In the Interest of J.L., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 22-1959
Filed March 8, 2023

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

M.L., Father,
Appellant,

K.R., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Jackson County,

Kimberly K. Shepherd, District Associate Judge.

A father and mother each appeal the termination of their parental rights.

AFFIRMED ON BOTH APPEALS.

Chris Raker of Alliance Law Office, P.C., East Dubuque, Illinois, for

appellant father.

Victoria D. Noel of The Noel Law Firm, P.C., Clinton, for appellant mother.

Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney

General, for appellee State.

Taryn Rena McCarthy of Clemens, Walters, Conlon, Runde & Hiatt,

Dubuque, attorney and guardian ad litem for minor child.

Considered by Tabor, P.J., and Schumacher and Ahlers, JJ.
2

SCHUMACHER, Judge.

A father and mother each appeal the termination of their parental rights. We

conclude there is sufficient evidence in the record to support termination of their

parental rights. The father has not shown an exception to termination should be

applied. Also, the court properly denied the mother’s request for an extension of

time. We affirm the district court on both appeals.

I. Background Facts & Proceedings

M.L. is the father1 and K.R. is the mother of J.L, who was born in early 2022.

At the time the child was born, the mother was involved with the Iowa Department

of Health and Human Services (DHHS) for an older child, C.R., due to concerns

for substance abuse and domestic violence. The mother was not cooperative with

services in C.R.’s case. The mother tested positive for amphetamines at the time

of J.L.’s birth, and J.L.’s umbilical cord was positive for methamphetamine. The

child was removed from the parents’ custody. He was placed with a maternal aunt

and uncle.2

On April 18, 2022, the child was adjudicated to be in need of assistance

(CINA) pursuant to Iowa Code section 232.2(6)(b), (c)(2), (n), and (o) (2022). The

parents were inconsistent in attending visitation. Neither parent complied with

requests for drug testing. In May, the court found, “The mother has only minimally

1 Despite repeated requests, the father has not participated in a paternity test for
the child.
2 J.L. was placed in the same home as his half-sibling, C.R. The mother’s parental

rights to C.R. were terminated, and the child was adopted by the maternal aunt
and uncle.
3

engaged in services; the father has attended some interactions with the child but

has not engaged in any other services.”

On August 30, the State filed a petition seeking termination of the parents’

rights. The termination hearing was held on October 22. A DHHS social worker

stated the mother had started mental-health counseling and medication

management. The father was in the process of completing a mental-health

evaluation and had not started counseling. Both parents had substance-abuse

evaluations. The mother did not start treatment until shortly before the termination

hearing. No drug treatment was recommended for the father based on his self-

reporting. The parents did not comply with requests for drug testing. The parents

remained inconsistent in attending visitation.

At the hearing, the mother requested more time to work toward reunification.

The mother and father were then living with the paternal grandmother and were

continuing to work on fixing up a home that was without utilities.3 The mother

stated that if her request for an extension was not granted, she wanted the child

placed in a guardianship with the paternal grandmother. The father also asked for

more time to work toward reunification. He stated he was willing to place the child

in a guardianship with the paternal grandmother; the paternal grandmother testified

she was willing to become the child’s guardian.

The court terminated the parents’ rights under section 232.116(1)(g), (h),

and (l). The court noted the parents had not complied with any drug tests

requested by DHHS. Additionally, the parents did not consistently attend visitation.

3 The father told a caseworker when asked about the status of this home’s utilities
that “[w]ater and electricity make children lazy.”
4

The court found, “The parents have barely begun to address any of the concerns

raised through this case.” The court found that the child could not be returned to

either the mother or the father at the time of the termination hearing. The court

concluded, “The mother and the father are unable to handle the responsibility and

needs of this child.” The court also determined that termination of the parents’

rights was in the child’s best interests and that an exception to termination found

in section 232.116(3)(a) should not be applied. The father and mother each

appeal.

II. Standard of Review

Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d

764, 773 (Iowa 2012). The State must prove its allegations for termination by clear

and convincing evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). “‘Clear

and convincing evidence’ means there are no serious or substantial doubts as to

the correctness [of] conclusions of law drawn from the evidence.” Id. Our primary

concern is the best interests of the child. In re J.S., 846 N.W.2d 36, 40 (Iowa

2014).

In general, we follow a three-step analysis in reviewing the termination of a

parent’s rights. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). We first consider

whether there is a statutory ground for termination of the parent’s rights under

section 232.116(1). Id. Second, we look to whether termination of the parent’s

rights is in the child’s best interests. Id. (citing Iowa Code § 232.116(2)). Third,

we consider whether any of the exceptions to termination in section 232.116(3)

should be applied. Id.
5

III. Father

A. The father claims there is not sufficient evidence in the record to

support termination of his parental rights. “We will uphold an order terminating

parental rights where there is clear and convincing evidence of the statutory

grounds for termination.” In re T.S., 868 N.W.2d 425, 434 (Iowa Ct. App. 2015).

“When the juvenile court orders termination of parental rights on more than one

statutory ground, we need only find grounds to terminate on one of the sections to

affirm.” Id. at 435.

