IN THE COURT OF APPEALS OF IOWA

No. 20-0654

Filed July 22, 2020

IN THE INTEREST OF A.H., E.S., D.A., B.A., and M.A.,

Minor Children,

A.A., Father of D.A., B.A., and M.A.,

Appellant,

H.A., Mother of A.H., E.S., B.A., and M.A.,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Winnebago County, Karen Kaufman 

Salic, District Associate Judge.

A father appeals the termination of his parental rights to three children, and 

a mother separately appeals the termination of her parental rights to four children, 

all of the same sibling group. AFFIRMED ON BOTH APPEALS. 

Philip Leo Garland, Garner, for appellant father.

Theodore J. Hovda, Garner, for appellant mother.

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

Attorney General, for appellee State.

Jane M. Wright, Forest City, attorney and guardian ad litem for minor 

children.

Considered by Vaitheswaran, P.J., Greer, J., and Blane, S.J.*

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

(2020).
2

BLANE, Senior Judge.

There are five children in the sibling group in this appeal.

1

 H.A. (mother)

and A.A. (father) together are the parents of B.A. and M.A. H.A. is also the mother 

of A.H. and E.S.2 And A.A. is also the father of D.A.3 After two child-in-need-ofassistance (CINA) proceedings spanning six years, the juvenile court terminated 

the parents’ rights, pursuant to Iowa Code section 232.116(1)(f) and (l) (2020), for 

all five children. The parents appeal separately. 

I. FACTS AND BACKGROUND PROCEEDINGS

The Iowa Department of Human Services (DHS) originally became involved 

with this family in 2014, when it removed the children from the parents’ home due 

to the parents’ substance abuse, relationship and mental-health issues, and the 

unsafe condition of their house. That case was resolved and closed in 2016. 

Then, in December 2018, police executed a search warrant on the family 

home and discovered methamphetamine and marijuana. They also found the 

house in an unsanitary condition again. DHS initiated a second round of CINA 

cases. The children were found to be in need of assistance in January 2019. 

Although the children were not immediately removed, issues soon arose—DHS 

found out the parents were frequently leaving the children with relatives for 

extended periods of time, and the children were missing too many days of school. 

The juvenile court ordered the parents to begin substance-abuse and mental-

 

1 The family consists of the parents, A.H. (fourteen), E.S. (twelve), D.A. (twelve), 

B.A. (nine), and M.A. (seven). The mother also has an adult daughter from another 

relationship. 

2 Their father is not a party in this appeal. 

3 His mother is not a party in this appeal. 
3

health services, but they made little progress toward the case goals during this 

time. 

Then, in February 2019, the court removed the children for the final time 

when the parents left them with relatives and disappeared for a week. In DHS 

custody, the children moved between three different relative and foster home 

placements. In spring 2019, three of the children were placed with one set of foster 

parents; the two other children were placed with a different foster family. The 

children remained in those placements through the rest of the CINA and 

termination-of-parental-rights (TPR) proceedings. 

In the year following the children’s removal, the parents made little progress 

in the case goals, continuing long-standing problems with substance abuse, 

housing instability, and unemployment. 

As a starting point, the parents have never completed substance-abuse 

treatment; they have each participated in multiple evaluations but have not 

followed through with treatment recommendations. The father had evaluations in 

February and June 2019 and again in January 2020. After the June evaluation, 

he started treatment services but was discharged within thirty days for 

nonattendance. He tested positive for methamphetamine in February 2020, after 

the State filed TPR petitions. 

Similarly, the mother discharged unsuccessfully from two different 

treatment programs due to nonattendance. She took twenty drug tests over the 

year of the CINA case—half were positive for illegal substances. Most recently, 

she tested positive for methamphetamine in January and February 2020. At the 

termination hearing, the mother testified that she had been sober since December 
4

2019. When confronted with the results of the February test, she stated, “I never 

got those results,” and “I have not used, I have not been around anybody that’s 

using, and so I don’t have an explanation.” 

Notably, the parents began addressing their substance-abuse issues with 

more urgency at the beginning of 2020, when they both began participating in 

treatment services with the same counselor. But they attended group sessions 

only sporadically. At the termination hearing, they complained they were unable 

to follow through with treatment because their counselor went on medical leave 

and because of closures caused by the novel coronavirus or COVID-19 pandemic 

response. 

But the juvenile court did not accept their explanation; it reasoned they could 

have identified another counselor at the same facility and services were being 

provided in other ways during the COVID-19 pandemic, which the parents chose 

not to pursue. The mother did testify she was able to have a telephone therapy 

session with a different counselor on the day before the termination hearing. 

Inadequate housing has also been a significant factor in the family’s life. 

