In the Interest of N.R., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 23-0889
Filed August 30, 2023

IN THE INTEREST OF N.R.,
Minor Child,

J.R., Mother,
Appellant,

A.B., Father,
Appellant.
________________________________________________________________

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

District Associate Judge.

A mother and father separately appeal the termination of their parental

rights. MOTHER’S APPEAL DISMISSED; AFFIRMED ON FATHER’S APPEAL.

Robert W. Davison, Cedar Rapids, for appellant mother.

Melody J. Butz of Butz Law Offices, PC, Center Point, for appellant father.

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

General, for appellee State.

Kimberly Opatz of Linn County Advocate, Cedar Rapids, attorney and

guardian ad litem for minor child.

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

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

(2023).
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VOGEL, Senior Judge.

The mother and father separately appeal the termination of their parental

rights to N.R., born in 2020. The family came to the attention of the Iowa

Department of Health and Human Services (HHS) in April 2022 when, due to the

mother’s recent arrest and the father’s ongoing incarceration, no one was available

to care for the child. The child was soon adjudicated as being in need of assistance

and removed from the parents’ custody. After HHS offered several months of

services, the State filed the petition to terminate parental rights in January 2023.

The matter proceeded to a termination trial in May, after which the juvenile court

terminated the rights of both parents. The mother and father separately appeal.

We review the termination of parental rights de novo. In re W.T., 967 N.W.2d 315,

322 (Iowa 2021).

I. The Mother’s Appeal

Before we can consider the merits of the mother’s appeal, we must decide

if we have jurisdiction to hear it. On May 22, 2023, the juvenile court issued the

termination order. On June 2, the mother timely filed her notice of appeal. On

June 23, the supreme court entered an order explaining the mother’s petition was

due June 191 and ordering her to file a statement explaining why the appeal should

not be dismissed. The mother filed her petition later that day. On June 24, the

mother, through her attorney, filed a response asking the court to accept a delayed

appeal and asserting: her attorney intended to file the petition at the same time he

filed the notice of appeal; “through inadvertence, [her attorney] did not file the brief

1 See Iowa R. App. P. 6.201(1)(b).
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that day thinking he had done so”; and her attorney “immediately filed” the petition

upon being notified he had not done so. The supreme court transferred the

delayed-appeal issue to our court to be decided with the appeal.

“[A] delayed appeal is allowed ‘only where the parent clearly intended to

appeal,’ the ‘failure to timely perfect the appeal was outside of the parent’s control,’

and the delay was ‘no more than negligible.’” W.T., 967 N.W.2d at 322 (quoting In

re A.B., 957 N.W.2d 280, 292 (Iowa 2021)). We accept the statements of the

mother’s attorney and find the first two factors satisfied. See id. The question

becomes whether the mother’s five-day delay in filing her petition is “no more than

negligible.” Id. (citation omitted).

Since the supreme court set out the delayed-appeal factors in A.B., 957

N.W.2d at 293, we have not accepted a delayed appeal more than three days late.2

See In re B.W., No. 21-1810, 2022 WL 468945, at *3 (Iowa Ct. App. Feb. 16, 2022)

(“Given the expedited nature of child-welfare appeals, three days may be pushing

the limit of what can be considered negligible.”); see also In re K.P., No. 21-1809,

2022 WL 468943, at *2 (Iowa Ct. App. Feb. 16, 2022) (“While we do not reach the

third factor . . . we are skeptical that a four-day delay would be considered no more

than negligible.”). Here, the mother filed her petition five days late. See Iowa R.

