In the Interest of N.F. and E.F., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 24-1586
Filed December 18, 2024

IN THE INTEREST OF N.F. and E.F.,
Minor Children,

J.F., Father,
Appellant,

D.S., Mother,
Appellant.
________________________________________________________________

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

Judge.

A mother and father separately appeal the juvenile court’s decision to

terminate their parental rights for two children. AFFIRMED ON BOTH APPEALS.

Michael M. Lindeman, Cedar Rapids, for appellant father.

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

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

General, for appellee State.

Robin L. O’Brien Licht, Cedar Rapids, attorney and guardian ad litem for

minor children.

Considered by Tabor, C.J., and Ahlers and Sandy, JJ.
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SANDY, Judge.

The juvenile court terminated a mother’s and father’s parental rights to their

two children pursuant to Iowa Code section 232.116(1)(f) and (h) (2024). The

mother and father separately appeal.

Although the mother and father appeal separately, they make identical

claims on appeal. They contend that (1) the statutory grounds for termination were

not established and (2) the juvenile court erred in not applying a permissible

exception to termination under Iowa Code section 232.116(3).

After our de novo review of the record, we affirm.

I. Background Facts and Proceedings

The mother and father were in an on and off relationship from 2017 to 2020.

The two were never married, but their relationship produced two daughters—N.F.

and E.F. They are the subjects of this appeal. N.F. was born in 2019, and E.F.

was born in 2021. It was E.F.’s birth that first brought the family to the attention of

the Iowa Department of Health and Human Services (HHS). At birth, E.F. tested

positive for methamphetamine. This led to the first child-in-need-of-assistance

(CINA) case involving the children. The mother and father both acknowledge they

have an extensive history with substance-use issues. The mother has used

methamphetamine since she was twenty, and the father has used

methamphetamine since he was fifteen.

Following an investigation by HHS after E.F’s birth, the State filed a CINA

petition with the juvenile court in Black Hawk County. N.F. and E.F. were

adjudicated in need of assistance in September 2021 and placed with their

paternal grandmother. In April 2022, the juvenile court held a permanency hearing.
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However, the juvenile court deferred entering a permanency order and granted the

mother a six-month extension because she had recently been admitted to an

inpatient treatment facility. The juvenile court warned the mother she was “on her

last chance and must work very diligently toward her sobriety and completing the

case permanency plan.”

The mother made an “exceptional turnaround” after entering the inpatient

treatment facility. The mother took her sobriety seriously and complied with all

random drug testing requirements. All parties agreed N.F. and E.F. could return

to the mother’s care and that a bridge order would be appropriate to close the CINA

case. In December 2022, that case was closed through a bridge order granting

the mother and father joint legal custody of the children. However, the mother was

granted physical care.

Following the closure of the first CINA case via a bridge order, the mother

moved with the children to an apartment in Cedar Rapids. The mother could not

maintain her sobriety following her move. In early April, HHS received reports

alleging the mother was under the influence of methamphetamine while caring for

the children. HHS went to investigate at the mother’s apartment and discovered

she had voluntarily placed the children in the care of their paternal grandmother.

She admitted to HHS that she had recently relapsed and was in no position to care

for the children at the time. The mother later signed a safety plan with HHS,

agreeing that the children should remain with their grandmother until further

advised by HHS. The mother later completed a substance-use evaluation and was

admitted to an inpatient treatment facility. However, she no-showed to her

appointment to be admitted to the treatment facility. During this time, the father
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was incarcerated at the Mount Pleasant Corrections Facility. The father has been

in and out of incarceration for most of the children’s lives.

The State subsequently filed a CINA petition on April 20. A hearing on the

petition was held a few days later. In its dispositional order, the juvenile court noted

the mother and father stipulated that the children were in need of assistance.

Based on this stipulation, the children were adjudicated CINA. The juvenile court

placed the children in the custody of HHS for purposes of relative placement. The

children were placed with their grandmother. The mother was ordered to complete

a substance-use and psychological evaluation and comply with any

recommendations thereto. She was also ordered to drug test four times per month.

Similarly, the father was ordered to complete a substance use evaluation and drug

test four times per month.

The mother and father failed to make meaningful progress in addressing

their substance use issues. The mother completed a substance-use evaluation in

June 2023 and completed extended outpatient treatment. But in November 2023,

she showed up to a meeting with her substance-use counselor and disclosed she

had relapsed. Her counselor set up an appointment to restart extended outpatient

treatment, but the mother showed up to this appointment and stated she could not

stop using methamphetamine. She then requested she be referred for inpatient

treatment.

