IN THE COURT OF APPEALS OF IOWA

No. 19-1118

Filed November 6, 2019

IN THE INTEREST OF J.R. and D.R.,

Minor Children,

J.R., Mother,

Appellant,

R.R., Father,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Warren County, Brendan Greiner, 

District Associate Judge.

A mother and father appeal the termination of their parental rights. 

AFFIRMED ON BOTH APPEALS.

Tara M. Elcock of Elcock Law Firm, PLC, Indianola, for appellant mother.

Blake D. Lubinus of Lubinus & Merrill, P.L.C., Des Moines, for appellant 

father.

Thomas J. Miller, Attorney General, and Anna T. Stoeffler (until withdrawal) 

and Mary A. Triick, Assistant Attorneys General, for appellee State.

M. Kathryn Miller of Juvenile Public Defender Office, Des Moines, attorney 

and guardian ad litem for minor children.

Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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DOYLE, Presiding Judge.

A mother and father separately appeal the termination of their parental 

rights. Upon our de novo review, we affirm on both appeals.

I. Background Facts and Proceedings.

J.R. is the mother and R.R. is the father of J.R., born in 2004, and D.R., 

born in 2005. In June 2017, the children were removed from the parents’ care 

after the family home was found to be inhabitable; it was also alleged the parents 

were using methamphetamine. The children were placed in the custody of their 

adult half-brother under the supervision of the Iowa Department of Human 

Services (DHS). The children were adjudicated as children in need of assistance 

(CINA), and services for reunification of the family were offered to each parent. 

The parents were directed that each parent would “need to address substance use 

as evidenced by [engagement] with [appropriate] mental health and substance 

abuse treatment” before the DHS could recommend the children be returned to the 

parents’ care. The parents were advised each would need to learn and show “age 

appropriate parenting with problem solving and communication methods needed 

to keep the children safe and meet their needs,” which they would show by 

“modeling these skills in front of the children.”

A permanency review hearing took place on July 6, 2018, under Iowa Code 

section 232.104 (2018). Before a permanency order was entered, the children’s 

attorney and guardian ad litem on September 14, 2018, filed a motion requesting 

that visitation between the parents and children be suspended. The motion stated 

the parents’ behavior had “become so erratic, hostile, and out of control” the 

children did not want to have contact with the parents until they could show their 
3

visits would be positive. One of the children reported the mother came to the 

child’s place of employment and made a scene noted by the child’s employer. The 

parents had also been asked not to come to the guardian’s home but continued to 

do so. The parents reported to the DHS the guardian and his spouse had tried to 

run the parents off the road, but the children, their guardian, and his spouse all 

denied this happened.

On September 20, 2018, a hearing on the children’s motion to suspend 

visitation was held. The children testified at the hearing. Among other testimony, 

one child testified it was his preference that the parents not come to his football 

games; it made him “a little bit anxious to wonder what they might do when [he’s] 

there at the game.” Though there had been no issues with his parents at his games 

before, the child did not think having them there “seem[ed] very safe” and found 

their behavior to be unpredictable.

Four days later, the juvenile court entered its permanency order. The court 

found the parents had been unable “to successfully complete substance-abuse 

treatment, therapy and visitation” as directed. Even so, the juvenile court found 

termination of the parents’ parental rights was not in the children’s best interest at 

that time “due to the age of the children, bond established and potential loss of 

public benefits and inheritance.” The court opted to establish a guardianship of 

the children with their elder sibling and his wife as guardians, finding it was the 

least restrictive disposition and in the children’s best interests. The court did not 

address the children’s prior motion or set out any provisions for visitation in the 

permanency order. But the same day, the court denied the children’s motion, 

stating the court’s “permanency order has addressed the visitation matter.” The 
4

court also entered a no-contact order directing the parents not to contact the 

children’s guardian.

The father appealed the permanency order, and a panel of this court 

affirmed the decision, concluding the juvenile court “appropriately transferred 

guardianship and custody of the children to the relative.” In re J.R., No. 18-1922, 

2019 WL 719054, at *3 (Iowa Ct. App. Feb. 20, 2019). This court noted that the 

juvenile court could have terminated the father’s parental rights, given the facts of 

the case. See id. But the court agreed with the juvenile court’s decision “not to 

invoke this remedy in the hopes that the parent-child relationship, however fraught, 

might repair itself over time,” because it was “in the children’s best interests.” Id. 