When the children were removed in February 2019, the family home was in a state 

of extreme disrepair. The house had no utilities and was running on only well water 

and a generator. The parents stayed in that home until February 2020, when they 

moved into a house vacated by the mother’s parents. The grandparents moved 

into a new house but continued paying rent for the parents to stay in their vacated

house. The grandparents also paid all utilities on the house because the mother 

and father are unable to get utilities in their own name due to past unpaid bills. 

The parents are supposed to pay rent and utilities to the grandparents but have
5

not yet done so. In a verbal confrontation shortly before the termination hearing, 

the grandparents suggested they were considering evicting the father because he 

was not working to contribute to the household or paying rent.

The family’s housing instability is also connected to the parents’ 

unemployment. Throughout most of the CINA case, they were unemployed. The 

father testified to working off and on, but he was fired from his job in early 2019 

and relatedly charged with third-degree theft. Shortly before the termination 

hearing, both parents got new jobs—the mother began working at a fast food 

restaurant. The father testified he began a construction job. But at the time of the 

termination hearing, both workplaces had suspended operations due to the 

COVID-19 pandemic. It was unclear when their employment would resume. 

The mother testified the rent and utilities on their home are $800 each 

month and, when working, she is paid between $800 and $1000 per month. It is 

unclear how much the father is paid. It is also unclear how the parents will stretch 

their limited resources to cover rent, utilities, and all other expenses to care for five 

children without continued financial support from the grandparents. 

The court held the hearing on the termination of parental rights on April 3. 

Previously, it ordered that hearing be conducted entirely by telephone, pursuant to

supervisory orders from the supreme court on the provision of court services during 

the COVID-19 pandemic. The parents moved to continue until all parties and 

counsel could be personally present for a hearing. The court denied the motion. 

Following a fully telephonic hearing, the court terminated the parents’ rights, 
6

pursuant to Iowa Code section 232.116(1), paragraphs (f)4 and (l).5 The court cited 

the parents’ ongoing substance-abuse issues—as demonstrated by recent drug 

tests positive for methamphetamine—as well as their employment and housing 

instability. The parents appeal separately. 

II. SCOPE OF REVIEW

We review child-welfare proceedings de novo. In re M.W., 876 N.W.2d 212, 

219 (Iowa 2016). The juvenile court’s fact findings do not bind us, but we give 

them weight, particularly with regard to credibility. Id. Our primary concern is the 

best interests of the children. In re L.T., 924 N.W.2d 521, 529 (Iowa 2019). 

Review of the parents’ constitutional claim is also de novo. In re C.M., 652 

N.W.2d 204, 209 (Iowa Ct. App. 2002). And we review the juvenile court’s denial

of a motion to continue for an abuse of discretion. In re M.D., 921 N.W.2d 229, 

 

4 Termination under paragraph (f) requires the following findings:

(1) The child is four years of age or older.

(2) The child has been adjudicated a child in need of 

assistance pursuant to section 232.96.

(3) The child has been removed from the physical custody of 

the child’s parents for at least twelve of the last eighteen months, or 

for the last twelve consecutive months and any trial period at home 

has been less than thirty days.

(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.

5 Termination under paragraph (l) requires the following findings:

(1) The child has been adjudicated a child in need of

assistance pursuant to section 232.96 and custody has been

transferred from the child’s parents for placement pursuant to section

232.102.

(2) The parent has a severe substance-related disorder and

presents a danger to self or others as evidenced by prior acts.

(3) There is clear and convincing evidence that the parent’s

prognosis indicates that the child will not be able to be returned to

the custody of the parent within a reasonable period of time

considering the child’s age and need for a permanent home.
7

232 (Iowa 2018). “A court abuses its discretion when ‘the decision is grounded on 

reasons that are clearly untenable or unreasonable,’ such as ‘when it is based on 

an erroneous application of the law.’” Id. (quoting In re A.M., 856 N.W.2d 365, 370 

(Iowa 2014)). 

III. ANALYSIS

Neither parent challenges the statutory grounds for termination of their 

rights. Instead, they jointly raise the following issues: first, they contend

termination of their parental rights was not in the children’s best interests; and

second, they contend the juvenile court erred in denying their joint motion to 

continue because the resulting termination hearing via teleconferencing violated 

their due process rights. The mother separately contends termination is 

detrimental to the children due to her close parent-child relationship. We start with 

the constitutional claim. 

A. Due Process Challenge

The parents challenge the termination hearing on due process grounds. 

