminated in the father strangling the mother for several seconds;

K.B. was in the home at the time.
7

The mother moved to reinstate the trial home placement. And the

department urged the court to grant it, arguing that the mother was not responsible

for the father’s violent behavior and that she showed protective capacity with her

actions after the incident. The county attorney resisted, alleging that the version

of events the mother reported to the juvenile court was not the same she told police

officers on the night of the incident (based on the bodycam footage from officers),

interactions between the mother and father on social media (both before and after

the September 18 assault) suggested they were maintaining a romantic

relationship in spite of their claims to the contrary, and the fact that the father had

belongings in the mother’s apartment—where she had only been living for about a

month—suggested the father was around during the mother’s other unsupervised

times with K.B.

After a hearing on the issue, the juvenile court denied the mother’s request,

ruling:

After hearing all the evidence, the Court finds that the trial
home placement shall not be reinstated. The Court did not find the
mother to be credible in any way. The Court firmly believes that the
parents relationship has continued throughout this case, they just
have not been honest with the team about it. [The mother] further
has absolutely no insight as to the danger he presents to her and to
[K.B.]. The mother’s assertion that their relationship was over after
the assault is not credible either. She was still exchanging responses
and reactions with him on Facebook AFTER the assault. Those
coincidentally ended on the same day that the trial home placement
ended. The mother invited the father over to get his laundry knowing
that he was not to be unsupervised with [K.B.]. It is likely she has
been allowing the father access to the child at other times as well.

Although the mother had several months of sobriety from methamphetamine at the

time the trial home placement was ended, after that, the mother began regularly

using methamphetamine again. She tested positive for methamphetamine four
8

tests in a row—on October 23 and 30 and November 2 and 9. After that, the

mother had a string of tests that showed no illegal drug use before failing to attend

two drug tests in late January 2024, testing positive for methamphetamine and

amphetamine four times in February, and failing to attend all six tests in March. As

already noted, the mother did not attend the termination hearing, which took place

on April 8.

The mother asserts K.B. could be returned to her as of the April 8 hearing.

She suggests that because she was allowed to have unsupervised parenting time

with K.B. up until the father’s perpetration of violence in September 2023 that it is

really the father who is the danger to K.B.’s safety. And, because the father was

incarcerated at the time of the termination hearing, the mother argues K.B. could

be safely returned to her. While the father’s violent actions are a real, valid

concern, they are not the only issue relating to K.B.’s safety. As to those safety

concerns, the mother repeatedly tested positive for methamphetamine in the

months leading up to the termination hearing; rather than addressing this issue,

the mother denied using the drug and did not complete substance-use treatment

following her relapse. Her unresolved issues with methamphetamine are enough

to prevent the return of K.B. to her. See, e.g., In re J.H., No. 22-1290, 2022 WL

16985230, at *3 (Iowa Ct. App. Nov. 17, 2022) (concluding a parent “regularly

test[ing] positive for methamphetamine as late as the weeks leading up to the

termination hearing . . . itself would prevent the children from being returned”); In

re P.D., No. 19-1824, 2019 WL 6894420, at *1 (Iowa Ct. App. Dec. 18, 2019)

(“Given the mother’s continued use of methamphetamine, the child would be at

risk of adjudicatory harm.”). We agree with the mother’s statement that the father’s
9

perpetration of violence is not her fault. But her choices to allow the father around

K.B. without department supervision—in violation of court orders—and to maintain

a romantic relationship with a man who, in her own estimation, has strangled her

about ten different times are her responsibility. Following our review, we conclude

the State proved that K.B. could not be safely returned to the mother at the time of

the termination hearing, establishing section 232.116(1)(h) as a ground for

termination. See, e.g., In re G.C., No. 03-1096, 2003 WL 21919900, at *1 (Iowa

Ct. App. Aug. 13, 2003) (affirming termination of parents’ rights when the parents’

relationship was “unstable and riddled with domestic violence”; the parents were

“incapable of protecting [the child] from their volatile relationship,” which prevented

the child’s return to the home).