Procedendo issued in March 2019.

Just before the father’s filing of the appeal, the parents moved to establish 

visitation post-permanency. Then, while the appeal was pending, the mother sent 

the juvenile court a letter demanding that the court issue an order putting the 

children’s “safety as a priority,” as well as demanding she be allowed to exercise 

her parental rights. The court set a hearing on the issues raised by the mother. 

The day of the hearing, the juvenile court entered a no-contact order between the 

children and persons the mother alleged to have harmed the children.

In January 2019, the mother moved to dismiss the no-contact order entered 

between the parents and the children’s guardian. She argued there was no basis 

for the order and it violated her constitutional rights. In February 2019, the juvenile 

court addressed the parents’ visitation motion and amended its prior orders to 

include conditional visitation provisions. The court clarified the parents could have 

one weekly visit with the children if they met two conditions: Each parent had to 
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provide “three clean random UA’s over an eighteen-day period or a clean hair 

analysis or patch,” as well as a recent report from his or her therapist on the 

parent’s current mental-health condition.

In April 2019, the juvenile court denied the mother’s request to dismiss the 

no-contact order between the parents and the children’s guardian, finding the nocontact order was necessary and remained in the children’s best interests. The 

court pointed out there was no evidence either parent had tried to satisfy the 

conditions the court had set for visitation to occur. Thus, there was no reason to 

disturb the no-contact order.

Because the parents maintained they wanted to have visits with the 

children, the DHS requested the parents provide a drug screen under the court’s 

order, but neither parent responded. The parents continued to call and text the 

children against their wishes. The mother attended one of the children’s football 

games and made a scene, demanding that a police officer verify the paint on the 

child’s face was paint and not bruises, to the child’s horror. In April 2019, the father 

met with the DHS case manager and seemed to be having a breakthrough. The 

father admitted he had been using methamphetamine during the entirety of the 

case. The father explained he was separating from the mother and “was making 

a change.” He wanted to reconnect with his children.

The children were not interested in reconnecting with the parents. By that 

point, the DHS and the children believed the parents were interfering with “the 

children’s placement” to the point they had not settled “into a life free from their 

parents’ chaotic behaviors.” The children requested their parents’ parental rights 
6

be terminated because both parents “continue to show the same behaviors as they 

have in the past that led to the children’s removal.”

The State then petitioned for termination of the parents’ parental rights. 

Following a hearing, almost two years after the CINA proceedings began, the 

juvenile court terminated the parents’ parental rights. Although the court had “held 

out a small glimmer of hope” the family could reunify, the court concluded

continuing the relationship harmed the children’s welfare. The parents’ individual 

circumstances had worsened. At the time of the termination-of-parental-rights 

hearing, each parent had pending criminal charges and the father was in jail. The 

parents had separated. It appeared both parents continued to use

methamphetamine. The children continued to want nothing to do with their 

parents. The court determined the State proved the statutory grounds for 

termination in paragraphs (f) and (l) of section 232.116(1), termination of parental 

rights was in the children’s best interests, and no factors against termination 

applied to preclude termination of parental rights.

The parents appeal separately.

II. Standard of Review.

We review a juvenile court’s decision to modify a permanency order de 

novo. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995). We have a duty to examine the 

entire record and adjudicate anew rights on the issues properly presented. See In 

re K.C., 660 N.W.2d 29, 32 (Iowa 2003). Although we give weight to the fact 

findings of the trial court, especially when considering the credibility of witnesses, 

we are not bound by them. In re A.S.T., 508 N.W.2d 735, 737 (Iowa Ct. App. 

1993).
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III. Discussion.

Both parents challenge the juvenile court’s decision to discontinue the 

guardianship and terminate parental rights. They also challenge the grounds for 

termination found by the court. Separately, the father argues the court was 

precluded from terminating his parental rights based on res judicata and other 

related legal doctrine. He also argues the State failed to prove there was a 

substantial change in circumstances to modify the permanency order. The mother 

challenges entry of the no-contact order.