The mother was referred to inpatient treatment and was admitted to a

treatment facility in Mason City near the end of December 2023. However, after a

week of treatment, she was unsuccessfully discharged from the facility after being

discovered with a nicotine vape pen. She had been warned by the facility’s staff
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that being caught with such a device could lead to a premature discharge. During

this same time, the mother frequently failed to comply with her court-ordered drug

testing requirements. The mother was given fifty-nine opportunities to drug test

but only completed twenty-one tests for HHS. She no-showed for thirty-seven

tests. Of the twenty-one completed tests, nine tests came back positive for

methamphetamine, marijuana, or both. She last tested positive for

methamphetamine on February 28, 2024. However, she tested positive for

marijuana as recently as March 28.1

As for the father, he was released from the Mount Pleasant Correctional

Facility in June 2023. Following his release, he took up residence at a halfway

house in Waterloo. He initially began drug testing with his parole officer but

stopped soon after his release. The father never completed a substance-use

evaluation or drug tested for HHS. In September 2023, he sent a text message to

an HHS worker telling her he had recently used methamphetamine. He then

checked himself into an inpatient treatment facility, but he left after spending only

one day at the facility. The father was also evicted from an apartment he had

secured in Waterloo due to his continued drug use.

Additionally, during the fall of 2023, a warrant was issued for the father’s

arrest due to parole violations. The father avoided contact with HHS employees

out of fear that he would be arrested if he met with any HHS employee. For the

same reason, he did not have any visits with his children while the warrant was

1 The record discloses the mother may have received a medical marijuana card.

She did not provide the medical marijuana card to HHS or the juvenile court, but
she did provide receipts from a medical marijuana dispensary.
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outstanding. In March 2024, the father overdosed on methamphetamine and

fentanyl. After receiving treatment at the hospital for his overdose, the father was

arrested on his outstanding warrant. However, he was subsequently released and

placed in a community-based correctional facility.

After several permanency review hearings, the children were determined to

remain in need of assistance, and their placement with the grandmother was

ordered to continue. Due to the mother’s and father’s failure to make progress in

addressing their substance-use issues, the State filed a termination petition in

February. A termination trial was held in April. During the trial, the juvenile court

heard testimony from Taylor Tanner, Nicole Myers, and the father. Tanner is

employed as a peer mentor at Families First—a contracted service provider for

HHS—and worked extensively with the family on this case. Myers is employed as

a social worker with HHS and has worked with the family since October 2023. The

mother did not appear or participate at the trial. However, her attorney appeared

on her behalf.

Both Tanner and Myers expressed that the mother and father made very

little progress throughout the course of the case. Myers testified that neither parent

progressed beyond fully supervised visits with the children. Myers also noted HHS

had concerns about the mother’s mental health. The record shows the mother

underwent a psychological evaluation in August 2023 and was diagnosed with

bipolar disorder, general anxiety disorder, stimulant use disorder, and post-

traumatic stress disorder. Myers acknowledged the mother did participate in

medication management for her mental health, but she testified the mother never
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participated in recommended therapy. Myers stated she believed the children

could not be returned to the care of either parent at this time.

The juvenile court subsequently issued its termination order in September

2024 terminating the mother’s and father’s parental rights pursuant to Iowa Code

section 232.116(1)(h) and (f). The mother and father now separately appeal.

II. Standard of Review

“In termination-of-parental-rights cases, we review the proceedings de

novo.” In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). “There must be clear and

convincing evidence of the grounds for termination of parental rights.” Id.

III. Analysis

We use a three-step analysis in reviewing the juvenile court’s termination of

parental rights. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). We analyze whether

(1) a statutory ground for termination has been established; (2) whether

termination is in the children’s best interest; and (3) whether any permissive

exceptions should be applied to preclude termination. In re A.B., 957 N.W.2d 280,

294 (Iowa 2021).

With this framework in mind, we address the mother’s and father’s appeals

separately.
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A. Mother’s Appeal

1. Statutory Grounds2

The mother’s parental rights for N.F. were terminated under Iowa Code

section 232.116(1)(f). This section provides that a parent’s parental rights may be

terminated if:

The court finds that all of the following have occurred:
(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(3) The child been removed from the physical custody of the
child’s parents for at least twelve of the last eighteen months, or for
the last twelve consecutive months and any trial period at home has
been less than thirty days.
(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents
as provided in section 232.102.

