In the Interest of J.T., B.T., and R.J., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 19-1996
Filed July 22, 2020

IN THE INTEREST OF J.T., B.T., and R.J.,
Minor Children,

M.J., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Plymouth County, Daniel P.

Vakulskas, District Associate Judge.

A mother appeals the termination of her parental rights to her children.

AFFIRMED.

Kelsey Bauerly Langel, Le Mars, for appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Meret Thali, Sioux City, attorney and guardian ad litem for minor children.

Considered by Tabor, P.J., May, J., and Carr, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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CARR, Senior Judge.

A mother appeals the termination of her parental rights to her three children.

She first challenges the juvenile court’s denial of her attorney’s motion to continue

the hearing, which was based on her failure to appear. The court asked the

mother’s attorney if she knew why the mother was not present, and her attorney

stated she did not. On this basis, the court denied the continuance. The mother

argues the court should have continued the proceedings to allow her to testify.

We review the juvenile court’s denial of a motion to continue for an abuse

of discretion. See In re M.D., 921 N.W.2d 229, 232 (Iowa 2018). An abuse of

discretion occurs if the denial is based on reasons that are clearly untenable or

unreasonable or if the court misapplies the law. See id. In determining whether

to grant a continuance, the court must weigh due process protections afforded to

a parent facing termination of parental rights against the best interests of the

children. See id. at 232-33. We only reverse the denial of a continuance if it is

unreasonable under the circumstances and causes injustice to the party seeking

it. See In re C.W., 554 N.W.2d 279, 281 (Iowa Ct. App. 1996).

“A motion for continuance shall not be granted except for good cause.” Iowa

Ct. R. 8.5. The court denied the mother’s motion to continue, in the absence of a

reason given for the mother’s failure to appear at the scheduled termination

hearing. The court did not abuse its discretion in denying the continuance without

a showing of good cause.
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The mother also challenges the grounds for terminating her parental rights

and contends termination is contrary to the children’s best interests. 1 We review

these claims de novo. See In re A.S., 906 N.W.2d 467, 472 (Iowa 2018).

The juvenile court terminated the mother’s parental rights under Iowa Code

section 232.116(1)(d), (f), (h), and (l) (2019). “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). Termination under section 232.116(1)(f) and (h)

differ with regard to the age of the child and the amount of time the child has been

removed from the parent’s care. Compare Iowa Code § 232.116(1)(f) (applying to

children four years of age or older who have been removed from the parent’s care

for at least twelve of the last eighteen months), with id. § 232.116(1)(h) (applying

to children three years of age or younger who have been removed from the

parent’s care for at least six of the last twelve months). But both provisions require

proof by clear and convincing evidence that the children cannot be returned to the

parent’s care at the time of the termination hearing without exposing the children

to harm that would lead to a new child-in-need-of-assistance (CINA) adjudication.

See id. § 232.116(1)(f)(4) (requiring “clear and convincing evidence that at the

1 The State contends the mother failed to preserve error on this claim because her
attorney “stood silent” at the termination hearing. We agree that timely filing of a
notice of appeal is insufficient to preserve error. See Thomas A. Mayes &
Anuradha Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives
on Present Practice, 55 Drake L. Rev. 39, 48 (2006) (“While this is a common
statement in briefs, it is erroneous, for the notice of appeal has nothing to do with
error preservation.” (footnote omitted)). “As a general rule, an issue not presented
in the juvenile court may not be raised for the first time on appeal.” In re T.J.O.,
527 N.W.2d 417, 420 (Iowa Ct. App. 1994). Regardless, we choose to resolve the
mother’s appeal on the merits.
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present time the child cannot be returned to the custody of the child’s parents as

provided in section 232.102”), (h)(4) (same); In re D.W., 791 N.W.2d 703, 707

(Iowa 2010) (interpreting the term “at the present time” to mean “at the time of the

termination hearing”); In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App. 2016)

(noting a child cannot be returned to the custody of the parent if doing so would

expose the child to any harm amounting to a new CINA adjudication). It is this

final element of both section 232.116(1)(f) and (h) that the mother contests on

appeal.

The mother has a long history of substance use, with the oldest child first

removed from her care when he tested positive for methamphetamine at birth in

2011. She has been diagnosed as having a severe methamphetamine use

disorder. And in June 2018, the mother rear-ended another vehicle on the highway

while driving under the influence of methamphetamine with two of the children in

her car, causing one of the children to be hospitalized with a concussion. But in

spite of Iowa Department of Human Services recommendations and court orders

to engage in substance-abuse treatment, she had yet to engage in those services

in a meaningful way by the time of the November 2019 termination hearing. The

mother tested positive for methamphetamine in May 2019, and the State charged

her with possession of methamphetamine, unlawful possession of prescription

drugs, and possession of drug paraphernalia in July 2019.2 And the mother’s

2 Even if the juvenile court continued the termination hearing until the mother was
in attendance and the mother presented evidence that she had attended
substance-abuse treatment and maintained her sobriety since July 2019, the
outcome would remain the same. See In re C.B., 611 N.W.2d 489, 495 (Iowa
2000) (“A parent cannot wait until the eve of termination, after the statutory periods
for reunification have expired, to begin to express an interest in parenting.”).
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substance use is only one of several concerns regarding the mother’s ability to

care for the children; she also failed to address her mental health or history of

domestic violence, was unemployed, and lacked housing. Because the mother’s

ongoing issues would expose the children to harm warranting a new CINA

adjudication, her parental rights may be terminated under Iowa Code section

232.116(1)(f) and (h).

Having concluded that a statutory ground for termination exists, we next

determine whether termination is in the children’s best interests. See Iowa Code

§ 232.116(2); In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). In making this

determination, we “give primary consideration to the child[ren]’s safety, to the best

placement for furthering the long-term nurturing and growth of the child[ren], and

to the physical, mental, and emotional condition and needs of the child[ren].” Iowa

Code § 232.116(2). The “defining elements” are the child’s safety and “need for a

permanent home.” In re H.S., 805 N.W.2d 737, 748 (Iowa 2011) (citation omitted).

We agree that termination is in the children’s best interests. The mother

had ample time to obtain treatment for her substance use but failed to follow

through. The situation remained unchanged in the eighteen months leading up to

the termination hearing. And, although the mother clearly loves her children and

never missed a visit with them, her visits continued to be supervised because the

children did “better emotionally” with supervised visits. We have already

determined the mother cannot provide the children with the safe home they

require. At this point, the children’s need for permanency trumps the mother’s

desire to maintain the parent-child bond. See In re R.J., 436 N.W.2d 630, 636

(Iowa 1989) (noting that once the statutory time period for reunification has
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expired, “patience on behalf of the parent can quickly translate into intolerable

hardship for the children”).

We affirm the termination of the mother’s parental rights to her children.

AFFIRMED.