Due process protections “include procedural safeguards for people who face state 

action that threatens a protected liberty or property interest.” Id.. “Once the law 

finds a protected interest to exist, the question turns to what process or procedure 

the law must provide the person.” Id. The questions here are whether the 

telephonic hearing satisfied the parents’ due process rights under these 

circumstances and whether the district court abused its discretion in denying the 

parents’ motion to continue. 

The State filed a petition for termination of parental rights on January 30, 

2020. The juvenile court originally set the hearing for February 21. Shortly 
8

beforehand, the State moved to continue because it had not been able to serve 

A.H. and E.S.’s father. The State applied to give notice by publication. The court 

granted the continuance and publication request, resetting the termination hearing 

for March 6. On March 6, the court continued the hearing again because it 

determined the time initially allotted for the hearing was insufficient. The court

reset the hearing for April 3. 

On March 14, the chief justice of the Iowa Supreme Court issued a

supplemental supervisory order “in response to the spread of the novel 

coronavirus/COVID-19 . . . to keep the courts open to the fullest possible extent 

while protecting public safety.”

6

 Iowa Supreme Ct. Supervisory Order, In the 

Matter of Ongoing Preparation for Coronavirus/COVID-19 Impact on Court 

Services (Mar. 14, 2020). The order continued most criminal and civil jury trials 

and proceedings but noted “motions to continue shall be freely granted where they 

would not result in unfair prejudice to a party.” Id. at ¶13. With respect to juvenile 

cases, the order specifically instructed, “Non-delinquency juvenile matters may go 

forward as scheduled. With the approval of the court, hearings may be conducted 

with the parties and/or participants appearing remotely using video or phone 

conferencing.”

7

 Id. at ¶14.

 

6

 The novel coronavirus/COVID-19 is an ongoing international pandemic. To stem 

the spread, governments, including the state of Iowa, implemented emergency 

safeguards recommended by such agencies as the Center for Disease Control, 

which included social distancing and wearing of face masks. In Iowa, many 

businesses were ordered closed, people were encouraged to maintain six-foot 

distances between one another, and gatherings of ten or more people were 

discouraged. 

7 The supreme court clarified delinquency proceedings would be subject to the 

criminal proceeding directives “that by the[ir] nature would apply to juvenile 

delinquency cases.” Iowa Supreme Ct. Supervisory Order, In the Matter of 
9

In an updated supervisory order dated March 17, the supreme court 

directed, “Non-delinquency juvenile matters set to commence before May 4 shall 

be either continued to a date no earlier than May 4 or conducted with the parties 

and/or participants appearing remotely using video or phone conferencing, at the 

discretion of the court.” Iowa Supreme Ct. Supervisory Order, In the Matter of 

Ongoing Provisions for Coronavirus/COVID-19 Impact on Court Services ¶17

(Mar. 17, 2020). On March 23, and pursuant to the supervisory orders, the juvenile 

court ordered that the upcoming termination hearing would be conducted by 

teleconference at the same date and time previously ordered.8 

On April 2, the day before the termination hearing, the supreme court issued 

another supervisory order superseding all prior supervisory orders. For juvenile 

cases, it instructed, “Non-delinquency juvenile matters set to commence before 

June 15 shall be either continued to a date no earlier than June 15 or conducted 

with the parties and/or participants appearing remotely using video or phone 

conferencing at the discretion of the court.” Iowa Supreme Ct. Supervisory Order, 

In the Matter of Ongoing Provisions for Coronavirus/COVID-19 Impact on Court 

Services ¶29 (Apr. 2, 2020).

The same day, counsel for both parents filed a joint motion to continue 

stating, “Both counsel are concerned about due process and the right of 

confrontation.” Both attorneys’ offices were closed to clients, “[c]omplicating their 

 

Ongoing Preparation for Coronavirus/COVID-19 Impact on Court Services ¶15

(Mar. 14, 2020).

8 The court gave detailed instructions on how each participant was to dial into the 

teleconference and how to proceed if a party did not have access to a telephone. 

It also encouraged counsel and clients to communicate before the hearing. 
10

ability to ask questions when witnesses are testifying and adequately representing 

their clients.” They asked the juvenile court to continue the hearing until 

“restrictions on live hearings are lifted.” The court denied the motion based on the 

following considerations: “It does not appear that the Supreme Court restrictions 

will be lessened any time soon and continued delay of this matter is not in the best 

interest[s] of the children.”

At the commencement of the teleconference termination hearing, counsel

renewed their motion saying, 

[W]e object to the fashion for this type of case. . . . [The supreme 

court has] also said that there will be no jury trials until this matter 

[coronavirus] gets done, and we feel that this is equally as important 

to a jury trial and that the confrontation is important in this type of 

case.

