IN THE COURT OF APPEALS OF IOWA

No. 19-1177

Filed June 3, 2020

IN THE INTEREST OF O.R.,

Minor Child,

K.R., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, 

District Associate Judge.

A mother appeals the termination of her parental rights to one of her 

children. AFFIRMED.

Katharine Massier of Branstad & Olson Law Office, Des Moines, for 

appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney 

General, for appellee State.

Nicole Garbis Nolan of Youth Law Center, Des Moines, attorney and 

guardian ad litem for minor child.

Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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VAITHESWARAN, Presiding Judge.

A mother appeals the termination of her parental rights to one of her 

children, born in 2008. She contends (1) the record lacks clear and convincing 

evidence to support termination under Iowa Code section 232.116(1)(d) (2019);

(2) the department of human services failed to make reasonable efforts to reunify 

her with her child; and (3) “the juvenile court erred in denying [her] motion to 

bifurcate the roles of [the child’s] attorney and [guardian ad litem].”

I. Grounds for Termination

The court of appeals recently addressed the termination of the mother’s

parental rights to another child. See In re M.S., No. 19-1550, 2020 WL 377889 

(Iowa Ct. App. Jan. 23, 2020). We found the department intervened after learning

“that the man with whom the mother was having a relationship asked the nineyear-old [half-sibling of the] child to engage in sex acts.” M.S., 2020 WL 377889,

at *1. This appeal involves the nine-year-old half-sibling.

The district court terminated the mother’s parental rights to the child under 

several statutory grounds. The mother only challenges the evidence supporting 

one of the provisions. Accordingly, she has waived error with respect to the 

remaining grounds. In re N.S., No. 14-1375, 2014 WL 5253291, at *3 (Iowa Ct. 

App. Oct. 15, 2014) (“When the juvenile court terminates parental rights on more 

than one statutory ground, we may affirm the order on any ground we find 

supported by the record. The mother’s failure to raise the remaining statutory 

grounds for termination waives any claim of error related to those grounds.”). That 

said, our de novo review of the record convinces us that termination was warranted 
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under Iowa Code section 232.116(1)(f), which requires proof of several elements,

including proof the child cannot be returned to the mother’s custody.

II. Reasonable Efforts

The mother argues the department failed to make reasonable efforts to 

reunify her with the child. See In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (noting 

that specified termination grounds “contain a common element which implicates 

the reasonable effort requirement”). She asserts (a) the department “cancelled a 

significant number of . . . visits”; (b) she was not afforded a “professional opinion 

from a psychiatrist or psychologist regarding her parenting ability” and was not 

assigned a court appointed special advocate; and (c) she was denied her rights to 

equal protection and due process as guaranteed by the United States and Iowa 

Constitutions. 

We addressed certain cancelled visits in our prior opinion. M.S., 2020 WL 

377889, at *2. We agreed with the mother that the department did not hold several 

visits but noted that the missed time was made up. Id. We concluded “the 

department satisfied its reasonable-efforts mandate.” Id. 

In this proceeding, the mother filed a “renewed motion for reasonable 

efforts” listing a series of canceled visits with the nine-year-old child. She asserted 

the child “received only 13.5 hours of visits with her mother as of March 12, 2019,”

which was “still 8.5 hours short.” At the termination hearing, the mother testified 

to having “minimal” visits with the child in 2019, but she did not document the 

number of missed visits or mention the shorted hours. Although her attorney 

attempted to raise the issue during closing argument, the guardian ad litem 

objected as beyond the scope of the record. The mother’s attorney conceded she 
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did not elicit testimony on missed visits “in this action.” Without a record, we cannot 

address the issue. See State v. Christianson, 337 N.W.2d 502, 504 (Iowa 1983)

(stating it is generally an appellant’s “obligation to provide this court with a record 

affirmatively disclosing the error relied upon” and an appellant “may waive error by 

failing to provide us with a record that affirmatively shows the basis of the alleged 

error.” (citations omitted)). 

We turn to the mother’s request for a psychiatric or psychological opinion 

about her parenting ability. The mother concedes the district court did not address 

the issue. Accordingly, we question whether error was preserved. See Meier v.

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of 

appellate review that issues must ordinarily be both raised and decided by the 

district court before we will decide them on appeal.”). Bypassing that concern, the 

record contains the following opinion of the mother’s therapist on impediments to 

appropriate parenting:

[The mother] has been able to voice understanding of safety 

concerns with her children. As a result of this, [she] has reported a 

termination in her relationship with her boyfriend and a change in 

address to reflect this termination. [The mother] is engaged in 

session and is open and receptive to feedback at this time. Therapist 

will continue to work with client on increasing affect tolerance, 

emotional integration and how her past experiences are impacting 

her current parenting practices.