A. Applicable Principles.

Under Iowa Code chapter 232, a juvenile court has several placement 

options following a permanency hearing. See Iowa Code § 232.104(2). Generally

the court can (a) return the child home, (b) grant additional time for reunification, 

or (c) direct the State to begin termination-of-parental-rights proceedings. See id. 

The court may also, as it did here, transfer guardianship and custody of the child 

to a suitable person. See id. § 232.104(2)(d)(1).

Once a termination-of-parental-rights proceeding is started from a CINA 

case, the juvenile court can terminate a parent’s parental rights if: (1) a “ground for 

termination under section 232.116(1) has been established” by clear and 

convincing evidence, (2) “the best-interest framework as laid out in section 

232.116(2) supports the termination of parental rights,” and (3) none of the 

“exceptions in section 232.116(3) apply to preclude termination of parental rights.” 

A.S., 906 N.W.2d at 472-73.1 In determining whether termination of parental rights 

 

1 Although the juvenile court must address all three steps in terminating a parent’s 

parental rights, we will not address any step on appeal a parent does not 
8

is in a child’s best interests, we give “primary consideration to the child’s safety, to 

the best placement for furthering the long-term nurturing and growth of the child, 

and to the physical, mental, and emotional condition and needs of the child.” Id. 

§ 232.116(2).

B. Grounds for Termination.

“When the juvenile court terminates parental rights on more than one 

statutory ground, we may affirm the juvenile court’s order on any ground we find 

supported by the record.” In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). We 

choose to address grounds for termination under Iowa Code section 232.116(1)(f). 

Under paragraph (f), the State must prove (1) the child is four or older, (2) has 

been adjudicated a CINA, (3) has been removed from the parent’s physical 

custody the requisite amount of time, and (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.” Iowa Code § 232.116(1)(f). 

Neither parent disputes that the State proved the first three elements of paragraph 

(f). But they both contest the juvenile court’s finding the State proved the last 

element.

Both parents point out the children were in a guardianship established under 

section 232.102, and they insist the existence of the section 232.102 guardianship 

means the last element was satisfied. Alternatively, the father maintains the 

guardian must be substituted in the paragraph as the “parent” because the

guardian is essentially acting as a “parent.” We disagree on both counts. Neither 

 

specifically challenge. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010); see also

Iowa Code § 232.116(1)-(3).
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parent points us to—nor do we find—any authority for such an interpretation of the 

language of the last element of paragraph (f). The definition of the word “parent” 

as used in chapter 232 is set out in section 232.2(39):

“Parent” means a biological or adoptive mother or father of a 

child; or a father whose paternity has been established by operation 

of law due to the individual’s marriage to the mother at the time of 

conception, birth, or at any time during the period between 

conception and birth of the child, by order of a court of competent 

jurisdiction, or by administrative order when authorized by state law. 

“Parent” does not include a mother or father whose parental rights 

have been terminated.

Similarly, “guardian” is defined in section 232.2(21):

“Guardian” means a person who is not the parent of a child, 

but who has been appointed by a court or juvenile court having 

jurisdiction over the child, to have a permanent self-sustaining 

relationship with the child and to make important decisions which 

have a permanent effect on the life and development of that child 

and to promote the general welfare of that child.

Neither definition allows for an interpretation that the words “parent” and “guardian” 

are interchangeable. This makes sense, since section 232.116(1) concerns 

grounds for termination of parental rights.

Section 232.116(1)(f)(4)’s use of “as provided in section 232.102” refers us 

back to section 232.102. Reviewing that section in its entirety, subsection 11 

states in pertinent part:

The court shall hold a periodic dispositional review hearing for each 

child in placement pursuant to this section in order to determine 

whether the child should be returned home, an extension of the 

placement should be made, a permanency hearing should be held, 

or a termination of the parent-child relationship proceeding should be 

instituted. The placement shall be terminated and the child returned 

to the child’s home if the court finds by a preponderance of the 

evidence that the child will not suffer harm in the manner specified in 

section 232.2, subsection 6.
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This part of section 232.102 has been referenced in relation to section 232.116(1)’s 

use of the phrase “as provided in section 232.102.” See In re A.M.S., 419 N.W.2d 

723, 725 (Iowa 1988) (“The proof must only show that any of the alleged 

definitional grounds of a child in need of assistance in section 232.2(6) exist at the 

time of the termination hearing.”); In re M.M., 483 N.W.2d 812, 814 (Iowa 1992) 

(“For example, a child cannot be returned to the parent under Iowa Code section 

232.102 if by doing so the child would be exposed to any harm amounting to a new 

child in need of assistance adjudication.”); see also In re A.A.G., 708 N.W.2d 85, 

91 (Iowa Ct. App. 2005).