The court admitted these are “not ideal circumstances” but the supreme court had 

extended the suspension of criminal and civil proceedings in the previous day’s

order, which also “confirm[ed] that the court does have discretion to determine 

whether or not a hearing is appropriate to be held by teleconference.” 

The court further expressed its impression that the supreme court 

supervisory orders “expect us to conduct as much of the court system as possible 

in taking into account the specific issues that relate to termination and CINA 

proceedings, that there is an urgency to those, and, . . . a component . . . about 

what’s in the best interests of the children.”The court also noted its intention to 

break after each witness’s examination and allow attorneys and clients to 

disconnect and discuss privately before resuming the hearing. The court 

concluded, “[W]hile . . . it’s certainly not ideal, the best interests of the children in 
11

determining what the long-term outcome is going to be for them requires that we 

proceed today through the teleconference.” 

On appeal, the parents contend the court’s denial of their motions violated 

their due process rights, including the right to be present and the right to confront 

witnesses.9 

“When assessing a procedural due process claim, we must first determine 

if there is a protected liberty or property interest at stake.” In re T.S., 868 N.W.2d 

425, 432 (Iowa Ct. App. 2015). “[T]ermination-of-parental-rights proceeding[s] 

clearly involve[] a parent’s fundamental interest in the care, custody, and control 

of his or her child[ren].” Id. (citing C.M., 652 N.W.2d at 211). We determine what 

procedure is constitutionally required by balancing three competing interests: “(1) 

the private interest affected by the proceeding; (2) the risk of error created by the 

procedures used, and the ability to avoid such error through additional or different 

procedural safeguards; and (3) the countervailing governmental interests 

supporting use of the challenged procedures.”

10

 Id. 

 

9 The parents do not cite the Sixth Amendment Confrontation Clause as the basis 

of this “right to confront,” but we note nonetheless that there is no Sixth 

Amendment right to confront witnesses outside the context of a criminal 

proceeding. See In re D.J.R., 454 N.W.2d 838, 846 (Iowa 1990). Rather, we read 

the parents’ argument as a fundamental fairness claim that they should be 

permitted to hear the State’s evidence and cross-examine witnesses. 

10 In their motions before the district court, the mother and father mention due 

process but cite no case authority, nor do their arguments specifically address the 

standards of proof for a due process violation. Normally, issues must be both 

raised and decided by the district court before we will address them on appeal. 

See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). But the juvenile court, 

in its on-the-record ruling, addressed the three “competing interests” of the due 

process test. See T.S., 868 N.W.2d at 432. Therefore, we conclude error was 

minimally preserved on the due process argument. 
12

1. Risk of error

We begin with the risk of error attaching to the telephonic hearing. The 

parents assert they were denied the opportunity to be physically present during the 

taking of testimony and they “question[] the complete ability to be represented by 

counsel via phone.” 

Indeed, Iowa’s TPR statute requires that the necessary parties in a TPR 

proceeding “receive notice and an opportunity to be heard.” Iowa Code 

§ 232.112(1); see also Santosky v. Kramer, 455 U.S. 745, 753–54 (1982) (“When 

the State moves to destroy weakened familial bonds, it must provide the parents 

with fundamentally fair procedures.” (footnote omitted)). Our supreme court has 

noted “that meaningful participation in a parental termination case requires actual 

knowledge of the testimony and documentary evidence offered in support of the 

petition.” M.D., 921 N.W.2d at 235. “Parents often have exclusive and particular 

knowledge of the evidence offered by the state to support the termination petition 

and need to hear it to understand the evidence needed to make an effective 

response.” Id. 

The mother also cites a “fundamental right” “to be present at a hearing.” 

She relies on Harter v. State, 149 N.W.2d 827, 833 (Iowa 1967). In that TPR case, 

the supreme court certainly indicated the requirement of due process “ordinarily 

includes,” among other rights, the right “to appear or be represented by counsel”

at the TPR hearing. Harter, 149 N.W.2d at 833 (emphasis added). But the mother 

in that case actually was “present at the hearing,” where her “counsel crossexamined the witnesses presented and introduced evidence on her behalf” and 

made arguments. Id. Our supreme court found her complaint “narrow[ed] down 
13

to the claim she was denied a fair hearing because the decision was based on 

exhibits and testimony which would have been excluded under ordinary rules of 

evidence.” Id. at 834. Thus, Harter is inapposite. 