Next, the mother argues termination of her parental rights is not in K.B.’s

best interests, focusing on the close relationship she shares with the child.3 See

Iowa Code § 232.116(2). At the time of the termination hearing, K.B. was about

thirty months old—he had spent nearly sixteen of those months outside of his

mother’s custody. While the mother had a good relationship with K.B. and was

able to highlight her parenting skills during supervised visits, her continued use of

methamphetamine prevented her from being K.B.’s safe full-time caregiver. As

the mother was not yet addressing her relapse on methamphetamine at the time

3 Insofar as the mother meant to invoke the permissive exception in
section 232.116(3)(c), we do not consider it. The parent resisting termination
bears the burden to establish the application of exception is warranted. See A.S.,
906 N.W.2d at 476. Because she bore the burden, the mother’s “passive
approach” at the termination hearing “has consequences” under
section 232.116(3); because neither she nor her counsel addressed the statutory
exceptions or offered any evidence to support them, the mother waived this issue.
J.R., 2025 WL 52738, at *2.
10

of the termination hearing, it is not clear when—or even if—she would be able to

be that caretaker in the future. K.B. deserves a safe, stable home now; termination

of the mother’s parental rights and adoption will allow him to have that. See A.B.,

815 N.W.2d at 777 (“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) . . . .” (citation omitted)).

We affirm the termination of the mother’s parental rights to K.B.

II. Father’s Appeal.

The juvenile court terminated the father’s parental rights to K.B. pursuant to

Iowa Code section 232.116(1)(e) and (h). He challenges the statutory grounds

and argues the loss of his rights is not in the child’s best interests because of the

closeness of the parent-child relationship.

As with the mother, we can affirm termination of the father’s parental rights

on any ground supported by the record and we choose to review under

section 232.116(1)(h). And, like the mother, the father challenges only the fourth

element—whether K.B. could be returned at the time of the April 2024 termination

hearing. The father admits he was incarcerated at the time of the hearing; he

argues that while K.B. could not be returned to his physical care, the child could

have been returned to his legal custody and the father’s “extensive network of

relatives [could] care for K.B. until his release.”4 While we appreciate the

distinction the father is making, the father has provided no legal authority showing

4 Within this section, the father also argues K.B. could have been returned to the

mother. Because the father “[does] not have standing to assert” arguments on
behalf of the mother, we do not consider this argument. In re K.R., 737 N.W.2d
321, 323 (Iowa Ct. App. 2007).
11

a child-welfare proceeding where an Iowa court returned the child to the parent’s

custody while the parent remained incarcerated. Cf. In re T.W., No. 20-0145, 2020

WL 1881115, at *1 (Iowa Ct. App. Apr. 15, 2021) (reviewing multiple cases where

the supreme court considered whether the child could be safely returned to the

parent’s care at the time of the termination hearing when reviewing statutory

ground). And the father, who was in and out of jail throughout the child-welfare

proceedings, also has an unresolved history of methamphetamine use and

perpetrating domestic violence. We cannot say K.B. could be safely returned to

the father’s care even if he was not incarcerated—upon his release from jail, the

father would need to take further actions to become a safe parent for K.B. The

State proved the ground for termination under section 232.116(1)(h). See id.

Next, the father argues termination of his rights is not in K.B.’s best

interests, see Iowa Code § 232.116(2), and suggests his rights should be saved

because of the closeness of the parent-child relationship, see id. § 232.116(3)(c).

As we have often repeated, “[a] child’s safety and the need for a permanent home

are now the primary concerns when determining a child’s best interests.” In re

J.E., 723 N.W.2d 793, 801 (Iowa 2006) (Cady, J., concurring specially). At the

time of the termination hearing, the father was not able to provide K.B. either of the

two. And while he mentions the closeness of his relationship with K.B., it is the

father’s burden to establish the hardships of termination would outweigh the benefit

K.B. will receive through termination of the father’s rights and adoption. See A.S.,

906 N.W.2d at 476 (recognizing parent has the burden to establish the permissive

exception); D.W., 791 N.W.2d at 710 (when determining whether to apply section

232.116(3)(c) to save the parent-child relationship, “our consideration must center
12

on whether the child will be disadvantaged by termination, and whether the

disadvantage overcomes [the parent’s] inability to provide for [the child’s]

developing needs”). The father has not done so.