2 As with the mother here, A.B. involved a timely notice of appeal but a late petition.

See 957 N.W.2d at 289. Since then, we note most requests for a delayed appeal
have involved a late notice of appeal. See W.T., 967 N.W.2d at 318; In re W.M.,
957 N.W.2d 305, 316 (Iowa 2021); B.W., 2022 WL 468945, at *2–3; K.P., 2022
WL 468943, at *1–2. Nevertheless, we apply the same three-factor test and find
our delayed-appeal precedents instructive for all parental-rights cases, regardless
of whether the notice of appeal was delinquent or only the petition. See W.M., 957
N.W.2d at 316 (“We do not find the distinction between a late notice of appeal and
a late petition on appeal material to whether a delayed appeal should be
considered.”).
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App. P. 6.201(1)(b) (requiring the petition for a termination-of-parental-rights

appeal to be filed “within 15 days after the filing of the notice of appeal”). We

accept the mother’s attorney’s explanation of the delayed filing of the petition, and

that his inadvertence was outside of the mother’s control. Nevertheless, our

supreme court has instructed us that the reason counsel failed to timely file “is

irrelevant.” W.T., 967 N.W.2d at 322. Relying on our precedent, we find the

mother’s five-day delay in filing her petition is more than negligible, and we dismiss

her appeal. See id.

We are also mindful that a delinquent filing “caused by counsel’s negligence

[raises] additional concerns about whether the attorney rendered ineffective

assistance.” Id. at 320. While the mother does not raise an ineffective-assistance-

of-counsel claim, our de novo review of the record convinces us we would affirm

termination of the mother’s parental rights if we were to reach the merits of her

appeal. She has not adequately addressed her mental-health and substance-

abuse issues; she concealed important information from HHS throughout the

proceeding; and her recent progress is too little, too late.

II. The Father’s Appeal

The father argues the State failed to provide him with reasonable efforts

toward reunification. “The State must show reasonable efforts as a part of its

ultimate proof the child cannot be safely returned to the care of a parent.” In re

C.B., 611 N.W.2d 489, 493 (Iowa 2000). The parent must object to services “early

in the process so appropriate changes can be made.” Id. at 493–94. “In general,

if a parent fails to request other services at the proper time, the parent waives the
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issue and may not later challenge it at the termination proceeding.” In re C.H., 652

N.W.2d 144, 148 (Iowa 2002).

On appeal, the father argues the State should have provided him with

visitation in prison. However, the only additional service the father requested

before the termination trial was participation in a reading program. Even during

the termination trial, the father acknowledged the State “made some kind of efforts”

toward reunification and all he wanted was “a little more time.” Because the father

did not timely request visitation, his challenge to the lack of visitation is not

preserved for our review. See C.H., 652 N.W.2d at 148.

Next, the father argues termination of his parental rights is not in the child’s

best interests. See Iowa Code § 232.116(2) (2023). The father is currently serving

his third separate prison sentence since 2010. Most recently, he was imprisoned

before the child was born, and he is not scheduled for release until 2027, though

he is confident he will qualify for early release before then. To his credit, the father

has participated in several life-skills programs while incarcerated. However, he

has never met the child, and his contact with the child and the foster family has

been limited to phone calls. Considering the father’s significant history of

incarceration, his minimal relationship with the child, an absence of any

demonstrated parenting ability, and uncertainty over when he will be released from

prison, we agree termination is in the child’s best interests. See In re L.L., 459

N.W.2d 489, 495 (Iowa 1990) (“Children simply cannot wait for responsible

parenting.”).

The father also asserts that, because he is African-American and N.R. is bi-

racial, termination would inappropriately separate the child from “family who share
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his ethnicity and ethnic traditions.” However, HHS’s efforts to find a permanent

placement for the child are not before us in this appeal. We also note the child is

placed with a half-sibling and the foster parents are willing to adopt, which would

preserve a family connection for the child. To the extent the father requests an

additional six months for reunification, he acknowledges he would not be in a

position to take custody of the child within six months even if he obtains early

release as soon as he hopes. See W.T., 967 N.W.2d at 323 (“[T]he juvenile court

may deny termination and give the parent an additional six months for reunification

only if the need for removal ‘will no longer exist at the end of the additional six-

month period.’” (quoting Iowa Code § 232.104(2)(b))).

MOTHER’S APPEAL DISMISSED; AFFIRMED ON FATHER’S APPEAL.