Contrary to the mother’s view, our supreme court has not found a due 

process right to be physically present for a termination hearing. See M.D., 921 

N.W.2d at 234 (noting the appellant-mother did not ask the court to find such a due 

process right but listing cases from several jurisdictions rejecting that claim). In 

M.D., the supreme court found a mother, who was incarcerated in a different state, 

was denied due process when the juvenile court only allowed her to participate in 

the termination hearing by telephone to give her testimony. Id. at 231. Although 

she had counsel, the court found she should have been afforded an opportunity to 

participate from the prison in the entire termination hearing “by telephone or other 

similar means of communication that enables the parent to hear the testimony and 

arguments at the hearing.” Id. at 236. “The risk of error is too great if a parent 

does not have the opportunity to hear the evidence and to formulate a response to 

it.” Id.

We proceed next to the additional safeguards suggested by prior cases and 

under the facts of this case. 

2. Ability to avoid error through additional safeguards

In M.D., the court found additional safeguards could have been ordered to 

abate due process violations caused by an incarcerated parent’s inability to be 

physically present at a termination hearing. See id. at 236–37. The court 

emphasized, “[T]he process due in each case is flexible depending on the 

particular circumstances.” Id. at 235. 
14

The court first embraced the requirement that the juvenile court must allow 

parents to participate in the entire termination hearing, not just in giving their own 

testimony. Id. at 236. It imposed an obligation on the juvenile court to secure the 

participation of the parent by communication with the jail or prison facility holding 

the parent. Id. Second, the juvenile court must consider “alternative means of 

participation.” Id. “In the event prison officials from other states, or other 

circumstances, do not permit the standard to be met, the juvenile court” should 

provide the absent parent an expedited transcript of the proceeding. Id. After 

reviewing the transcript, the parent should be permitted to testify by phone or 

teleconference, recall witnesses for additional cross-examination, and present any 

other testimony or documentary evidence. Id.

Thus, our case law directs that presence by telephone does not violate the 

right to due process when the parent is unable to be physically present due to 

incarceration. See, e.g., In re A.R., No. 19-1151, 2020 WL 825957, at *4 (Iowa Ct. 

App. Feb. 19, 2020) (finding incarcerated mother was not denied due process 

when she was present by telephone during the entire hearing, testified, and had

counsel physically present at the hearing). In such cases, even providing a 

transcript of the proceedings the parent missed has been found sufficient to meet 

the requirement of due process, so long as the represented parent is informed of 

the evidence presented and given the opportunity to respond.

In the present case, alternative means were not necessary; the parents 

were able to participate in the entire termination hearing by telephone, the same 

as every other party and witness. The court also offered the parents additional 

safeguards in the form of frequent breaks to consult privately by telephone with 
15

counsel. After each witness testified, the court questioned the parties as to 

whether they wanted to disconnect from the teleconference and confer privately 

with their separate counsel before proceeding. Both the mother and father availed 

themselves of this opportunity, and on several occasions counsel and clients 

agreed there was no need to confer, and the hearing proceeded without a break. 

In addition, neither parent has identified any error or risk of error that 

occurred during the hearing as a result of the telephonic procedures other than 

generally “question[ing]” the ability of counsel to represent them. Both parents

testified at the hearing, along with two witnesses for the State. The parents have 

not identified any cross-examination they were unable to perform; any testimony 

they were unable to give; any witness they were unable to call; any documents or 

physical evidence they were unable to view or offer; any discussion they were 

unable to hold with counsel; any difficulty with the technologies used; any inability 

to access a phone line or call into the teleconference; or any other deficiency

affecting their rights. Nor do they identify any additional safeguards the court 

should have employed to avoid the risk of error other than granting the 

continuance. Finally, the parents do not raise or challenge the best-interests 

rationale for the court to order the telephonic proceeding rather than an in-person 

termination hearing.

We next examine the countervailing governmental interest supporting the 

teleconferencing procedures. 
16

3. The countervailing governmental interests supporting use of the 

challenged procedures

The parents contend delaying the termination hearing would not have 

resulted in any negative consequences to the children. We too recognize they 

were in safe placements. With the benefit of hindsight, we can perhaps say that 

in-person hearings would resume within a few months11 and perhaps that delay 

would not have caused significant detriment to the children. 

But that was not the position of the juvenile court on April 3. Instead, the 

court had before it a motion to continue to an undeterminable date a termination 

hearing that had already been continued twice for five children who were the 

subject of two sets of CINA proceedings over six years and who had been out of 

parental care beyond the statutory limitations period for termination of parental 

rights. See Iowa Code § 232.116(1)(f)(4) (“The child has been removed from the 

physical custody of the child’s parents for at least twelve of the last eighteen 

months, or for the last twelve consecutive months.”).

 

11 The April 6 supervisory order on juvenile justice ordered hearings to be 

continued at the court’s discretion until after June 15. Iowa Supreme Ct. 

Supervisory Order, In the Matter of Ongoing Provisions for Coronavirus/COVID-19 

Impact on Child Welfare and Juvenile Justice Youth and Families ¶7 (Apr. 6, 2020).