Id.

The mother’s parental rights for E.F. were terminated pursuant to paragraph (h),

which provides that the juvenile court may terminate parental rights if:

The court finds that all of the following have occurred:
(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

2 The State contends neither the mother nor the father preserved error on their

statutory-grounds arguments. With the mother’s argument, the State asserts she
does not challenge the statutory grounds for terminating her parental rights to N.F.
under section 232.116(1)(f). We believe the State overlooks that the mother’s
petition explicitly references paragraph (f) and provides argument as to why the
elements of this paragraph were not met. Regardless, a failure to cite legal
authority and advance an argument on an issue does not implicate our error
preservation doctrine. Instead, it raises an issue of waiver. See Baker v. City of
Iowa City, 750 N.W.2d 93, 102 (Iowa 2008) (noting failure to advance an argument
and cite legal authority in support of the argument may be deemed waiver of the
issue). We address whether the father waived his statutory grounds argument
below.
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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.

Id. § 232.116(1)(h). On appeal, the mother only challenges the fourth element of

the two statutory grounds for termination—that the children cannot be returned to

her custody at the present time. She argues she was never “viewed as a danger

to her daughters.” To bolster this argument, she notes “[t]here were no indicators

that [she] was under the influence during a visit.” She also points out “[t]here were

no accusations of violent behavior.” Thus, she seems to believe the children can

be returned to her custody. We disagree.

Our supreme court has previously interpreted “present time”—as used in

section 232.116(1)(f) and (h)—to mean “at the time of the termination hearing.” In

re A.S., 906 N.W.2d 467, 473 (Iowa 2018). At the time of the termination hearing,

the mother had a long and extensive history of substance-use issues. And chronic

substance issues render a parent unable to safely and effectively care for children.

See In re A.B., 815 N.W.2d 764, 776 (Iowa 2012) (“We have long recognized that

an unresolved, severe, and chronic drug addiction can render a parent unfit to raise

children.”).

And although the mother reported to HHS that she had been sober since

January 2024, the record belies this claim. She tested positive for

methamphetamine on February 28, 2024. Additionally, she tested positive for

marijuana as recently as March 28, 2024. And while the record discloses she may

have received a medical marijuana card, this in no way means she is sober.

Regardless, a parent’s short period of sobriety prior to a termination trial is not
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sufficient to demonstrate that the children are able to safely return to their care.

See In re R.M.-V., No. 24-0924, 2024 WL 3688598, at *3 (Iowa Ct. App. Aug. 7,

2024) (“The short period of sobriety preceding termination does not demonstrate

the mother’s ability to immediately resume custody of her child.”).

Further, the mother’s history with substance use was not the only concern

precluding the children from being returned to her custody at the time of the

termination trial. There were also concerns over her mental health. While the

mother did take some steps to address her mental health, such as medication

management, she failed to comply with HHS’s recommendation of therapy. We

find the mother’s lack of commitment to addressing her mental health also supports

the conclusion the children could not have been returned to her custody at the time

of the termination hearing. See In re N.G., No. 23-0097, 2023 WL 2669845, at *3

(Iowa Ct. App. Mar. 29, 2023) (finding a mother’s minimal progress in addressing

her mental health precluded the child from being returned to her at the time of

termination).

Accordingly, we find the evidence is clear and convincing that the children

could not be returned to the mother’s custody at the time of the termination hearing.

Thus, the statutory grounds for termination under section 232.116(1)(f) and (h)

were established.

2. Bests Interests

After finding the statutory grounds for termination have been met, we

ordinarily move on to the second step and consider whether termination is in the

children’s best interest. However, the mother does not put forward an argument

regarding the children’s best interests. Accordingly, we decline to analyze this
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step. See In re J.M., No. 23-0907, 2023 WL 5607120, at *3 (Iowa Ct. App. Aug.

30, 2023) (“[I]n instances where the parent does not raise a claim relating to one

of the three steps, we limit our review to the claims presented.”).

