IN THE COURT OF APPEALS OF IOWA

No. 17-0573

Filed June 7, 2017

IN THE INTEREST OF R.M., 

Minor Child, 

T.B., Mother, 

Appellant, 

I.M., Father, 

Appellant. 

________________________________________________________________

Appeal from the Iowa District Court for Jasper County, Steven J. 

Holwerda, District Associate Judge.

A mother and father separately appeal from the juvenile court’s order 

terminating their parental rights to their child, who is a member of an Indian tribe. 

AFFIRMED ON BOTH APPEALS. 

Deborah L. Johnson of Deborah L. Johnson Law Office, P.C., Altoona, for 

appellant mother. 

Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, and Jane K. 

Odland of Odland Law Firm, P.L.L.C., Newton, for appellant father. 

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

General, for appellee State. 

Meegan M. Keller of Keller Law Office, P.C., Altoona, attorney and 

guardian ad litem for minor child. 

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 
2

MULLINS, Judge. 

A mother and father separately appeal from the juvenile court’s order 

terminating their parental rights to their child, R.M., who is a member of the 

Seminole Nation of Oklahoma.1 They both argue (1) the State failed to prove the 

statutory grounds for termination; (2) termination is not in their child’s best 

interests; (3) the juvenile court should have granted them an additional six 

months to work toward reunification with their child; and (4) exceptions to 

termination exist because the child is placed with a relative and shares a bond 

with her parents. Upon our de novo review, we affirm. 

I. Background Facts and Proceedings

The family first came to the attention of the Iowa Department of Human 

Services (DHS) in September 2015, due to allegations the parents were using 

illegal drugs while caring for their child. Subsequently, concerns were raised 

about domestic violence between the parents. In October, the juvenile court 

entered an order removing the child from the parents’ custody and placing the 

child with her maternal grandmother.2 In December, the court adjudicated R.M. a 

child in need of assistance (CINA). 

In October 2016, the court held a combined permanency and termination 

hearing. At the hearing, the father testified he had a lengthy history of using 

illegal drugs, had never provided a clean drug screen for DHS, had last used 

illegal drugs three months prior, and had not completed any substance-abuse 

 

1

It is undisputed R.M. is an Indian child as defined in the Indian Child Welfare Act 

(ICWA). See Iowa Code § 232B.3 (2016). 

2 The record shows the child has lived with the maternal grandmother since June 2015, 

when she was approximately one month old, due to the parents’ instability and the 

domestic violence between them. 
3

treatment program. He further testified he did not provide financial assistance for 

the child to the maternal grandmother because the grandmother had not 

requested it. Additionally, the father admitted he had criminal charges pending 

against him at that time and he had not held stable employment during the 

pendency of the CINA case. The mother testified she also had a history of using 

illegal drugs and had never completed the recommended substance-abuse 

treatment. She admitted she did not obtain the court-ordered mental-health 

evaluation. The mother also had not had stable housing or employment during 

the underlying CINA action. Finally, both parents admitted R.M. could not be 

returned to their care and custody at the time of the termination hearing. 

In November, the juvenile court terminated the mother’s and the father’s 

parental rights pursuant to Iowa Code section 232.116(1)(e) and (h). Both 

parents filed motions to enlarge or amend the court’s factual findings and 

conclusions of law, which the court denied. The mother and father then 

appealed the court’s termination order. 

In February 2017, the supreme court reversed the juvenile court’s order 

and remanded the case “for presentation of expert testimony that will provide the 

juvenile court with knowledge of the social and cultural aspects of Indian life to 

diminish the risk of any cultural bias in the termination decision.” (Citation 

omitted.) 

In March, the juvenile court held a hearing on the remanded issue. An 

Indian child welfare worker and case worker for the Seminole Nation of 

Oklahoma testified as an expert witness regarding the social and cultural aspects 

of Indian life, and in particular the Seminole Nation of Oklahoma. The 
4

caseworker testified none of the facts or allegations in this case reflected any 

cultural bias toward Indians or this specific tribe. She further testified DHS had 

provided reasonable and active efforts to keep the family intact, the tribe’s rules 

and code of laws would support a termination of parental rights in this case, and 

return of the child to the parents’ custody would risk severe emotional or physical 

harm to the child. Additionally, the caseworker testified the child’s placement 

with her maternal grandmother is culturally appropriate, consistent with the tribe’s 

customs and law, compliant with ICWA, and supported by the tribe. She testified 

the establishment of a guardianship was not preferred due to the child’s young 

age. 

The juvenile court subsequently entered an amended and reissued order 

terminating the parents’ parental rights pursuant to section 232.116(1)(e) and (h). 

The mother and father separately appeal. 

II. Standard of Review

We review termination-of-parental-rights proceedings de novo. In re 

M.W., 876 N.W.2d 212, 219 (Iowa 2016). “We are not bound by the juvenile 

court’s findings of fact, but we do give them weight, especially in assessing the 

credibility of witnesses.” Id. (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa 

2014)). When a court terminates parental rights on more than one ground, we 

may affirm the order on any of the statutory grounds supported by clear and 

convincing evidence. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). “Evidence 

is considered clear and convincing ‘when there are no “serious or substantial 

doubts as to the correctness [of] conclusions of law drawn from the evidence.”’” 