The May 22 supervisory order continues the April 6 order but extends the 

postponement of in-person child-welfare hearings to July 13. Iowa Supreme Ct. 

Supervisory Order, In the Matter of Ongoing Provisions for Coronavirus/COVID-19 

Impact on Court Services ¶41 (May 22, 2020). Thus, the earliest the court would 

have been able to set the hearing was fourteen weeks after the April 3 hearing 

date. The supreme court has since issued further guidance on resuming in-person 

hearings. See Iowa Supreme Ct. Supervisory Order, In the Matter of Case 

Prioritization of Cases and Duties (July 9, 2020); Iowa Supreme Ct. Supervisory 

Order, In the Matter of Resuming In Person Court Services During COVID-19 (July 

9, 2020); and Iowa Supreme Ct. Supervisory Order, In the Matter of Resuming 

Family Law Trials Postponed by COVID-19 (July 9, 2020). But the earliest possible 

date a hearing could have been scheduled remains July 13. 
17

Indeed, as our courts have emphasized for twenty years, “Once the 

limitation period lapses, termination proceedings must be viewed with a sense of 

urgency.” In re C.B., 611 N.W.2d 489, 495 (Iowa 2000). “Continuances may be 

detrimental to the best interests of children.” M.D., 921 N.W.2d at 233. “The focus 

of child welfare . . . is now on permanency, and continuances of court hearings to 

accommodate parents might offend this goal.” Id. 

Our rationale for adhering to the statutory timelines is well-known. In 

seeking the best interests of abused and neglected children, the “defining 

elements” are “safety and [their] need for a permanent home.” In re J.E., 723 

N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially). “It is unnecessary 

to take from the children’s future any more than is demanded by statute.” In re 

L.L., 459 N.W.2d 489, 495 (Iowa 1990) (quoting In re A.C., 415 N.W.2d 609, 614 

(Iowa 1987)). “Stated otherwise, plans which extend the twelve-month period 

during which parents attempt to become adequate in parenting skills should be 

viewed with a sense of urgency.” Id. (quoting A.C., 415 N.W.2d at 614). 

At the same time, we recognize “it is also in the best interests of children 

that their parents have a full and fair opportunity to resist the termination of parental 

rights.” M.D., 921 N.W.2d at 236.

4. Striking a balance 

Thus, the countervailing governmental interest of securing a permanent 

home for these children in adherence to the statutory timeframes is at odds with 

the parents’ insistence that their interest in their relationships with their children 

could only be safeguarded by a fully in-person hearing. In these circumstances, 

as with an incarcerated parent, the balance tips in favor of the telephonic hearing. 
18

The right to parent one’s children is certainly among the most fundamental. And 

the risk of being unable to confer with TPR counsel moment to moment during the 

TPR hearing is significant. But the additional procedures the district court provided 

sufficiently mitigated those risks, considering that the offered breaks were private, 

frequent, and often declined. Tipping the scale further is the governmental interest 

in securing permanent homes for children in a timely fashion consistent with their 

best interests. We are persuaded that the telephonic hearing satisfied the 

requirements of due process in these circumstances. 

We are further persuaded that the juvenile court correctly interpreted the 

supervisory orders as recognizing and embracing the urgency inherent in childwelfare proceedings. The supreme court put orders regarding juvenile matters, 

and specifically child-welfare matters, in a completely different division in its 

supervisory orders from criminal and general civil matters. While it broadly 

suspended all or most criminal and civil matters to later dates and encouraged the 

“liberal[]” granting of continuances for general civil matters, it left scheduling of 

child-welfare matters “at the discretion of the court.” We view this as a recognition 

of the expediencies involved in child-welfare proceedings and the need for timely 

action in securing children permanent homes when the period for attempting family 

reunification has ended. Within the category of “juvenile matters,” the supreme 

court also directed most delinquency matters to be subject to the applicable 

directives under the criminal proceedings division, furthering our belief that childwelfare matters occupy a unique position within our branch’s mandate to provide 

court services, however ordinary or extraordinary the times. See, e.g., Iowa R. 

App. P. 6.902(1)(d) (providing TPR cases are among those cases that “shall be 
19

expedited on appeal”). The juvenile court correctly determined that interest was 

compelling and overcame the disadvantages of the telephonic hearing. 

