In the Interest of E.C. and S.H., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 23-1228
Filed October 11, 2023

IN THE INTEREST OF E.C. and S.H.,
Minor Children,

M.C., Mother,
Appellant,

H.H., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Jones County, Joan M. Black, District

Associate Judge.

A mother appeals the termination of her rights to two children, and a father

appeals termination of his rights to one child. AFFIRMED ON BOTH APPEALS.

Annette F. Martin, Cedar Rapids, for appellant mother.

Judith Jennings Hoover of Hoover Law Office, P.C., Cedar Rapids, for

appellant father.

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

General, for appellee State.

Robert W. Davison, Cedar Rapids, attorney and guardian ad litem for minor

children.

Considered by Tabor, P.J., Buller, J., and Doyle, S.J.*

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

(2023).
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BULLER, Judge.

A mother appeals the termination of her rights to two children, E.C. and S.H.

The father of S.H. separately appeals the termination of his parental rights. On

our de novo review, we affirm both appeals. The children cannot return to the care

of the mother, who has not demonstrated consistent sobriety or stability. And S.H.

cannot return to the care of his father, who has been incarcerated for much of

S.H.’s life, including during the termination trial.

I. Background Facts and Proceedings

S.H. was born to the mother and H.H. (who we refer to throughout this

opinion as “S.H.’s father”) in 2009. E.C. was born to the mother and another man

in 2019. S.H. has been involved with the juvenile court before as a child in need

of assistance (CINA), first in the fall of 2014 and a second time in 2018. E.H. has

been involved with the juvenile court as a CINA since she was one month old.

In 2018, the Iowa Department of Health and Human Services (HHS) first

became involved with S.H. due to concerns over domestic violence in the home

and methamphetamine use by both parents. As the juvenile court put it, S.H.’s

father “has an extensive criminal history” that includes offenses related to domestic

abuse, controlled substances, operating while intoxicated, violation of no-contact

orders, probation violations, and eluding law enforcement. As a result of these

offenses, S.H.’s father has been incarcerated for the majority of S.H.’s life and has

not been a custodial parent at any point in the last five years.

The mother’s criminal history includes operating while intoxicated, eluding,

and controlled substances. She has been jailed at multiple points over the years

leading up to termination, most recently about three months before trial. Dating
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back to 2014, HHS has founded multiple complaints related to the mother and

S.H.’s father’s substance abuse endangering S.H., E.C., and an older child. One

of the mother’s arrests in 2018 led to S.H.’s first removal from September 2018 to

April 2019.

In March 2020, the State applied to remove both children from the mother’s

care after she tested positive for methamphetamine and the children’s fathers

remained incarcerated. Later that year, the court extended the permanency goal.

By the next spring, a trial placement of the children with the mother began and

appeared to go well.

In April 2022, the State applied for another removal (the third for S.H. and

second for E.C.) after the mother took S.H. out of school and fled to Texas with

both children following a car crash. E.C. was in the car, and the mother left the

scene of the accident. While the mother was evading law enforcement and

potential incarceration, she and the children were living in a tent and S.H. missed

twenty-three days of school. During the phone hearing on removal, the mother

admitted to taking the children out of state because she was facing a jail sentence.

The court upheld the removal of both children, ordered the mother to return the

children to Iowa, and placed custody of both children with HHS.

The mother returned to Iowa but continued to use and test positive for

methamphetamine and marijuana. The mother enrolled in an in-patient program

for approximately fifty days but was kicked out of the program when she was found

with a “vape” on her person.

During this time, S.H.’s father was released from incarceration and then re-

incarcerated but did not engage with services. S.H.’s father attempted some
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contact with S.H., but S.H. was not interested. When they did connect by phone,

S.H.’s father had to be redirected away from talking about inappropriate things.