In re M.W., 876 N.W.2d at 219 (alteration in original) (citation omitted). 
5

“However, termination of the parental rights of an Indian child shall not be 

ordered unless supported by evidence beyond a reasonable doubt that ‘the 

continued custody of the child by the child’s parent or Indian custodian is likely to 

result in serious emotional or physical damage to the child.’” In re D.S., 806 

N.W.2d 458, 465 (Iowa Ct. App. 2011) (quoting Iowa Code § 232B.6(6)(a)). “The 

evidence must also include the testimony of a qualified expert witness as defined 

in section 232B.10.” Id. 

III. Analysis

“Our review of termination of parental rights under Iowa Code chapter 232 

is a three-step analysis.” In re M.W., 876 N.W.2d at 219. First, we must 

determine whether the State established the statutory grounds for termination by 

clear and convincing evidence. See Iowa Code § 232.116(1); In re M.W., 876 

N.W.2d at 219. Second, if the State established statutory grounds for 

termination, we consider whether termination is in the child’s best interests under 

section 232.116(2). See In re M.W., 876 N.W.2d at 219–20. Finally, we consider 

whether any exceptions under section 232.116(3) weigh against termination. 

See id. at 220. 

“In addition to this analysis, Iowa Code chapter 232B sets forth Iowa’s 

[ICWA], which extends further protections to Indian families and tribes.” In re 

D.S., 806 N.W.2d at 465. ICWA has a dual purpose: “to protect the best 

interests of a child and preserve the Indian culture.” Id. ICWA applies even 

when “there is no evidence the child has been raised in an Indian culture.” Id.; 

see also Iowa Code § 232B.5(2) (“A state court does not have discretion to 

determine the applicability of . . . this chapter to a child custody proceeding 
6

based upon whether an Indian child is part of an existing Indian family.”). Still, 

our primary consideration remains the best interests of the child. In re D.S., 806 

N.W.2d at 465. 

A. Statutory Grounds

The parents do not dispute the grounds for termination have been proved 

under Iowa Code section 232.116(1)(h),

3

and the record clearly shows these 

statutory requirements have been met. At the time of the termination hearing, 

R.M. was under the age of three. The juvenile court ordered R.M. removed from 

her parents’ custody in October 2015, and there have been no trial periods at 

home. R.M. was adjudicated CINA in December 2015. Additionally, both 

parents admitted at the hearing that R.M. could not be returned to their care at 

that time and instead requested the court grant them an additional six months to 

achieve reunification or establish a guardianship with the child’s maternal 

grandmother. Furthermore, the caseworker for the child’s tribe testified the 

return of the child to the parents’ custody would risk severe emotional or physical 

harm to the child. 

Instead, the parents both contend the State did not make active efforts to 

reunify the child with her parents. See Iowa Code § 232B.5(19) (“A party seeking 

. . . termination of parental rights over an Indian child shall provide evidence to 

the court that active efforts have been made to provide remedial services and 

 

3 Under Iowa Code section 232.116(1)(h), the court may terminate parental rights 

if the court finds the child (1) is three years old or younger; (2) has been 

adjudicated CINA; (3) has been removed from the physical custody of the parent 

for at least six of the last twelve months, or the last six consecutive months and 

any trial period at home has been less than thirty days; and (4) cannot be 

returned to the parent’s custody at the time of the termination hearing. 
7

rehabilitative programs designed to prevent the breakup of the Indian family and 

that these efforts have proved unsuccessful.”). The parents did not raise this 

issue to the juvenile court until after the termination order was entered and the 

supreme court remanded the case. The juvenile court did not rule on this issue 

in its amended and reissued order, and the parents did not file a motion seeking 

a ruling on this issue. Therefore, these claims are not preserved for our review. 

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.”); see also In 

re J.D.B., 584 N.W.2d 577, 581 (Iowa Ct. App. 1998) (“[N]othing in ICWA . . . 

expressly or impliedly preempts a state’s error preservation rules.”). 

Accordingly, we affirm the juvenile court’s order terminating the father’s 

and the mother’s parental rights to their child pursuant to Iowa Code section 

232.116(1)(h). 

B. Best Interests

The parents next contend termination of their parental rights was not in 

their child’s best interests under Iowa Code section 232.116(2). Even if a 

statutory ground for termination is met under section 232.116(1), a decision to 

terminate must still be in the best interests of the child under section 232.116(2). 

In re M.W., 876 N.W.2d at 224. 

In determining whether termination of a parent’s parental rights 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.” Iowa 
8

Code § 232.116(2). “Insight for the determination of a child’s long-range best 

interests 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.” In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (quoting In 

re C.B., 611 N.W.2d 489, 495 (Iowa 2000)). 