Having reviewed chapter 232 and relevant cases, we find unreasonable the 

interpretation that the language of section 232.116(1)(f)(4) is somehow 

inapplicable or changed if the child has been placed in a guardianship under

section 232.104 as part of a permanency determination.

We note the mother also contends there was evidence the children could 

be returned to her care at the time of the termination-of-parental-rights hearing, 

asserting “she has the ability now to stay sober, is separated from [the father], and 

she has a bonded, loving relationship with her children.” But there is no evidence 

in the record the mother had made any real attempts to stay sober, let alone 

address her substance-abuse issues in the two years the case was pending. 

Additionally, the testimony at the hearing was unclear about the status of the 

mother’s relationship with the father except that he was incarcerated at the time of 

the hearing. There was no testimony or evidence the mother intended to divorce 

the father. The father himself gave a statement at the hearing and continued to 

call the mother his wife. Finally, we believe the mother does love her children. But
11

it is their wish that her parental rights be terminated because the mother’s actions 

and inability or unwillingness to address her substance-abuse and mental-health 

issues. The last incident at the football game is telling. The mother knew how 

worried the child was that she would make a scene—not something that is 

uncommon for a teenager. Even so, rather than wait to get more information—

even though she admitted at the termination-of-parental-rights hearing that the 

matter did not require immediate attention—the mother called the police to 

investigate. Then, even after she was told the child’s face was not bruised—he 

was wearing a face paint common in sports—the mother did not believe the child 

was not bruised. The mother’s testimony did not evidence she understood why 

her actions were not ideal or even against the child’s wishes.

Simply put, there was no evidence at the hearing that the children could be 

safely returned to either of the parent’s care at that time. See In re C.F.-H., 889 

N.W.2d 201, 206 (Iowa 2016) (explaining “[t]he words ‘resume’ and ‘returned’ imply 

restoration of a previous custody situation” as used in the fourth element of 

paragraph (f)); In re A.M., 843 N.W.2d 100, 111 (Iowa 2014) (determining that “[a]t 

the present time” refers to the time of the termination hearing). Thus, the State 

proved by clear and convincing evidence the grounds for termination set forth in 

section 232.116(1)(f).

C. Res Judicata.

The father also argues we need not reach the sufficiency of the grounds for 

termination found by the juvenile court because “the facts pleaded by the State in 

its [termination] petition and argued before the juvenile court were the same set of 

facts that were presented and argued before the juvenile court in the permanency 
12

hearing that began on June 18, 2018 and concluded on July 6, 2018.” Asserting 

the juvenile court “relied on evidence that had previously been litigated,” the father 

contends “it was improper to render a new decision based on that exact same 

evidence.” 

The doctrine of res judicata prevents relitigation of a claim or issue of fact 

or law previously litigated in a prior action. See George v. D.W. Zinser Co., 762 

N.W.2d 865, 868 (Iowa 2009); see also Spiker v. Spiker, 708 N.W.2d 347, 353 

(Iowa 2006) (“The doctrine of res judicata embraces the concepts of claim 

preclusion and issue preclusion.”).

In order to determine whether an order granting continuing 

relief has preclusive effect in a later action (i.e., is a “final judgment” 

for res judicata purposes), we ask “whether the issues in the two 

actions are materially different because of events which occurred in 

the interim, in which case preclusion is to be denied.” In other words, 

the first judgment does not have a preclusive effect in the second 

action if circumstances have changed sufficiently to warrant 

modifying the decree.

Spiker, 708 N.W.2d at 353 (internal citations omitted). Moreover, the res judicata 

standard is relaxed in matters on the custody of children “because our goal in such 

cases is always to serve the best interests of the child.” Id. at 356; see also Iowa 

Code § 232.1 (“This chapter shall be liberally construed to the end that each child 

under the jurisdiction of the court shall receive . . . the care, guidance and control 

that will best serve the child’s welfare and the best interest of the state.”).