In early 2023, a no-contact order was entered between S.H.’s father and

the then-case worker after S.H.’s father repeatedly texted inappropriate messages

and sent a photo of his penis to the HHS worker. As a result, another case worker

was assigned in February 2023. Among other outbursts by S.H.’s father at the

termination trial, the juvenile court noted he asserted that the State couldn’t prove

“it was actually his penis in the photos” sent to the HHS worker.

By the time of a permanency hearing in April, the mother had been released

from another stint in jail. S.H.’s father was released from jail the day before the

hearing, but his whereabouts were unknown. Recognizing the files had been open

for several years, the court directed the State to file petitions to terminate the

parents’ rights.

At the termination trial, S.H.’s father was jailed awaiting transfer to prison

following a guilty plea to eluding, a class “D” felony. He testified regarding his

different periods of incarceration during the life of the case. He explained that,

although he lived in several different locales when on parole, he had maintained

phone calls with S.H. He also blamed the mother for not engaging with services

because she “was supposed to get custody back.” And he faulted the current

placement for his problems communicating with S.H., though he admitted he can

be difficult to reach and spent weeks without a phone. He also complained about

the new HHS worker assigned after his inappropriate behavior.

The last contact S.H.’s father had with S.H. was five or more months before

trial. During some visits, S.H.’s father acted inappropriately by bringing a knife and
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swearing. S.H.’s father admitted he was not a placement option for S.H. “right this

second” or in the near future. And he criticized S.H.’s current placement as “snotty

as hell, like a bitch.”

The juvenile court described S.H.’s father’s trial testimony as “increasingly

agitated” when questioned by the county attorney about his behavior. While

complaining about the children’s placement, S.H.’s father explained, “I did call her

a bitch, because she was acting like a bitch.” He concluded his trial testimony with

the statement “fuck off” or “fuck this.” The juvenile court observed it was unclear

whether the expletive was directed at the court or the county attorney. S.H.’s father

was removed from the courtroom thereafter.

As for the mother, she had been out of jail less than three months by the

time of the termination trial. In the juvenile court’s words, the mother was “a poor

historian” in terms of chronology. But she did admit to the multiple removals and

that the children had not been in her care or in a trial home placement for

approximately the year preceding termination. And she blamed eating chocolate

at a friend’s house for her recent positive marijuana test and claimed to be sober

since her late-2022 methamphetamine use.

Despite acknowledging her history of substance abuse and relapse, the

mother testified that she was “not the same person” after entering the recovery

program (despite not completing it) and her recent participation in Alcoholics

Anonymous. In the mother’s view, her visits with the children—fully supervised in

the months leading up to termination—were going well, with the caveats that S.H.

sometimes refused to attend and she believed both HHS and the children’s foster
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mother were undermining or sabotaging her. One of the mother’s friends and an

adult child also testified in regard to her recent sobriety and visits with the children.

E.C.’s father testified that E.C. deserved “a better life than what she’s been

getting” from the mother and him. And he believed E.C.’s current placement gave

her the “most consistent love that she has gotten probably throughout her whole

life.”

The HHS case supervisor relayed that S.H., who was nearly fourteen, did

not want to return to his mother because he felt unsafe and wanted to stay with his

sister in the current placement for potential adoption. The case supervisor testified

S.H. told her that the mother had instructed him to lie about matters related to the

juvenile cases. The guardian ad litem (GAL) recommended termination of the

mother’s rights as to both children and of S.H.’s father as to S.H. The GAL

explained that his recommendation was in part based on his conversations with

the children, including a lengthy conversation with S.H. the day before trial.

The juvenile court terminated the mother’s rights to both children, S.H.’s

father’s rights to S.H., and E.C.’s father’s rights to E.C. These appeals by the

mother and S.H.’s father follow. E.C.’s father does not appeal.

II. Standard of Review

We review termination-of-parental-rights proceedings de novo. In re

D.W., 791 N.W.2d 703, 706 (Iowa 2010). “[W]e may affirm the juvenile court’s

termination order on any ground that we find supported by clear and convincing

evidence.” Id. at 707. “We are not bound by the juvenile court’s findings of fact,

but we do give them weight, especially in assessing the credibility of witnesses.”

