In re M.S.

• Docket Number: 23-0828
• Decision Date: 30 August 2023
• Parties: IN THE INTEREST OF M.S., Minor Child, D.S., Mother, Appellant.
• Court: Court of Appeals of Iowa

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IN THE INTEREST OF M.S., Minor Child, D.S., Mother, Appellant.

No. 23-0828

Court of Appeals of Iowa

August 30, 2023

Appeal from the Iowa District Court for Johnson County, Joan M. Black, District Associate Judge.

The mother appeals the termination of her parental rights.

Matthew Shimanovsky, Iowa City, for appellant mother.

Brenna Bird, Attorney General, and Mary A. Triick (until withdrawal) and Tamara Knight, Assistant Attorneys General, for appellee State.

Sara Strain Linder of Linn County Advocate, Cedar Rapids, attorney and guardian ad litem for minor child.

Considered by Greer, P.J., and Schumacher and Badding, JJ.

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GREER, PRESIDING JUDGE.

The mother of a child born in July 2022 appeals the termination of her parental rights. Because we find the mother failed to preserve error on her right-to-counsel claim and, like the juvenile court found, additional time would not remove impediments to reunification, termination of the mother's parental rights is in the best interests of the child, the permissive exception under Iowa Code 232.116(3) (2023) does not prevent termination, and a guardianship was not in the child's best interests, we affirm the termination of the mother's parental rights.

I. Background Facts and Proceedings.

To start, M.S. was born several weeks premature and placed in the neonatal intensive care unit with serious health concerns.^[1] From birth on, the child has never lived with her mother or father.^[2] While she and her mother were still in the hospital following her premature birth, the mother began pulling large amounts of the child's hair out of her head-causing open sores-and picking at the scabs. Hospital staff requested that the mother stop harming the child and, on more than one occasion, reminded the mother to properly support the child's head while holding her and to console her when she was fussy and crying.

Because of these concerning behaviors, the child was removed from her mother's custody before the child's discharge from the hospital. The Iowa Department of Health and Human Services (the department), placed the child with a foster family. Due to complications from loss of oxygen and brain bleed during

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birth, the child requires additional medical care and attention beyond that of other children. To address her seizures, the child has had two electroencephalograms since birth. The child takes medication to prevent further seizures and eats mostly through a nasogastric tube. In early 2023, she was diagnosed with cerebral palsy and requires regular physical therapy appointments.

At an August 2022 hearing to review the removal of the child from the mother's custody, the mother requested to represent herself. The juvenile court granted her request but required her attorney, who was present, to remain as standby counsel throughout the hearing. At all subsequent proceedings, this same attorney continued to offer standby representation of the mother. The State began a child-in-need-of-assistance (CINA) proceeding that same month. The mother failed to appear at the CINA adjudication hearing,^[3] and the juvenile court adjudicated M.S. as a CINA in September 2022. At supervised visits between the child and the mother, the mother struggled to develop basic infant care skills and was unable to feed, handle, bathe, and diaper the child appropriately. She also failed to arrive at supervised visits with appropriate supplies. The department social work case manager noted that the mother often did not attend fully supervised visits and often did not answer phone calls. The mother did not attend any of the child's medical appointments throughout the proceedings.

In February 2023, the State petitioned to terminate the mother's parental rights under Iowa Code section 232.116(1)(e) and (h). The juvenile court held a permanency hearing the same month. Throughout the time prior to and during the

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termination and permanency proceedings, the mother was often without permanent housing and employment. Although the mother spent some time living in a shelter, she also spent much of her time living on the street and sleeping in public places. At the time of the termination-of-parental-rights (TPR) trial, she had not yet finalized her housing. The mother worked at some jobs, but not consistently. Similarly, although the mother made some improvements in caring for the child, at times she was unable to follow the instructions of care professionals and to demonstrate basic parenting skills or bring diapers, wipes, and bottles to supervised visits. During her testimony the mother was unable to name any of the child's medical providers.

At the TPR trial in April, the mother had the benefit of the same standby counsel who was involved in the removal hearing. When she was asked at the TPR trial if the child could be returned to her that day, the mother said, "[T]oday wouldn't be a good day. I would be able to . . . have everything together solidly, I would probably say within the next three weeks." Later during the trial, the mother suggested that the child could live with the child's great aunt in Texas under a limited guardianship. In May, the juvenile court terminated the mother's parental rights under Iowa Code section 232.116(1)(h).

II. Standard of Review.

We review a termination of parental rights de novo. In re Z.K., 973 N.W.2d 27, 32 (Iowa 2022). "[O]ur fundamental concern" in review of TPR proceedings "is the child's best interests." In re J.C., 857 N.W.2d 495, 500 (Iowa 2014). We give careful consideration to the juvenile court's factual findings and in-person

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observations, but we are not bound by them. In re W.M., 957 N.W.2d 305, 312 (Iowa 2021).

In general, we follow a three-step analysis in reviewing the termination of a parent's rights. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). We first consider whether there is a statutory ground for termination of the parent's rights under section 232.116(1). Id. Second, we look to whether termination of the parent's rights is in the child's best interests. Id. (citing Iowa Code § 232.116(2)). Third, we consider whether any of the exceptions to termination in section 232.116(3) should be applied. Id.

III. Analysis.

The juvenile court terminated the mother's parental rights to the child under Iowa Code section 232.116(1)(h), which requires proof that the child (1) is under three years old, (2) was adjudicated a CINA, (3) was removed from the physical custody of the parent for at least six of the last twelve months, and (4) cannot be returned to the parent's custody at the time of the termination trial. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (considering whether the child could be returned home "at the time of the termination hearing" when reviewing termination under section 232.116(1)(h)(4)). Now on appeal, the mother does not dispute the statutory grounds for termination. But she raises five errors she claims the juvenile court made: (1) allowing the mother to represent herself in the CINA proceeding, (2) not allowing additional time for reunification, (3) finding that termination was in the best interests of the child, (4) concluding that Iowa Code section 232.116(3) did not prevent termination of the mother's rights, and (5) failing to consider a limited guardianship as an alternative.

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A. Self-Representation in CINA Proceeding.^[4]

First, we consider the mother's claim that the juvenile court erred in allowing her to represent herself in the CINA proceeding. For us to properly consider a claim on appeal, the issue must have been both raised in and decided by the court below. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). The mother concedes that she did not...