The record shows both parents have a history of substance abuse that 

they failed to address during the year the underlying CINA case was open. The 

parents did not obtain stable employment or housing, and neither parent took any 

steps to resolve their domestic-violence, anger-management, and mental-health 

issues. The parents never progressed beyond supervised visits with their child 

and their participation in visits was sporadic—the parents often showed up late to 

the visits or left early when they did attend them. They provided minimal financial 

assistance to the maternal grandmother for R.M.’s care. Additionally, the father 

had several criminal charges pending against him at the time of the termination 

hearing. 

We cannot ask this child to continuously wait for her parents to become 

stable. See In re D.W., 791 N.W.2d at 707; see also In re A.B., 815 N.W.2d at 

778 (“It is simply not in the best interests of children to continue to keep them in 

temporary foster homes while the natural parents get their lives together.” 

(quoting In re C.K., 558 N.W.2d 170, 175 (Iowa 1997))). R.M. has been in her 

maternal grandmother’s home since she was approximately one month old. 

She’s doing well in her care, and the grandmother wishes to adopt the child. 

Furthermore, the caseworker for the child’s tribe testified placement with her 

grandmother is culturally appropriate and supported by the tribe and that a 
9

guardianship was not preferred due to the child’s young age. Termination is in 

this child’s best interests. 

C. Permissive Factors 

“Once we have established that the termination of parental rights is in the 

[child’s] best interests, the last step of our analysis is to determine whether any 

exceptions in section 232.116(3) apply to preclude the termination.” In re M.W., 

876 N.W.2d at 225. Both parents assert the juvenile court should not have 

terminated their respective parental rights because they each share a bond with 

their child and the child is placed with a relative. 

Iowa Code section 232.116(3)(a) provides “[t]he court need not terminate 

the relationship between the parent and child if . . . [a] relative has legal custody 

of the child.” Section 232.116(3)(c) provides a court may decide not to terminate 

a parent’s parental rights if “[t]here is clear and convincing evidence that the 

termination would be detrimental to the child at the time due to the closeness of 

the parent-child relationship.” The application of section 232.116(3) is 

permissive, not mandatory. In re A.M., 843 N.W.2d at 113. “The court has 

discretion, based on the unique circumstances of each case and the best 

interests of the child, whether to apply the factors in this section to save the 

parent-child relationship.” In re D.S., 806 N.W.2d at 475. 

After reviewing the record in its entirety, we agree with the juvenile court 

that any exception to termination should not be applied in this case. See In re 

C.K., 558 N.W.2d at 174 (“An appropriate determination to terminate a parentchild relationship is not to be countermanded by the ability and willingness of a 

family relative to take the child.”). As noted above, R.M. is placed with her 
10

maternal grandmother and is thriving in her care. The grandmother is willing to 

adopt her. R.M. is very young, and she needs and deserves permanency and 

stability. See In re A.B., 815 N.W.2d at 777 (“It is well-settled law that we cannot 

deprive a child of permanency after the State has proved a ground for 

termination under section 232.116(1) by hoping someday a parent will learn to be 

a parent and be able to provide a stable home for the child.” (quoting In re P.L., 

778 N.W.2d 33, 41 (Iowa 2010))). 

Furthermore, any bond that exists between the parents and R.M. is 

limited, considering the child’s young age and the time she has spent out of her 

parents’ care. Indeed, the father admitted at the termination hearing he did not 

have a “significant” bond with his child. The parents did not take advantage of 

the offered visits, often cancelling visits with their child or failing to confirm visits. 

When the parents did attend visits, they were often late, left early, or caused a 

visit to end early due to their volatile behaviors. Thus, we conclude no 

permissive factors under section 232.116(3) apply to preclude termination in this 

case. 

D. Additional Time

Finally, the parents argue the juvenile court should have granted their 

requests for additional time to work toward reunification with their child. Under 

Iowa Code section 232.104(2)(b), a court may authorize a six-month extension if 

it determines “the need for removal of the child from the child’s home will no 

longer exist at the end of the additional six-month period.” 

We must now view this case with a sense of urgency. See In re C.B., 611 

N.W.2d at 495. “[A]t some point, the rights and needs of the children rise above 
11

the rights and needs of the parent.” In re C.S., 776 N.W.2d 297, 300 (Iowa Ct. 

App. 2009). Based upon our de novo review of the record, we are not persuaded 

the need for removal would no longer exist at the end of six months. See Iowa 

Code § 232.104(2)(b). 

IV. Conclusion

We have carefully reviewed the record, the briefs of the parties, and the 

juvenile court’s ruling. Upon our de novo review, we conclude the State proved 

the statutory grounds for termination of the father’s and the mother’s parental 

rights and termination is in the child’s best interests. We further find no 

permissive factors weighing against termination exist so as to preclude 

termination. Finally, the juvenile court correctly denied any request for additional 

time to work toward reunification. Accordingly, we affirm. 

AFFIRMED ON BOTH APPEALS.