Opinion
24-0068
03-27-2024
IN THE INTEREST OF L.J., Minor Child, J.J., Father, Appellant, K.H., Mother, Appellant.
Zachary G. Hecht of Causey & Ye Law, P.L.L.C., Des Moines, for appellant father. Lori M. Holm, Ankeny, for appellant mother. Brenna Bird, Attorney General, and Lisa Jeanes, Assistant Attorney General, for appellee State. Megil D. Patterson of Youth Law Center, Des Moines, attorney and guardian ad litem for minor child.
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, Judge.
A mother and father separately appeal the termination of their parental rights to one child. AFFIRMED ON BOTH APPEALS.
Zachary G. Hecht of Causey & Ye Law, P.L.L.C., Des Moines, for appellant father. Lori M. Holm, Ankeny, for appellant mother.
Brenna Bird, Attorney General, and Lisa Jeanes, Assistant Attorney General, for appellee State.
Megil D. Patterson of Youth Law Center, Des Moines, attorney and guardian ad litem for minor child.
Considered by Tabor, P.J., and Badding and Buller, JJ.
TABOR, PRESIDING JUDGE
Korey and Javon appeal the termination of their parental rights to one-year-old L.J. They both challenge the statutory grounds for termination and request a six-month extension of the proceedings. Additionally, Javon contends the juvenile court should have placed L.J. with his mother. Javon also contends termination of his rights is not in L.J.'s best interests.
Bottom line: neither parent can safely care for this medically complex child. We find no merit in their challenges, so we affirm on both appeals.
I. Facts and Prior Proceedings
Born in December 2022, L.J. has spent more of her life in hospitals and medical clinics than at home. At birth she and Korey both tested positive for methamphetamine. The Iowa Department of Health and Human Services determined a child abuse assessment was founded for the presence of illegal substances, and the juvenile court ordered L.J. removed from her parents' custody in January 2023. L.J. had serious medical issues and needed heart surgery.
At first, the department placed L.J. with her maternal grandmother, Tasha. But concerns arose about Tasha's protective capacity and attention to L.J.'s medical needs. The State petitioned to modify the placement. Javon asked for L.J. to be placed with her paternal grandmother, Angie, who had adopted Javon's niece and nephew. The department explored Angie as a placement option and found nothing of concern in her criminal history or drug screens. But the juvenile court expressed concern about Angie's demeanor at the adjudication hearing, particularly her display of disagreement that Javon had a history of domestic violence. Also at the adjudication hearing, L.J.'s guardian ad litem (GAL) requested placement with Angie even though she never spoke with her. Instead, the court removed L.J. from Tasha in March and placed her with a foster family.
The baby's health struggle continued. By May, she had moved to ChildServe's residential center so that she could gain enough weight to tolerate heart surgery. One month later, she was taken by ambulance to Blank Children's Hospital with a respiratory infection. Once there, she was diagnosed with a collapsed lung and life-flighted to the Children's Hospital in Omaha. L.J.'s heart surgery was postponed while she battled the collapsed lung and repeated colds and infections. The foster parents visited her daily in the hospital; Korey had an in-person visit in July and several virtual visits over Zoom. L.J. had heart surgery on July 20. After some post-surgical complications, she was discharged to the foster parents. One of the complications was that L.J. needed a feeding tube. Although given several notifications, Korey missed the October surgery to place the tube and the training on how to feed L.J.
Meanwhile the parents were struggling with the expectations of the department and the court for regaining custody of their child. Javon tested positive for methamphetamine in February 2023. He did not stay in touch with the department or service providers and stopped attending visitation. His last contact with L.J. was in April 2023. The department was also concerned about his history of domestic violence.
His criminal record shows one conviction for violating a no-contact order and three charges of domestic abuse assault-all dismissed by the court. But medical staff and department workers reported overhearing physical threats he made against Korey while they were in the hospital with L.J.