Id. at 706.
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We generally review rulings on a motion for new counsel for an abuse of

discretion. See State v. Lopez, 633 N.W.2d 774, 778 (Iowa 2001). S.H.’s father

does not assert any other standard should apply in the context of termination

proceedings, so we apply this general rule. We find an abuse of discretion only

where “the [juvenile] court exercised [its] discretion on grounds or for reasons

clearly untenable or to an extent clearly unreasonable.” Id. (quoting State v.

Maghee, 573 N.W.2d 1, 5 (Iowa 1997)).

III. Discussion

In these two related appeals, the mother and S.H.’s father raise some

challenges that overlap and some that do not. We address each parent’s claims

separately.

A. The Mother’s Claims

The mother challenges the sufficiency of the evidence supporting the

statutory elements for termination, whether termination is in the children’s best

interests, and whether a permissive exception should preclude termination.

1. Statutory Elements

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

232.116(1)(f) (2023). To terminate a parent’s rights under this section, the court

must find (1) the child is at least four years old, (2) has been adjudicated a CINA,

(3) has been removed from the parent’s physical custody for at least twelve of the

last eighteen months or the last twelve months with no trial period at home thirty

days or longer, and (4) clear and convincing evidence establishes the child cannot

be returned to the parent’s custody at that time. Iowa Code § 232.116(1)(f). The

mother concedes the first three elements, leaving for our review only whether clear
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and convincing evidence supports the juvenile court’s finding that the children

could not be safely returned to her mother’s care at the time of the termination trial.

See In re S.O., 967 N.W.2d 198, 207–209 (Iowa Ct. App. 2021) (discussing this

element and analyzing the mother’s ability to “offer a safe and healthy

atmosphere”).

The elephant in the room is the mother’s long history of substance abuse,

which has been punctuated by periods of sobriety before relapse. We commend

the mother for seeking in-patient treatment and participating in Alcoholics

Anonymous. But the few months of sobriety leading up to the termination trial,

weighed against her history of relapse and recent positive test for marijuana use,

convince us—like the juvenile court—that the children cannot be safely returned

to the mother’s care. We also appreciate the county attorney’s argument below

that the recent marijuana use does not factor into this case as just an isolated

instance of drug use. The evidentiary value of that incident goes more toward the

explanation offered by the mother, which is either false or reflects that she was

attending parties where controlled substances were abundantly available despite

claiming complete dedication to sobriety. Whether she lied about the positive test

result or it was the product of poor decision-making, the marijuana incident and the

mother’s recent incarceration underscore that she has not achieved the long-term

sobriety and stability required to safely care for the children.

In addition to the substance-abuse concerns, the mother’s visits remained

fully supervised as of the termination trial. This too weighs against returning the

children to her care. See In re C.N., No. 19-1861, 2020 WL 567283, at *1 (Iowa

Ct. App. Feb. 5, 2020) (“[The mother] never progressed to unsupervised visits or
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trial home visits. Without this necessary progression, we cannot say the children

could have returned to the mother’s care.”). While the mother undoubtedly made

some recent strides toward reunification, we agree with the juvenile court these

efforts came too late in the multi-year life of these cases.

2. Best Interests

When determining best interests, we give primary weight 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). Contrary to the mother’s argument on

appeal, we are convinced the evidence proved termination serves the children’s

best interests.

“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) by hoping

someday a parent will learn to be a parent and be able to provide a stable home

for the child.” In re P.L., 778 N.W.2d 33, 41 (Iowa 2010). Yet that is what the

mother requests. She hopes her recent sobriety continues well into the future, as

do we. But the hope that a mother will someday be ready to parent these children

is a legally insufficient basis to overturn the termination. See id.

