In the Interest of G.B., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 24-1193
Filed October 2, 2024

IN THE INTEREST OF G.B.,
Minor Child,

E.V., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Cynthia S. Finley,

Judge.

A mother appeals the termination of her parental rights, arguing her misfiled

notice of appeal does not deprive this court of jurisdiction and challenging whether

a statutory exception under Iowa Code section 232.116(3) should have precluded

termination. AFFIRMED.

Alexander S. Momany of Howes Law Firm, PC, Cedar Rapids, for appellant

mother.

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

General, for appellee State.

Julie F. Trachta of Linn County Advocate, Inc., Cedar Rapids, attorney and

guardian ad litem for minor child.

Considered by Schumacher, P.J., and Buller and Langholz, JJ.
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LANGHOLZ, Judge.

A mother’s parental rights to her two children—a daughter and a son—were

terminated based on ongoing substance use. While the mother at first engaged in

services, she ultimately consented to terminating her rights to her son and

retreated from further testing or treatment. The State then moved to terminate the

mother’s rights to her daughter under Iowa Code section 232.116(1)(g) (2024).

The juvenile court agreed, finding the mother was unwilling or unable to participate

in further treatment and another period of rehabilitation would be futile. And

because termination served the daughter’s best interest and no statutory exception

was appropriate, the court terminated the mother’s parental rights.

The mother then tried to appeal but filed her notice of appeal in the wrong

case. After our supreme court raised the error, the mother acted quickly—filing a

late notice of appeal in the correct case and still filing her petition on appeal within

fifteen days from the errant notice of appeal. The State responded within its fifteen-

day deadline, and the appeal was ultimately submitted for our consideration no

later than it would have been had the mother’s notice of appeal been timely filed.

To start, we agree with the parties that we have appellate jurisdiction. This

is a permissible delayed appeal because the mother intended to timely appeal, she

was blameless for her counsel’s filing misstep, and the delayed notice of appeal

did not delay the rest of the appellate process at all. But on the merits, we disagree

with the mother’s sole argument that the juvenile court should have applied a

statutory exception to termination because the daughter remained in her father’s

custody. The mother’s persistent substance use poses a danger to the daughter,

and the daughter is best served by permanency in her home. So we affirm.
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I. Factual Background and Proceedings

Two children—an eight-year-old daughter and a three-year-old son—came

to the attention of the department of health and human services (“HHS”) in the

summer of 2023 after their mother tested positive for methamphetamine. The

daughter was in her father’s physical care and had only sporadic visitation with the

mother. The son, however, was from another relationship and was in the mother’s

care. He also tested positive for methamphetamine. Both children were

adjudicated as children in need of assistance (“CINA”) in August, resulting in the

mother losing visitation with the daughter and HHS taking custody of the son.

While the CINA proceedings were pending, the mother struggled to remain

sober. After completing treatment in December 2023, she relapsed about a week

later. And she tested positive for methamphetamine again in late January 2024.

In February, the mother consented to terminating her parental rights to her

son. As a result, the State moved to waive reasonable efforts to reunify the mother

with the daughter. See generally Iowa Code § 232.57(2)(c) (authorizing courts to

waive reasonable-efforts requirement in “aggravated circumstances,” including

when a “parent’s parental rights have been terminated under section 232.116 with

respect to another child who is a member of the same family, and there is clear

and convincing evidence to show that the offer or receipt of services would not be

likely within a reasonable period of time to correct the conditions which led to the

child’s removal”). The court granted the request, noting the mother “has not been

able to demonstrate any extended period of sobriety” and thus it was “unlikely that

the provision of additional services over additional time will alter the outcome.”
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Five days later, the State moved to terminate the mother’s parental rights

to her daughter. The guardian ad litem supported termination, opining the

daughter “is very bonded with her father,” “does not want to have visits with her

mother,” and “does not feel any closeness or other indications of a bond with her

mother.” Indeed, the mother seldom exercised her visitation rights and never

cared for the daughter for extended time periods, and the daughter does not call

her “mom.” The mother also stopped participating in drug testing and could show

no meaningful span of sobriety. So the guardian ad litem felt any contact with the

mother would be unsafe for the daughter.