Korey likewise tested positive for methamphetamine in February 2023 and missed several chances to test again. In June, she started inpatient treatment at House of Mercy. She had a negative drug test in July. But House of Mercy discharged her from treatment that month for breaking its rule against having cellphones. Staff there also reported she missed group sessions and wasn't engaged. She told them she didn't have an addiction and was only participating to get custody of L.J. She was also expecting a new baby in November 2023. After her discharge from treatment, Korey relapsed. In October, she gave birth at a gas station. The new baby, J.J., tested positive for methamphetamine and cocaine. The department petitioned to remove J.J. from parental custody.
J.J. is not a subject of this appeal.
The State petitioned for termination of both parents' rights to L.J. in September 2023. Korey did not appear for the October hearing, and Javon appeared an hour late. The juvenile court terminated Korey's rights under Iowa Code section 232.116(1) (2023), paragraphs (h) and (l). And it terminated Javon's rights under paragraphs (b), (e), and (h). Korey and Javon appeal separately.The GAL joins the State in resisting the parents' appeals.
We review termination proceedings de novo. In re L.B., 970 N.W.2d 311, 313 (Iowa 2022). We respect the juvenile court's factual findings, but we reach our own conclusions based on a fresh view of the record. Id. The State must prove the grounds for termination in section 232.116(1) by clear and convincing evidence. Id.
II. Analysis
In reviewing the termination of parental rights, we follow a three-step analysis. In re D.W., 791 N.W.2d 703, 706-07 (Iowa 2010). We first determine whether the State proved any ground for termination under section 232.116(1). Id.
If so, we look to the best-interests framework set out in section 232.116(2). Id. If that framework supports termination, then we consider any statutory exceptions in section 232.116(3). Id. We only need to consider arguments that the parents raise in their petitions on appeal. See In re J.P., No. 19-1633, 2020 WL 110425, at *1 (Iowa Ct. App. Jan. 9, 2020).
A. Statutory Grounds
At step one, Korey challenges the termination of her rights under paragraph (h); she makes no argument about paragraph (l). And Javon challenges his termination under paragraphs (e) and (h), but not (b). "When the juvenile court terminates parental rights on more than one statutory ground, we may affirm the juvenile court's order on any ground we find supported by the record." In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). And we do not consider challenges the parent does not make on appeal. See Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (declining to speculate on arguments that appellant "might have made and then search for legal authority and comb the record for facts to support such arguments"). We thus affirm the juvenile court's termination of Korey's parental rights under paragraph (l) and Javon's under paragraph (b).
On our review, the record supports the juvenile court's findings on those challenged grounds. The only argument the parents make on appeal as to paragraph (h)(3) is that L.J. was not out of their "physical custody" because she was in the hospital and at ChildServe, where they exercised visitation, for much of the case. See Iowa Code section 232.116(1)(h)(3) (requiring for termination ground that the "child has been removed from the physical custody of the child's parents" for a period of time). A person who has "physical custody" "exercises physical possession, care, control, and responsibility over a child." In re L.A.M., No. 00-0666, 2001 WL 246371, at *5 (Iowa Ct. App. Mar. 14, 2001) (discussing previous version of paragraph (h), then codified as Iowa Code section 232.116(1)(g)). Neither parent exercised anything like that after the removal. In addition, "[t]he statutory time period specified in section 232.116(1)(h)(3) begins to run on the date custody is transferred and continues to run until the date of the termination hearing." In re J.O., 675 N.W.2d 28, 30 (Iowa Ct. App. 2004). The juvenile court ordered L.J. removed in January 2023, as the parents agree in their petitions on appeal. "The removal cannot be circumvented extrajudicially" by the parents exercising visitation or having de facto contact with the child. Id. "No amount of contact with the child rises to the level of physical or legal custody without a judicial determination and an order returning the child to the parent," and that did not happen here. Id. The removal deprived the parents of physical custody for the statutorily required time. But c.f. In re T.N., No. 190467, 2019 WL 2371963, at *1-2 (Iowa Ct. App. June 5, 2019) (finding a change in physical custody when a "guardian returned the child to the care and custody of the mother"). As to his challenge to termination under paragraph (e), the record supports the court's findings that Javon failed to maintain "significant and meaningful contact" when he stopped having contact with her and the department in April. See Iowa Code § 232.116(1)(e).