We consider the termination of the father’s parental rights under section

232.116(1)(h).4 The father disputes the court’s finding that the child could not be

returned to him at the present time. We consider whether a child can be returned

to the parent at the time of the termination hearing. In re A.M., 843

N.W.2d 100, 111 (Iowa 2014). The father was still in the process of obtaining a

mental-health evaluation and had not started counseling. He never complied with

DHHS requests for drug tests. No effort was made to address the issue of

domestic violence. The father was not in a position to have the child returned to

4 Section 232.116(1)(h) provides for termination of parental rights when the court
finds:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of
assistance 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.
6

his custody.5 We conclude the father’s parental rights were properly terminated

under section 232.116(1)(h).

B. The father asserts the court should apply the exception to termination

found in section 232.116(3)(a), which provides the court may decide to not

terminate parental rights if it finds “[a] relative has legal custody of the child.”

The exceptions to termination found “in section 232.116(3) are permissive,

not mandatory.” In re W.T., 967 N.W.2d 315, 324 (Iowa 2021) (citation omitted).

“The court may exercise its discretion in deciding whether to apply the factors in

section 232.116(3) to save the parent-child relationship based on the unique

circumstances of each case and the best interests of the children.” In re A.R., 932

N.W.2d 588, 591 (Iowa Ct. App. 2019). The child’s best interests remain our first

consideration. In re A.S., 906 N.W.2d 467, 475 (Iowa 2018).

The court considered the exception in section 232.116(3)(a) and noted the

exception was permissive not mandatory. The court elected to not apply the

exception. We determine the challenged section is not applicable as the

placement does not have legal custody of the child.6 Custody of J.L. was with

DHHS at the time of the termination hearing, with placement with a relative. We

5 As part of his issue concerning the statutory grounds, the father makes a passing
reference that termination is not in the child’s best interest, but he does not set out
arguments or authority in support of that statement. As such, we consider any best
interest argument to be waived. See Midwest Auto. III, LLC v. Iowa Dep’t of
Transp., 646 N.W.2d 417, 431 n.2 (Iowa 2002) (finding perfunctory mention of an
issue without elaboration or supporting authority waives the claim).
6 The father makes a short reference in this section of his argument that a

guardianship should be established with the relative. To the extent this argument
is asserted, we determine that given that the child was an infant at the time of the
termination hearing, guardianship is not an appropriate permanency option. We
note, “a guardianship is not a legally preferable alternative to termination.” In re
B.T., 894 N.W.2d 29, 32 (Iowa Ct. App. 2017).
7

therefore decline to apply the exception to termination found in section

232.116(3)(a).

IV. Mother

A. The mother claims there is not sufficient evidence in the record to

support termination of her parental rights. Like the father, we will focus on the

termination of her parental rights under section 232.116(1)(h). The mother

contends the court should have placed the child with her because she was living

in a safe environment with the paternal grandmother. She also points out that she

recently began addressing her substance-abuse and mental-health issues.

The mother began treatment for substance abuse just shortly before the

termination hearing. It remains unknown as to whether she will be able to

overcome her substance-abuse problems. The mother tested positive for illegal

drugs at the time the child was born and thereafter did not comply with any

requests for drug tests. The mother remained in a relationship with the father,

despite concerns about domestic violence. Social workers stated the mother

sometimes had bruises, which she tried to cover with makeup. She was

inconsistent in attending visitation. We determine the child could not be returned

to the mother’s custody at the time of the termination hearing. We conclude the

mother’s parental rights were properly terminated under section 232.116(1)(h).

B. The mother contends the court should have granted her an extension

of time to work toward reunification. She states the child could be placed in her

custody under the supervision of the paternal grandmother or the child could be

placed with the paternal grandmother for a reasonable period of time.
8

A six-month extension of time may be granted under sections 232.104(2)(b)

and 232.117(5) if parental rights are not terminated following a termination hearing.

In re D.P., No. 21-0884, 2021 WL 3891722, at *2 (Iowa Ct. App. Sept. 1, 2021).

An extension of time may be granted if the court “determin[es] that the need for

removal of the child[ren] from the child[ren]’s home will no longer exist at the end

of the additional six-month period.” In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App.

2005) (quoting Iowa Code § 232.104(2)(b)). “The judge considering [the

extension] should however constantly bear in mind that, if the plan fails, all

extended time must be subtracted from an already shortened life for the children

in a better home.” Id. (citation omitted).

“To grant an extension, the juvenile court needs evidence to support a

finding the parents could properly care for the child[ren] within six months.” In re

S.O., 967 N.W.2d 198, 210 (Iowa Ct. App. 2021) (citing Iowa Code

§ 232.104(2)(b)). The court appropriately found,

The parents have barely begun to address any of the concerns
raised through this case. The parents have defied court orders for
drug testing and paternity testing, and have failed to cooperate with
[DHHS]. In addition to the time given for services in this case, the
mother was previously offered services in the sibling case. The
mother has repeatedly chosen to ignore the people who have made
attempts to provide assistance and services to her.

The evidence shows it is unlikely that the need for removal of the child from the

child’s home will no longer exist at the end of an additional six-month period. We

decline to grant an extension of time for reunification efforts.

AFFIRMED ON BOTH APPEALS.