After a one-day hearing, the juvenile court terminated the mother’s parental

rights on July 9. The court found the mother had “made little to no progress toward

reunification since the case began. She continued to test positive for

methamphetamine and then stopped testing altogether.” Indeed, the mother “was

in substantially the same, or even worse, position as she was in at the onset of the

case.” Because the daughter had been adjudicated as in need of assistance, the

mother’s rights to her son were previously terminated, the mother was unwilling or

unable to participate in corrective services, and another period of rehabilitation

would be futile, the State carried its burden to terminate the mother’s rights under

Iowa Code section 232.116(1)(g). And the court further found termination best

served the daughter and no statutory exceptions were appropriate.

Fifteen days later, the mother filed a notice of appeal stating she was

appealing “from the Order re: Termination of the Parent/Child Relationship entered

on July 9, 2024.” But she mistakenly filed her notice in the CINA action and with

the CINA case number rather than in the termination action with the termination
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case number.1 See Iowa R. App. P. 6.101(1)(a) (requiring notice of appeal to be

“filed in the district court and an informational copy with the supreme court”). Still,

the appeal started down the tracks—the appellate proceeding was docketed,

transcript was ordered, and the attorney general appeared to represent the State.

Our supreme court noticed the filing error and asked the mother to address

whether the error deprived the appellate courts of jurisdiction. The mother acted

quickly—fifteen days after her errant notice of appeal, she filed a corrected notice

of appeal in the termination case and her petition on appeal in the appellate case.

So while her notice of appeal was technically fifteen days late, her petition on

appeal was functionally filed on time. And the State filed its response fifteen days

later. The same day, the supreme court ordered the jurisdictional issue to be

considered with the appeal. The next business day, the mother’s appeal was

transferred to our court and submitted for our consideration without oral argument.

II. Appellate Jurisdiction: Delayed Appeal

We must first consider our jurisdiction over this appeal. Parents appealing

from an order terminating their parental rights must file a notice of appeal “in the

district court and an informational copy with the supreme court within 15 days after

the filing of the order or judgment.” Iowa R. App. P. 6.101(1)(a); see also Iowa

Code § 602.7101(1) (providing that “[t]he juvenile court is within the district court.”).

1 The mother’s counsel explained that he made this error because the juvenile

court’s termination order, while filed in the correct case, listed the CINA case
number in the caption rather than the termination case number and referred to the
CINA case by the termination case number in the text of the order. In its response
to the petition on appeal, the State notes a nunc pro tunc order by the district court
may be appropriate to address this caption issue. We take no position on the
propriety of such an order and do not foreclose either party from seeking that relief
in the district court.
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Failure to comply generally deprives appellate courts of jurisdiction over the

appeal. See In re W.M., 957 N.W.2d 305, 316 (Iowa 2021). This expedited

timeline reflects our state’s policy to achieve permanency and forestall children

languishing “in a state of limbo while the wheels of justice grind through the appeal

process.” In re A.B., 957 N.W.2d 280, 291 (Iowa 2021). At the same time, parents

have constitutionally protected liberty interests in “the care, custody, and control”

of their children. Id. (cleaned up). So we apply our appellate procedures with

these constitutional protections and the unique termination-of-parental-rights

context in mind.

The tension between strictly enforcing expedited deadlines and a parent’s

right to appellate recourse is perhaps most pronounced when “an attorney fails to

timely file the notice of appeal or timely complete the petition on appeal.” Id. at 292.

There, dismissing the errant appeal forecloses a parent’s ability to obtain relief

and, unlike our criminal system, there is no equivalent to postconviction relief for

parents whose rights were wrongly terminated. Id. To resolve this constitutional

tension, our supreme court has authorized a narrow path for parents to pursue

delayed appeals. Id.

Delayed appeals from orders terminating parental rights are permitted only

when a “parent clearly intended to appeal and the failure to timely perfect the

appeal was outside of the parent’s control.” Id. And the resulting delay from an

untimely appeal must be “no more than negligible” to prevent defeating the core

purpose of the expedited deadlines. Id. at 292; see also In re W.T., 967 N.W.2d

315, 319 (Iowa 2021) (explaining the negligible-delay requirement protects “the

strong countervailing interests” of permanency and finality in termination cases).
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Here, the mother’s notice of appeal was filed in the termination action fifteen

days late. But the peculiar record here convinces us that the mother intended to

appeal and is blameless for the filing error. Indeed, the mother’s counsel filed the

notice of appeal unequivocally stating the intent to appeal the termination order

and including the mother’s signature within the fifteen-day deadline—just in the

wrong case. See W.T., 967 N.W.2d at 319–21 (explaining “there is no need to

show extenuating circumstances to support a delayed appeal when the attorney is

at fault for filing a late notice of appeal” because “the reason counsel failed to file

a timely notice of appeal is irrelevant to our reasoning in allowing the appeal to go

forward”). So the first two elements are satisfied and we next consider whether

the error impermissibly delayed the appellate process. See W.M., 957 N.W.2d

at 316.