3. Permissive Exception

In her final argument, the mother asserts the juvenile court erred by not

applying a permissive exception to termination. She contends the exception to

termination provided by Iowa Code section 232.116(3)(c) should have been

applied due to the children’s close bond with her. Section 232.116(3)(c) provides

the juvenile court may decline to terminate a parent’s parental rights if “[t]here is

clear and convincing evidence that termination would be detrimental to the child at

the time due to the closeness of the parent-child relationship.”

We decline to reach the merits of this argument because the mother has

not preserved error on this claim. We reach this conclusion because the mother

never raised the issue of a permissive exception with the juvenile court. See In re

E.W., No.22-0647, 2022 WL 2347196, at *3 (Iowa Ct. App. June 29, 2022) (finding

father did not preserve error on his claim regarding the applicability of an exception

to termination because he did not raise the issue in the juvenile court). And

although the State does not contest preservation on this issue, we have an

independent duty to assess whether error was preserved. See Top of Iowa Coop

v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (“In view of the range of

interests protected by our error preservation rules, this court will consider on
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appeal whether error was preserved despite the opposing party’s omission in not

raising this issue at trial or on appeal.”).3

We affirm the termination of the mother’s parental rights.

B. Father’s Appeal

1. Statutory Grounds

In his first argument on appeal, the father only argues the State did not

establish the statutory grounds for termination under Iowa Code

section 232.116(1)(h). He contends “the Court should enter an order finding that

the State of Iowa failed to meet their burden to show by clear and convincing

evidence that the conditions of Iowa Code section 232.116(1)(h) were met and

deny the State’s request to terminate.” The father does not specify which elements

under paragraph (h) he believes were not established. It is worth highlighting that

only his parental rights for E.F. were terminated under paragraph (h).

We find the father has waived this cursory argument on appeal. See In re

A.V., No. 23-1916, 2024 WL 1757554, at *5 (Iowa Ct. App. Apr. 24, 2024) (“Without

developing how the facts in this record support [his] position or citing legal

authority, we find that this argument is waived” (alteration in original)).4

3 The mother argues that she should be granted an additional six months to work

toward reunification. But because she never raised the issue of a six-month
extension in the juvenile court, we find she has not preserved this claim for appeal.
See State v. Ruttledge, 600 N.W.2d 324, 325 (Iowa 1999) (“Nothing is more basic
in the law of appeal and error than the axiom that a party cannot sing a song to us
that was not first sung in the trial court.”).
4 To the extent the father may have intended to argue that the statutory grounds

for termination of his parental rights for N.F. were not established under
section 232.116(1)(f), we find this argument was waived by not advancing it on
appeal. See Baker, 750 N.W.2d at 102.
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2. Best Interest

Like the mother, the father does not make an argument that termination of

his parental rights is not in the best interests of the children. Accordingly, we

decline to conduct an analysis under this step of our termination framework. See

J.M., 2023 WL 5607120, at *3.

3. Permissive Exception

Moving on, the father argues the juvenile court should have applied a

permissive exception to termination. Specifically, he argues the permissive

exception to termination under Iowa Code section 232.116(3)(c) should have been

applied by the juvenile court due to his close bond with the children. As discussed

earlier, this exception permits the juvenile court to decline to terminate a parent’s

parental rights if the evidence is clear and convincing termination would be

detrimental to a child due to the closeness of the bond the child has with the parent.

See Iowa Code § 232.116(3)(c).

However, we decline to consider the merits of this claim because the father

never raised this issue in the juvenile court. Thus, he has not preserved error on

this claim. See E.W., 2022 WL 2347196, at *3. We acknowledge the State does

not contest error preservation on this issue, but we have a duty to assess whether

error was preserved sua sponte. See Top of Iowa Coop, 608 N.W.2d at 470.5

We affirm the termination of the father’s parental rights.

5 The father asserts in passing he should be granted an additional six months to

work toward reunification. He requested a six-month extension during the
termination trial. However, he cites no legal authority and provides no facts from
the record to support this argument in his petition. Accordingly, we find this
argument is waived. See Baker, 750 N.W.2d at 102.
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IV. Conclusion

To summarize, we affirm on both appeals. With the mother’s appeal, we

find (1) the State established by clear and convincing evidence the statutory

grounds for termination and (2) she did not preserve error on her claim that the

juvenile court should have applied a permissive exception to termination. With the

father’s appeal, we find that (1) he waived his challenges to the statutory grounds

for termination and (2) he did not preserve error on his claim that the juvenile court

should have applied a permissive exception to termination.

AFFIRMED ON BOTH APPEALS.