In the Interest of D.G. and M.L., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 20-0057
Filed April 15, 2020

IN THE INTEREST OF D.G. and M.L.,
Minor Children,

J.L., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Thomas Mott, Judge.

The mother appeals the termination of her parental rights to two of her

children. AFFIRMED.

Alexandra M. Nelissen of Advocate Law, PLLC, Clive, for appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Magdalena Reese of Juvenile Public Defender, Des Moines, attorney, and

guardian ad litem for minor children.

Considered by Bower, C.J., and Greer and Ahlers, JJ.
2

GREER, Judge.

The mother appeals the termination of her parental rights to two 1 of her

children, D.G., born in 2013, and M.L., born in 2018.2 The mother purports to

challenge whether the children could be returned to her care at the time of the

termination hearing in December 2019, if termination is in the children’s best

interests, and whether a permissive factor in section 232.116(3) precludes

termination. Yet the mother did not testify or present evidence at the termination

hearing. While she did not consent to the termination, she did nothing to rebut the

evidence for termination the State presented—just several exhibits admitted by the

court.3 The juvenile court referenced minimal fact findings in its order terminating

the mother’s parental rights. That being said, there were no factual or credibility

issues in dispute.

First, we question whether the mother waived her right to challenge at least

some issues she now brings up on appeal. Not because she did not present

1 The mother has another child, C.L., who is over the age of ten and is not at issue
in this appeal. The State initially petitioned to terminate the mother’s rights to C.L.
as well, but, at the termination hearing, the State orally moved to remove the oldest
child from the petition. The State asked the court to set a separate hearing on
permanency for the oldest child and to establish a guardianship in the maternal
aunt—with whom C.L. was already living—rather than terminate the mother’s
parental rights. See Iowa Code § 232.104(2)(d)(1) (2019). The Iowa Department
of Human Services (DHS) and the guardian ad litem joined this request. The court
clarified it would note the change in the permanency goal for C.L. and schedule a
hearing. No parent’s rights were terminated as to C.L.
2 The fathers’ parental rights were also terminated. Neither father appeals.
3 The termination proceedings were originally scheduled for September 16 and

then October 25. Over issues about a conflict of interest with at least one of the
attorneys representing a parent, the proceedings were ultimately continued until
December 12. But the exhibits entered at the December 2019 termination hearing,
such as progress reports from the family safety, risk, and permanency provider
and the social worker’s report to the court, are only current through early October
2019.
3

evidence—we acknowledge she could still challenge the juvenile court’s

conclusions without presenting independent evidence—but because of her

attorney’s statements made on the record, which conveyed that the mother knew

she could not resume care of the children. The mother’s attorney stated:

Most recently met with her yesterday evening. At that point in time,
we had conversations regarding the termination, and she
understands what her position is at this point in time. She does not
believe that she can consent to a termination, but certainly is not
offering any independent evidence.
She loves her children deeply and has some pretty significant
concerns, but understands kind of where we’re at with respect to a
termination of parental rights.
....
With respect to the termination, as I stated, I commend [the
mother], quite frankly. I think that I have many clients who come in
kicking and screaming when they know what they have done or have
not done. And I understand that it is extremely difficult to put your
pen to paper—your name to paper and indicate that you are, in her
opinion, giving up on her children. But to be able to recognize where
we’re at and not draw this out for the children, I think, is something
that should be commended on her behalf.

“[T]he mother cannot be heard on appeal to complain about a ruling she agreed

was appropriate.” In re H.S., No. 17-1902, 2018 WL 540998, at *1 (Iowa Ct. App.

Jan. 24, 2018); see also Jasper v. State, 477 N.W.2d 852, 856 (Iowa 1991) (noting

a litigant “cannot deliberately act so as to invite error and then object because the

court has accepted the invitation”).

Even if the mother has preserved a challenge to whether the children could

be returned to her care at the time of the termination hearing, see Iowa Code

§ 232.116(1)(f)(4), (h)(4); In re D.W., 791 N.W.2d 703, 709 (Iowa 2010), we have

little trouble determining they could not. The children were removed in July 2018

after M.L. tested positive for methamphetamine at birth. The mother admitted

using methamphetamine during her pregnancy. And she continued to use it,
4

seemingly up until the December 2019 termination proceedings. Over the course

of the case, the mother had some negative drug tests, but she also missed many

tests and never completed substance-abuse treatment. When she last entered

treatment, in September 2019, she reported using methamphetamine daily. She

left treatment less than three weeks later against the advice of staff. The report

from the mother’s discharge notes that “she lacks personal accountability and the

motivation to change.” And at discharge, with her severe alcohol dependency, the

mother revealed doubts she could stay sober if her rights to her children were

terminated. The mother also experienced serious issues with depression during

the case—a barrier the mother struggled to overcome. DHS tried to help the

mother address her mental health with services for therapy and medication

management, but she was unable or unwilling to follow through with those services

consistently.

Now the mother argues termination of her rights to these children are not in

the children’s best interests because her rights were not terminated to C.L. and

these children will be harmed by that knowledge.4 Knowing their sister continues

4 The mother also claims termination is not in these children’s best interest
because “the children will be deprived of unique important cultural opportunities by
being placed outside of an African American home or a culturally aware home.”
We have little information about the family with whom the children were placed at
the time of the termination proceedings. The maternal great grandmother cared
for the children for much of the pendency of the case, but the children moved into
the home of the great grandmother’s neighbors in September 2019 due to the
grandmother’s health issues. We know nothing else about the neighbor family.
And it is unclear where the children would be placed after the termination of the
mother’s parental rights. As part of the termination order, the juvenile court
ordered that the custody of the children was to transfer to DHS for an appropriate
placement. Nor have we found in the record where the mother raised this concern
to the juvenile court. We do not consider this complaint.
5

to have a relationship with the mother may cause these children some emotional

turmoil. But our review of best interests requires us to focus on the children’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); In re P.L., 778 N.W.2d 33, 37 (Iowa 2010)

(providing that the court must use the framework of section 232.116(2) rather than

“using its own unstructured best-interest test”). The mother could not provide

stability and a safe home for the children—not now and possibly not in the future.

Termination of her parental rights is in D.G.’s and M.L.’s best interests. See In re

J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially) (identifying

“a child’s safety and his or her need for a permanent home as the defining elements

in a child’s best interests”).

Finally, the mother argues section 232.116(3)(b) and (c) should be applied

to save the parent-child relationship. We refuse to consider these claims. The

parent has the burden to prove an exception to termination, see In re A.S., 906

N.W.2d 467, 476 (Iowa 2018), and as we noted before, the mother did not present

any evidence nor make any argument in favor of the preservation of her rights.

She did not even attempt to meet this burden at the termination proceedings, and

she cannot try now on appeal for the first time. In re T.J.O., 527 N.W.2d 417, 420

(Iowa Ct. App. 1994) (“As a general rule, an issue not presented in the juvenile

court may not be raised for the first time on appeal.”).

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

AFFIRMED.