We affirm the termination of the father’s parental rights to K.B.

AFFIRMED ON BOTH APPEALS.

Langholz, J., concurs; Buller, J., partially dissents.
13

BULLER, Judge (concurring in part and dissenting in part).

I concur in the judgment but dissent from the majority opinion’s approach to

error-preservation, which answers a question left open by and goes farther than

the recent decision in In re J.R., No. 24-0942, 2025 WL 52738, at *1–2 (Iowa Ct.

App. Jan. 9, 2025) (en banc). Here, despite accepting personal service of the

termination petition, the mother below did not make even a token resistance to

termination, through counsel or otherwise:

• She failed to appear for trial despite calls throughout the courthouse;

• Her attorney did not offer any exhibits or cross-examine any witnesses;

• And, neither orally nor in writing, did the mother or her attorney ever argue
against or contest termination.

As the majority correctly explains in footnote one, the mother’s attorney told the

juvenile court he could offer “no position” on the issues because he was not given

direction from his client during the one “very brief phone call” they had.

Indisputably, the first time the mother contested termination at all was in her

appellate filings.5 Yet the majority concludes error was preserved, going beyond

J.R., 2025 WL 52738, at *1. I disagree with any expansion of J.R.’s holding.

Many of the criticisms in my J.R. dissent are present in this case, too: the

majority is unnecessarily deciding an unpreserved error and considering specific

5 As a side note, the mother’s petition on appeal never cites to the record in its

recitation of facts, contrary to the rules of appellate procedure. See Iowa Rs. App.
P. 6.201(1)(d), .1401–Form 5; In re K.D., No. 21-0581, 2021 WL 3897419, at *2
(Iowa Ct. App. Sept. 1, 2021) (discussing these rules). Despite our rules requiring
record citations, the petition makes personal assertions about the mother’s mental
state or emotions, attempting to explain her absence from trial. These statements
are not evidenced in the record, clearly violate the rules, and highlight why a parent
should not be allowed to voluntarily absent him- or herself from trial only for their
lawyer to gin up new arguments for the first time on appeal.
14

legal arguments the district court never had a chance to evaluate and the State

never had the opportunity to argue against. Id. at *3 (Buller, J., dissenting in part).

I remain convinced deciding such claims on appeal runs counter to our statutory

role as a “court for the correction of errors at law.” Iowa Code § 602.5103(1)

(2024). And, as a policy matter, there is merit to the approach taken by other states

that find a willful failure to attend a termination trial waives appeal. Id. at *4 n.5.

But the issue here goes beyond the majority’s holding in J.R., now

undermining our case law on waiver or forfeiture in addition to error preservation.

See generally Tory A. Weigand, Raise or Lose: Appellate Discretion and Principled

Decision-Making, 17 Suffolk J. Trial & App. Advoc. 179, 182–87 (2012) (on

distinctions between waiver and forfeiture across various jurisdictions). And the

majority opinion’s treatment of this record creates perverse incentives for parents

in future juvenile cases to skip out on trial and gamble on appellate lawyers spotting

issues that were not fully or adequately litigated below. This defies core tenets of

appellate review. See DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002) (“[I]t is

unfair to allow a party to choose to remain silent in the trial court in the face of

error, taking a chance on a favorable outcome, and subsequently assert error on

appeal if the outcome in the trial court is unfavorable.” (citation omitted)). It’s bad

public policy. And it certainly does not benefit the children at the heart of these

cases to allow parents who didn’t bother to attend trial or resist termination an

opportunity to unwind completed terminations after a trial they willfully avoided.

Bottom line: My view is that we should enforce our error-preservation rules

rather than allow exceptions to swallow them.