Several days after the therapist submitted the letter, the department reported that 

the mother “was not honest with her therapist or the children’s therapist about the 

nature of her relationship with the” man and, specifically, her ongoing sexual 

relationship with him. Just before the termination hearing, the mother’s therapist 

updated her opinion. She noted that the mother later corrected the misinformation 
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and told her of her continued “sexual relationship with the man.” The therapist 

opined that the mother needed to “gain more insight on how her co-parenting 

relationship with” the man “could impact this child” and needed to set “healthy, 

realistic expectations for this relationship.” In short, the record contains a mentalhealth professional’s opinion about the mother’s parenting ability, obviating the 

need for the department to schedule another evaluation, as the mother requested. 

The mother also argues a court appointed special advocate (CASA) should 

have been provided. The district court addressed the issue as follows: 

I know there was no evidence presented to this Court . . . today

regarding lack of a CASA being provided. I will be clear on the 

record. The Court can order them, but if there’s not CASA’s 

available, this Court cannot compel a voluntary agency to engage in 

a service that they provide to the Court when they have availability.

There was no evidence before the Court today regarding a CASA. 

In light of the absence of evidence on the issue, we again question whether error 

was preserved. We bypass that concern and proceed to the merits. 

A “court appointed special advocate” is defined as:

a person duly certified by the child advocacy board created in section 

237.16 for participation in the court appointed special advocate 

program and appointed by the court to represent the interests of a 

child in any judicial proceeding to which the child is a party or is called 

as a witness or relating to any dispositional order involving the child 

resulting from such proceeding.

Iowa Code § 232.2(9). The definition does not charge a CASA with making 

reasonable reunification efforts; that obligation rests with the department. See id. 

§ 232.102(4)(b) (“If the court transfers custody of the child, unless the court waives 

the requirement for making reasonable efforts or otherwise makes a determination 

that reasonable efforts are not required, reasonable efforts shall be made to make 

it possible for the child to safely return to the family’s home.”), (10)(a) (defining 
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“reasonable efforts” as “the efforts made to preserve and unify a family prior to the 

out-of-home placement of a child in foster care or to eliminate the need for removal 

of the child or make it possible for the child to safely return to the family’s home”); 

C.B., 611 N.W.2d at 493–94 (describing the scope of the efforts by the 

department). Accordingly, we conclude the absence of a CASA did not implicate 

the department’s reasonable efforts mandate. 

Finally, the mother’s constitutional challenges to the claimed denial of 

services were neither raised nor decided. Error was not preserved. See In re 

Voeltz, 271 N.W.2d 719, 722 (Iowa 1978).

III. Conflict

The district court appointed counsel to serve as the child’s attorney and as

her guardian ad litem. The mother contends the court should have bifurcated the 

roles because, in her view, the guardian ad litem “held a strong position that [the 

child] should not return to her,” which was “clearly a conflict between [the child]’s 

stated wishes.” 

Iowa Code section 232.89(4) addresses the roles of guardian ad litem and 

counsel for a child:

[T]he court may appoint a separate guardian ad litem, if the same 

person cannot properly represent the legal interests of the child as 

legal counsel and also represent the best interest of the child as 

guardian ad litem, or a separate guardian ad litem is required to fulfill 

the requirements of subsection 2.

Iowa Code section 232.89(2)(a), in turn, states: 

If the child is represented by counsel and the court determines there 

is a conflict of interest between the child and the child’s parent, 

guardian or custodian and that the retained counsel could not 

properly represent the child as a result of the conflict, the court shall 
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appoint other counsel to represent the child, who shall be 

compensated pursuant to the provisions of subsection 3.

This court addressed a conflict-of-interest situation in In re A.T., 744 N.W.2d 657, 

660 (Iowa Ct. App. 2007). The court stated, “[T]he older, more intelligent, and 

mature the child is, the more impact the child’s wishes should have, and a child of 

sufficient maturity should be entitled to have the attorney advocate for the result 

the child desires.” A.T., 744 N.W.2d at 663.

Here, the department obtained a social worker’s opinion stating the child 

was “immature for her age” and “[h]er thinking [was] impulsive at times.” At the 

termination hearing, the district court noted that it previously “addressed this issue”

and “made specific findings based on the therapist input that she does not believe 

that this child is of an emotional age, even if she is 11 at this time, to have an 

opinion regarding that matter.” We discern no abuse of discretion in the court’s 

ruling. See id. at 665 (setting forth standard of review).

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

AFFIRMED.