In weighing the competing considerations, we are persuaded by the need

for stability and permanence. “It is simply not in the best interests of children to

continue to keep them in temporary foster homes while the natural parents get

their lives together.” In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (citation

omitted). These cases have been ongoing for five years; E.C. has been involved

with the juvenile court almost since birth, and the prior CINA litigation for S.H.
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combined with these proceedings has run much of his life. The State says it well,

observing that it is time “to get off of the rollercoaster” caused by the mother’s

inability to provide stability and necessary care.

In addition, we—like the juvenile court—also give weight to S.H.’s view,

expressed through the GAL, that he does not wish to be returned to his mother

and wants to remain with his current placement. As the juvenile court put it, S.H.

“is understandably skeptical of [the mother]’s ability to keep him safe in the long

term.” We also credit the candid, forthright testimony of E.C.’s father, in which he

acknowledged that E.C.’s current placement (in a foster-care placement shared

with S.H.) was the best and most loving environment she had been in throughout

her life. Unlike the blame levied against the foster parent by S.H.’s father, E.C.’s

father was convinced the children would “thrive” in that placement, which the

record supports. This also weighs in favor of the children’s best interests

supporting termination.

3. Permissive Bond Exception

Section 232.116(3) includes certain permissive exceptions that would allow

the juvenile court to decline termination despite a case otherwise meeting the

statutory elements. One of these exceptions allows the juvenile court to decline

termination if it “would be detrimental to the child at the time due to the closeness

of the parent-child relationship.” Iowa Code § 232.116(3)(c). A parent resisting

termination has the burden to prove this permissive exception by clear and

convincing evidence, and our case law recognizes that—without more—neither a

parent’s love nor the mere existence of a bond is enough to prevent termination.
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See id.; In re A.B., 956 N.W.2d 162, 169–70 (Iowa 2021); D.W., 791 N.W.2d at

709.

This is the entirety of the analysis put forward by the mother in her bond

challenge on appeal:

E.C. has a strong bond with her Mom. To sever that bond would be
detrimental to the children’s future well-being and may cause harm
to a young child just beginning to go through life.

Assuming without deciding that these two sentences are adequate to invoke

appellate review, we reject the claim.

The juvenile court considered this argument below as it pertains to both

children:

The bond between [S.H.] and his parents has been severely
damaged. He has made it clear that he believes he is best served
by his current placement. . . . There is a bond between [the mother]
and [E.C.]. That bond, however, is not so significant that it overrides
the need for permanency through a termination of parental rights.

In our de novo review, we agree with that assessment. The mother has a limited

bond with S.H., and it is not clear the bond they do share is positive. As for E.C.,

the mother has not carried her burden to prove the loss of their bond outweighs

the considerations warranting termination. As the juvenile court said, “any

potential harm to the children from the loss of their parents will be ameliorated by

placement in a safe, loving, permanent adoptive family.”

B. S.H.’s Father’s Claims

In addition to advancing the same or similar claims advanced by the mother,

S.H.’s father also asserts the juvenile court abused its discretion when it denied

his request for new counsel made shortly before trial.
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1. The Last-Minute Request for New Counsel

The right to counsel is not absolute, and to be entitled to new counsel, an

indigent litigant “must demonstrate a sufficient reason to substitute a new attorney

for the attorney appointed, such as an irreconcilable conflict with the defendant, or

a complete breakdown in communication between the attorney and the client.”

State v. Kirchner, 600 N.W.2d 330, 333 (Iowa Ct. App. 1999). Iowa courts are

required to “balance [a party]’s right to counsel of his choice and the public’s

interest in the prompt and efficient administration of justice.” State v. Webb, 516

N.W.2d 824, 828 (Iowa 1994) (citation and internal quotation marks omitted).

“Last-minute requests for substitute counsel, insofar as they constitute a delay

tactic, are disfavored.” State v. Tejeda, 677 N.W.2d 744, 750 (Iowa 2004); see

also In re A.W., No. 17-0917, 2017 WL 4049236, at *6 (Iowa Ct. App. Sept. 13,

2017) (“Appointing a new attorney minutes before the termination hearing would

delay the proceedings and cause more hardship for [the child].”). “For these

reasons, the court has considerable discretion in ruling on a motion for substitute

counsel made on the eve of trial.” Lopez, 633 N.W.2d at 779.