Here, though most of the matters explicitly set out in the State’s terminationof-parental-rights petition had been discussed before entry of September 2018 

permanency order, not all of the material was old. The mother’s actions at the 

child’s game violated the child’s wishes and the child’s best interests. The child 
13

knew his mother’s behavior was escalating. By the hearing, the parents had 

pending criminal matters. Given the changes in the parents’ behavior since entry 

of the permanency order, the doctrine of res judicata does not apply to prevent the 

termination of the parents’ parental rights.

D. Material Change in Circumstances.

The father similarly argues the State did not offer evidence of a material 

change in circumstances to justify a change in the permanency plan. 

Our case law provides that “modification of custody or placement 

requires a material and substantial change in circumstances.” In re 

R.F., 471 N.W.2d 821, 824 (Iowa 1991). But our court has recently 

considered whether the requirement persists after the 2004 

amendment to section 232.103. See In re M.M., No. 16-0548, 2016 

WL 4036246, at *4-5 (Iowa Ct. App. July 27, 2016) (Potterfield, J., 

dissenting); see also In re A.S., 17-0663, 2017 WL 2665119, at *1 

n.1 (Iowa Ct. App. June 21, 2017); In re A.J., No. 16-1954, 2017 WL 

1278366, at *3-4 (Iowa Ct. App. Apr. 5, 2017).

In re A.W., No. 19-0352, 2019 WL 2880045, at *3 (Iowa Ct. App. July 3, 2019).

That said, “[o]ur primary concern in a proceeding of this nature is the best interests 

of the children.” D.S., 563 N.W.2d at 14. Upon our de novo review of the record, 

we conclude that the State met its burden to show a substantial change of 

circumstances.

Though the children argued in September 2018 that their parents’ behaviors 

were erratic and escalating beyond their comfort, the court still determined a 

permanent guardianship with their elder brother was the least restrictive disposition 

that was in the children’s best interests. But the parents’ actions further escalated 

after entry of the permanency order. Both parents were facing criminal charges, 

the parents continued to contact the children against their wishes, the mother 

made a scene at the child’s football game, and, importantly, the children were more 
14

adamant than ever that they wanted their parents’ parental rights terminated. The 

parents’ actions were weighing heavily on their children. It is clear they would have 

preferred not to seek the drastic remedy of termination of their parents’ parental 

rights, but they wanted their parents to pursue their treatment options; the parents 

did not do that. See In re S.J., 451 N.W.2d 827, 832 (Iowa 1990) (“Termination is 

an outcome of last resort.”). Upon our de novo review of the record, we find clear 

and convincing evidence showing there was a material and substantial change in 

circumstances to support modification of the permanency order. It is clear, given 

the parents’ actions between the entry of the permanency order and the 

termination-of-parental-rights hearing, it was in the children’s best interests for the 

parents’ rights to be terminated. These children need permanency, and the record 

unfortunately shows why that could not be achieved through a permanent 

guardianship.

E. No-Contact Order.

Finally, the mother argues the no-contact order entered preventing the 

parents from contacting the guardian was inappropriate and entered without 

authority. But since the parents’ parental rights have been properly terminated, 

the mother’s issue is moot. See In re B.B., 826 N.W.2d 425, 428 (Iowa 2013) 

(“Ordinarily, an appeal is moot if the ‘issue becomes nonexistent or academic and, 

consequently, no longer involves a justiciable controversy.’” (citation omitted)). “It 

is our duty on our own motion to refrain from determining moot questions.” Homan 

v. Branstad, 864 N.W.2d 321, 327 (Iowa 2015) (citation omitted). We therefore 

decline to address the issue any further.
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IV. Conclusion.

Here, the State proved a ground for termination of the parents’ parental 

rights. The record shows termination of parental rights was in the children’s best 

interest. There was a material change in circumstances to support modification of 

the permanency order from placing the children in a guardianship to termination of 

parental rights with the possibility of adoption by their guardian. Res judicata and 

related doctrine does not apply, and the mother’s issue on the entry of a no-contact 

order is moot. For all of these reasons, we affirm the juvenile court’s order 

terminating each parent’s parental rights.

AFFIRMED ON BOTH APPEALS.