We recognize that M.D. dealt specifically with an incarcerated parent and 

the additional procedures directed under that decision may apply only in cases 

sharing those facts. See 921 N.W.2d at 236. We also understand that the process 

due to a parent depends upon the circumstances, and the parents here are in a 

somewhat different position: arguably, incarcerated parents bear some 

responsibility for their incarceration and inability to be present for a hearing. As 

we have said, the onset of the COVID-19 pandemic was beyond the parents’ or 

the court’s ability to control. Yet M.D. both approves telephonic hearings and 

directs courts to implement alternative procedures even in circumstances where 

the parent’s absence is beyond their control, such as when “prison officials from 

other states, or other circumstances, do not permit” their attendance. Id.

(emphasis added); see also In re W.E., No. 19-2109, 2020 WL 1550699, at *3 

(Iowa Ct. App. Apr. 1, 2020) (reversing termination of a father’s parental rights 

where he was taken into custody before the first day of the termination hearing on 

a mental-health commitment order and was unable to be present for the State’s 

evidence and finding, under M.D., either the court should have continued the 

hearing or provided a transcript to the father). Again, that level of process was not 

required here, but M.D. suggests it would have met the requirements of due 

process anyway. The closest published case law we have analogous to the 

present situation surrounds incarcerated parents, so we extend the rationale in the 

absence of clear directives in another direction. 
20

Generally, the fundamental requirement of due process is an 

opportunity to be heard. This may include a right to notice of the 

hearing, to confront and cross-examine adverse witnesses, to be 

represented by counsel, to an impartial decision maker, and to a 

decision based solely on legal rules and the evidence presented at 

the hearing.

In re A.M.H., 516 N.W.2d 867, 870 (Iowa 1994) (citation omitted). The parents 

have not shown they were denied due process. 

5. April 6 supervisory order

The parents point out that a few days after the hearing, on April 6, the 

supreme court issued a new supervisory order specifically addressing the impact 

of COVID-19 restrictions “on child welfare and juvenile justice youth and families.” 

Iowa Supreme Ct. Supervisory Order, In the Matter of Ongoing Provisions for 

Coronavirus/COVID-19 Impact on Child Welfare and Juvenile Justice Youth and 

Families (Apr. 6, 2020). Most of the new directives concerned families still in the 

reunification stage of child-welfare proceedings and emphasized expeditious 

reunification. With regard to CINA proceedings, the court updated its guidance, 

stating, 

Uncontested hearings should use remote technology. Contested

hearings, such as a contested adjudication or termination hearing, 

may be conducted via remote technology if all parties agree, and 

thereafter file a written waiver of personal appearance or waive such 

appearance on the record. If one party objects to proceeding by 

phone, and the juvenile court believes the matter should nonetheless 

go forward and not be postponed, then the court can order telephonic 

testimony.

Id. at ¶7. We do consider that this change in the directive may be relevant to the 

question whether the court’s decision met the requirement of due process. But the 

supervisory order itself is not applicable since it came several days after the 

hearing. 
21

Yet the updated supervisory order reaffirmed the juvenile courts retain the 

discretion to set a remote hearing—if the court believes the matter should not be 

continued, it can order a telephonic hearing over the objections of the parties. That 

is the situation the parents were in, and we conclude that they were afforded due 

process through full participation in the telephonic hearing. 

6. Abuse of discretion

Having determined the procedure used met the requirements of due 

process, the final question on this issue is whether the juvenile court abused its 

discretion in denying the motion to continue. We find no abuse. The court cited 

the uncertainty of when an in-person hearing could be set and weighed it against 

the best interests of the children in securing a permanent home consistent with 

statutory guidelines. No one could predict at that time how long the pandemic 

would last. The postponement of in-person hearings through supervisory orders 

had been extended twice. And even before that, the termination hearing had been 

continued twice beyond its original date. This was the second set of CINA cases

for the children over a period of six years. They had been out of parental care for 

over a year and were making remarkable progress in their foster homes. The 

telephonic hearing offered sufficient safeguards for the parents’ interests as 

supported by the supervisory orders and recent case law. We cannot say the court 

acted on reasons that are “clearly untenable or unreasonable.” A.M., 856 N.W.2d 

at 370. 

Because we conclude the court afforded the parents adequate due process 

protections, we proceed to the merits of the appeals. 
22

B. Best Interests of the Children

The parents contend the juvenile court erred in finding it was in the 

children’s best interests to terminate their parental rights. They argue they were 

prepared to resume custody of the children in a safe environment because they 

have secured housing and employment and are working on their substance-abuse 

issues. They believe the juvenile court unfairly penalized them for their 

employment and substance-abuse treatment ending due to the COVID-19 

pandemic, a factor outside of their control. 

In making the best-interests determination, we give primary consideration 

to the children’s safety, the best placement for furthering their long-term nurturing 

and growth, as well as their physical, mental, and emotional condition and needs. 