Under our expedited scheme, a termination appeal progresses in three,

fifteen-day stages. First, a parent has fifteen days to file a notice of appeal. Iowa

R. App. P. 6.101(1)(a). Second, the parent’s petition on appeal is due fifteen days

after the notice of appeal is filed. Iowa R. App. P. 6.201(1)(b). And third, the

State’s response, if any, is due fifteen days after the petition is filed. Iowa R. App.

P. 6.202(2). We thus expect a parent’s appeal to be ready for appellate review no

later than forty-five days after the juvenile court’s termination order.

The mother started this appeal on July 24 by erroneously filing the notice of

appeal in the CINA action. But the mother still filed her petition on appeal fifteen

days later, on August 8—the same day she filed the late notice of appeal in the

termination action and the same day the petition would have been due if the notice

had been timely filed in the correct case. The State responded to the petition
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fifteen days later, on August 23—no later than it would have been required with a

timely notice. Our supreme court raised the jurisdictional issue sua sponte while

this process was ongoing and without slowing it down. And the same day that the

State filed its response to the petition—a Friday—the supreme court ordered the

jurisdictional issue be submitted with the appeal. The following Monday, the

appeal was transferred to our court and immediately submitted to this panel for our

consideration without oral argument.

Reviewing this timeline, the mother’s delayed notice of appeal did not

prolong the appellate process. See W.M., 957 N.W.2d at 316–17 (finding no delay

in the appellate process from an untimely notice when the petition on appeal was

still filed fifteen days from when the notice should have been filed). Indeed, despite

the mother’s filing error, the appellate train kept moving down its express track

without a single day’s delay. So even with the extra jurisdictional statement, the

mother’s case was ready for consideration by our court forty-five days after the

juvenile court’s order. And so, under the governing precedents particular to

parental-rights appeals, we have jurisdiction to proceed to the merits. See id.

III. Exceptions to Termination under Iowa Code section 232.116(3)

Terminating parental rights follows a three-step process. In re L.B., 970

N.W.2d 311, 313 (Iowa 2022). The State must first prove that a statutory ground

for termination exists. Id. Next, the State must show that termination is in the

child’s best interest. Id. And third, the parent bears the burden to show whether

a permissive exception should preclude termination. Id. We review each of these

steps de novo, giving appropriate weight to the juvenile court’s preferred fact-

finding position. A.B., 957 N.W.2d at 293.
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The mother only challenges the third step—whether the court should have

applied a statutory exception to deny termination. We thus do not disturb the

court’s conclusions that the State carried its burden to show clear and convincing

evidence that the mother’s parental rights should be terminated under Iowa Code

section 232.116(1)(g) and that termination is in the daughter’s best interest.

The mother argues the court should have forgone termination because “[a]

relative has legal custody” of the daughter. Iowa Code § 232.116(3)(a). This

exception is permissive, so even if a family member has custody, a court may still

order termination when doing so would serve the child’s best interest. In re A.S.,

906 N.W.2d 467, 476–77 (Iowa 2018). And we agree with the juvenile court that

although the daughter remains in her father’s custody, termination is appropriate.

The daughter has endured significant instability with the mother—multiple

CINA actions, continued substance use, and sporadic visitations. In light of the

mother’s retreat from services leading up to the termination hearing, we see no

benefit to the daughter to delaying permanency in the hopes that the mother will

one day make progress toward sobriety. See In re A.M., 843 N.W.2d 100, 112

(Iowa 2014). Indeed, the “defining elements” of our best-interest inquiry is the

daughter’s safety and “her need for a permanent home.” In re J.E., 723

N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring). Both of these elements are

present here—the mother’s substance use poses a danger to her daughter and

the daughter deserves to be settled in her home after years of instability. Thus,

the juvenile court appropriately declined to apply the permissive exception under

section 232.116(3)(a), and we affirm the termination of the mother’s parental rights.

AFFIRMED.