B. Placement
As an alternative, Javon contends that the juvenile court should have placed L.J. with his mother, Angie. He argues placing her with a foster family contravened the statutory preference for relative placement and the spirit of the Family First Prevention and Services Act. See Pub. L. No. 115-123 (HR 1892) (2018). True, Iowa Code section 232.84(2) requires the department to "exercise due diligence in identifying and providing notice" to the child's relatives within thirty days of transferring custody to the department for placement outside the home. The notice clarifies the relatives' options and lets them come forward to be seen as a viable placement option. In re N.V., 877 N.W.2d 146, 151-52 (Iowa Ct. App. 2016); In re R.B., 832 N.W.2d 375, 380-81 (Iowa Ct. App. 2013). Providing relative notice is both an affirmative obligation of the department and a reasonable effort that the department must make when providing services is an element of the statutory ground for termination. See, e.g., In re H.J., No. 21-0601, 2021 WL 4303635, at *2-3 (Iowa Ct. App. Sept. 22, 2021). But Javon does not explicitly challenge the reasonableness of the department's efforts. Javon did ask for placement with his mother when the State petitioned to move L.J. from Tasha's home. But the court noted its observations that Angie appeared to be in denial about Javon's history of domestic violence. And the department reported that Angie was explored as a possible placement before Tasha was selected.
On appeal, Javon complains that the department did not revisit Angie as a placement. But nothing in the record shows Javon suggested his mother as a possible placement after his January 2023 filing. Placement with Angie did not come up during the termination hearing and was not mentioned in the termination order. Because Javon did not raise this issue again before the juvenile court and only returns to it on appeal, we find he did not preserve error on this request. See In re Q.G., 911 N.W.2d 761, 770 (Iowa 2018) ("The district court . . . did not address these issues. As a result, the issues are not preserved for our review."); see also In re C.H., 652 N.W.2d 144, 148 (Iowa 2002) (finding a parent waives reasonable-efforts challenges by failing to timely request more or different services).
C. Best Interests
Javon alone challenges whether termination of his rights is in L.J.'s best interests. In assessing that point, we give primary consideration to L.J.'s safety; to the best placement for furthering her long-term nurturing and growth; and to her physical, mental, and emotional condition and needs. See Iowa Code § 232.116(2). Safety and the need for a permanent home mark the "defining elements" of a child's best interests. In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially).
Throughout this case, Javon did not maintain communication with the department, and he did not complete substance-use, mental-health, or domesticviolence services. By the termination hearing, he had not seen L.J. in eight months. He did not know how to nourish her through her feeding tube. Javon cannot satisfy the basic critical needs of his child. Given the complexity of her medical conditions and her need for constant and consistent care, L.J.'s best interests compel termination of his rights.
D. Extension of Time
Lastly, both parents argue they should be granted six more months under section 232.104(2)(b) to reunify with L.J. To continue placement for six months, that statute requires the court to decide "the need for removal will no longer exist at the end of the extension." In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005). Neither parent has made enough progress toward stability to convince us the need for removal will no longer exist after six months.
It is unfortunate that Korey's inpatient substance-use treatment was cut short and led to a relapse. But she could have avoided discharge by following the facility's rules. And her commitment to treatment was already wavering since she would not admit to having an addiction. She did not engage in treatment afterward. And we cannot find from the record that she will establish her sobriety and become a safe parent within the next six months.
Similarly, the record does not show that Javon could be a safe parent within six months. He has not addressed the department's concerns about his substance use or mental health. Nor has he been engaged in regular visitation with L.J. or learned about her medical needs. Overall, neither parent's circumstances warrant a delay in permanency for their young daughter.
AFFIRMED ON BOTH APPEALS.