Iowa Code § 232.116(2); see In re P.L., 778 N.W.2d 33, 37 (Iowa 2010). Safety 

and the need for a permanent home mark the “defining elements” in a child’s best 

interests. J.E., 723 N.W.2d at 802 (Cady, J., concurring specially). 

We acknowledge the parents’ recent efforts to obtain employment and 

stable housing and address their substance-abuse issues. We recognize that the 

COVID-19 pandemic has put continuing their employment beyond their control. 

The lack of income has, in turn, affected their housing, as the grandparents have 

discussed evicting them if they are unable to pay the rent. 

But this is the second set of CINA cases involving these children, and they 

have been under juvenile court supervision for over a year—all due to the same 

basic problems of the initial cases: unresolved substance-abuse and mental-health 

issues and inappropriate or inadequate housing exacerbated by the parents’ 

financial situation. And because the parents’ efforts have come at the eleventh 
23

hour, we are not convinced they are permanent changes signaling a safe and 

stable future for these children. See In re Dameron, 306 N.W.2d 743, 745 (Iowa 

1981) (finding insight into the long-range best interests of the child can be gleaned 

from “evidence of the parent’s past performance for that performance may be 

indicative of the quality of the future care that parent is capable of providing.”) 

Neither parent has completed substance-abuse treatment or consistently 

attended treatment, despite three different opportunities. They both tested positive 

for methamphetamine just two months before the termination hearing. The mother 

could not explain her positive result in February, claiming she had been sober 

since December. She also tested positive in January. The parents tested positive 

even while they were in outpatient treatment. We, like the juvenile court, find they 

could have continued treatment through the COVID-related closures—as 

evidenced by the mother’s telephonic appointment the day before the hearing—

but chose not to pursue it. 

Their housing situation also remains unstable; they were not paying rent or 

utilities even when they were working. The grandparents were footing the bill, and 

they began considering eviction. 

In assessing the best interests of the children, the juvenile court found the 

children have each demonstrated a clear improvement since their removal, noting 

“[t]hey are calmer, more well-behaved and are doing markedly better in school” in 

their respective placements. The foster parents also note remarkable 

improvement in their well-being—the children are seeing therapists, participate in 

other services, and have additional academic support as necessary. The foster 

parents support the children’s access to these services and recognize their need 
24

for them. Meanwhile, the parents have made little progress to demonstrate their 

own stability as parents. They have never moved beyond fully-supervised 

visitation. The FSRP12 provider noted the father’s inability to engage with all the 

children during his visitations or control his anger when provoked in front of them. 

Given the shortcomings in the parents’ sobriety and stability and the 

recency of their efforts toward positive changes, we believe the children have the 

greatest chance of a safe, permanent home life that meets their individual needs 

in the short- and long-term through termination of the mother and father’s parental 

rights. 

C. Detriment to the Children Due to Parent-Child Relationship

In her separate petition on appeal, the mother contends termination of her 

rights would be contrary to Iowa Code section 232.116(3)(c), which permits the 

court to bypass termination if there is “clear and convincing evidence that the 

termination would be detrimental to the child[ren] at the time due to the closeness 

of the parent-child relationship[s].” The mother bears the burden to prove the 

permissive—not mandatory—factor applies to prevent termination. In re A.S., 906 

N.W.2d 467, 476–77 (Iowa 2018). She points again to her recent substance-abuse 

treatment and new home. 

The juvenile court found no permissive ground under section 232.116(3) 

applied to this case. It noted, “The children will undoubtedly be sad about 

termination,” but there were other aspects of the parenting “the children will not 

miss.” In addition, “[a]ny sadness the child[ren] may experience because of 

 

12 FSRP is an acronym for family safety, risk, and permanency. 
25

termination does not overcome the likely long-term hardship and neglect” they will 

suffer if parental rights are not terminated. 

The record reflects the mother had generally appropriate interactions with 

the children during visitation—she was affectionate with the children and attentive 

most of the time. But little evidence was presented that she and the children share 

a bond13 or that terminating her rights would be detrimental to them. Their 

placement with the foster families has been tremendously beneficial to their 

medical condition, mental health, and academic performance. Those 

considerations significantly outweigh any possible detriment the children would 

experience from severing the parent-child bond in this case. We agree the mother 

failed to show the permissive ground applies to prevent termination of her rights. 

AFFIRMED ON BOTH APPEALS.

 

13 On a few occasions, M.A. began crying at the end of visitation and said she 

wanted to stay. But for many of the visits, the more exciting draw for the children 

was the parents’ puppy and interaction with their adult sister, who was also living 

in the home. D.A. affirmatively stated on multiple occasions he did not want to 

keep going to visitation, although his feelings stemmed more from his fractious 

relationship with the father.