On June 5, 2023, the juvenile court received a lengthy handwritten letter

from S.H.’s father making generalized complaints about his attorney. Although not

a model of clarity, the letter requested a new court-appointed attorney “just in case

[the appointed attorney] decides she can’t figure out how to make an appointment

in person.” The letter also requested to postpone the trial “till I can discuss with

[the current attorney] or new attorney.” On June 12, the court received another

letter making similar requests. On June 14, the court entered an order denying the

requests made in the letters. The court found S.H.’s father’s court-appointed
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attorney “ha[d] been appointed to represent the father in the underlying CINA case

since May 2018” and “ha[d] done a good job of representing [the father].” The

court also made a finding that “[i]t would not be possible for a new attorney to be

adequately prepared for trial in just seven days.” In the subsequent termination

order, the court expanded on these findings, explaining that S.H.’s father’s attorney

“ha[d] consistently been a zealous advocate” for him.

On June 21, S.H.’s father filed another letter with the court, now requesting

a new judge, a new lawyer, and a new trial date. His attorney also moved to

withdraw. An in-court colloquy the morning of trial revealed that the father’s

complaints about the judge resulted from her rulings. As for his complaints about

the attorney, he admitted his attorney “d[id] a good job,” but they weren’t “seeing

eye to eye” and he felt like another attorney “could be . . . better.” He also told the

court, “I might get another attorney and might not think she’s doing a good job

either.” The county attorney expressed sympathy with the attorney’s desire to

withdraw from a case where her client no longer wished for representation, but

resisted any continuance in the interest of obtaining permanency for the children.

The GAL also advocated that the trial should go forward on that date, noting “the

timing of this [motion for new counsel] is suspicious, at minimum.” In the GAL’s

words, “these kids need permanency more than almost any kids that I’ve ever

represented,” and he resisted any delay on that basis.

The court denied the father’s requests on the record, noting that

disagreement with the court is not a reason to disqualify the judge, the court-

appointed attorney had met with S.H.’s father in-person and represented him well,

the filing of motions “within ten days or less of the actual termination trial is telling,”
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and granting the motion and a resulting continuance would be “contrary to the best

interests of the children.” The court also allowed S.H.’s father to ask questions of

witnesses as if he were self-represented until his disruptive behavior required the

court to remove him near the end of the proceedings.

We see no abuse of discretion in denying the last-minute motion for new

counsel. Implicit in the court’s decision is a finding that S.H.’s father was engaged

in a delaying tactic, which is bolstered by the observations of the GAL and the

timing of the request. We defer to this finding and the discretion it conferred upon

the court. See Tejeda, 677 N.W.2d at 750; Lopez, 633 N.W.2d at 779; see also In

re Z.E.P., No. 03-0616, 2003 WL 21459565, at *2 (Iowa Ct. App. June 25, 2003)

(affirming denial of motion for new counsel when “motion to withdraw was made

on the eve of trial,” “granting the motion would have resulted in further delay,” and

there was “no evidence in the trial record that [the] attorney did not adequately

represent [the parent] at the trial”). We also agree with the juvenile court’s

observation that the necessity of a continuance, if new counsel were appointed,

was a valid concern given the strong need to afford these children permanency

after more than three years of juvenile proceedings.

We recognize that part of the attorney’s argument to withdraw below

(repeated on appeal) is that her continued representation of the father after his

request she withdraw violated the rules of professional conduct. But we do not

agree. While the rules of professional conduct provide that an attorney “shall”

withdraw from representation if “the lawyer is discharged,” the comments expressly

recognize that special circumstances inhere in the relationship between a court-

appointed attorney and indigent client. See Iowa R. Prof’l Cond. 32:1.16(a)(3).
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“Whether a client can discharge appointed counsel may depend on applicable

law.” Id. cmt. 5. We see no unethical conduct committed by counsel and find the

rules of professional conduct do not undermine the juvenile court’s decision or

provide any basis for reversal on appeal. And we share the juvenile court’s

observation that, despite the father’s complaints and generally difficult behavior,

counsel has continued to advocate zealously on his behalf through this appeal.

Last, we acknowledge the State’s argument on appeal that, even if there

had been error in denying the motion for new counsel, S.H.’s father cannot prove

prejudice. We agree a showing of prejudice is required. The only allegation in the

petition on appeal that prejudice resulted from denying the motion for new counsel

is that S.H.’s father “believes the harm suffered is that he would have prevailed at

trial had he been represented by a different attorney.” “When complaining about

the adequacy of an attorney's representation, it is not enough to simply claim that

counsel should have done a better job.” Dunbar v. State, 515 N.W.2d 12, 15 (Iowa

1994). Absent any argument about specific deficiencies in counsel’s performance,

which S.H.’s father could have articulated on the record below or on appeal, we

find the lack of prejudice independently requires we deny relief on this claim.

2. Statutory Elements

The father purports to make a challenge to the statutory elements,

essentially arguing that S.H. should be placed with the mother until he is released

from prison. The State contends the father lacks standing to challenge termination

of the mother’s rights, as he conceded below and concedes again on appeal that

he is not presently able to care for the child. We agree with the State. See In re

D.G., 704 N.W.2d 454, 460 (Iowa Ct. App. 2005) (applying the principle that one
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parent cannot assert facts or legal positions pertaining to the other parent as the

court makes a separate adjudication as to each parent). This claim is barred as a

matter of law, and we do not consider it.

3. Best Interests

Assuming without deciding that the father can raise a best-interests

challenge despite his concession and standing problem on the statutory elements,

we would find termination is in the child’s best interests for largely the same

reasons that pertain to the mother. S.H.’s case had been open for five years by

the time of trial, he experienced multiple removals, and he has spent much of his

life outside his parents’ care. We share the juvenile court’s observation that S.H.’s

father’s belief that he will be out of prison in a matter of a few months and able to

resume care of S.H. is “fantastical.” And we agree with the juvenile court’s

observation that S.H.’s father did not substantially comply with any case-plan

expectations or services.

S.H. deserves the stability attendant to termination and wants to be

adopted. This outweighs the hypothetical possibility that perhaps someday, after

a release from incarceration at an unknown time, his father will become a suitable

parent. See A.B., 815 N.W.2d at 778; P.L., 778 N.W.2d at 41. In short, S.H. has

been in limbo long enough, and his best interests are served by termination of the

father’s rights.

4. Permissive Exceptions

S.H.’s father makes a challenge drawing on the permissive exceptions in

section 232.116(3), while recognizing none of the facts he developed fall neatly

into one of the buckets crafted by the General Assembly. See Iowa Code
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§ 232.116(3)(a)–(e) (providing five exceptions: when a relative has legal custody;

the child is over the age of ten and objects; there is clear and convincing evidence

terminating a close bond would be detrimental; the child requires placement in a

hospital or similar facility and declining termination will not hamper a permanent

placement; or the parent’s absence is caused by admission or commitment to a

health facility or by the parent’s military service). We note in reviewing this claim

that many of the facts asserted in this section of the petition on appeal appear to

be based on the father’s testimony at trial, which the juvenile court impliedly

rejected as not credible throughout its ruling. We give weight to that credibility

determination. D.W., 791 N.W.2d at 706. But even if we set aside our deference

to the fact-finder, we would not be persuaded given the other credible record

evidence. We have considered the applicable exceptions, as well as the other

circumstances presented by the father, and we affirm the juvenile court’s

determination no exception applies. See In In re A.S., 906 N.W.2d 467, 475–76

(Iowa 2018) (discussing the permissive exceptions and when they apply).

IV. Disposition

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

and the father’s rights to S.H.

AFFIRMED ON BOTH APPEALS.