In re X.M.

• Decision Date: 07 December 2022
• Docket Number: 22-1533
• Parties: IN THE INTEREST OF X.M. and B.M., Minor Children, S.M., Father, Appellant.
• Court: Iowa Court of Appeals

IN THE INTEREST OF X.M. and B.M., Minor Children, S.M., Father, Appellant.

No. 22-1533

Court of Appeals of Iowa

December 7, 2022

Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.

A father appeals the termination of his parental rights.

Judith M. O'Donohoe of Elwood, O'Donohoe, Braun &White, Charles City, for appellant father.

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

Mark A. Milder of Mark Milder Law Firm, Denver, attorney and guardian ad litem for minor children.

Considered by Vaitheswaran, P.J., and Ahlers and Buller, JJ.

1

BULLER, JUDGE

The father of B.M. and Xe.M., born in 2020 and 2021, appeals the termination of his parental rights. We view his petition as raising the following arguments: (1) the State failed to prove the statutory grounds for termination, (2) termination is not in the best interests of the children, (3) the mother's custody of the children and the father's bond with the children preclude termination, (4) the juvenile court judge should have recused herself due to bias, and (5) the court should wait until resolution of his criminal appeal to decide whether to terminate his parental rights. We reject all of the father's arguments on appeal and affirm.

I. Background Facts and Proceedings

We set out the factual background when we affirmed B.M.'s child-in-need-of-assistance (CINA) adjudication. See In re B.M., No. 21-0820, 2021 WL 3661402, at *1 (Iowa Ct. App. Aug. 18, 2021). Briefly, the father and mother here are also the parents of Xa.M. Id. Xa.M. died in August 2019 after sustaining an injury while in the father's sole care. "Law enforcement became involved because examination of [Xa.M.] revealed skull fractures, retinal hemorrhaging, and brain damage. Medical personnel . . . concluded the injuries were caused by nonaccidental trauma consistent with abuse." Id. The father told law enforcement "he was walking with the child and fell in the kitchen, hitting the counter and then falling with his full body weight on the child." Id.

The father was arrested in March 2020 and charged in Xa.M.'s death. In April, the district court granted the father pre-trial release on bond, with the condition he have no unsupervised contact with minor children. The father and mother continued their romantic relationship, and B.M. was born in August 2020.

2

To satisfy the terms of his pre-trial release, the father moved out of the home he shared with the mother prior to B.M.'s birth. B.M. was removed from the parents' custody and care shortly after birth and later adjudicated in need of assistance. In May 2021, the juvenile court returned B.M. to the mother's home and allowed the father supervised visitation. Xe.M. was born in October 2021. Xe.M. was also adjudicated in need of assistance shortly after birth; the court removed the child from the father's custody and care, transferred sole custody to the mother for placement in her home, and allowed the father supervised visitation.

Meanwhile, the father's criminal trial began in January 2022, after which the jury found him guilty of involuntary manslaughter and child endangerment resulting in death. In returning a guilty verdict for involuntary manslaughter, the jury found the following elements beyond a reasonable doubt, based on the marshaling instruction:

1. On or about . . . August 2019, the defendant recklessly committed the crime of assault against [Xa.M.]

2. The defendant did the act in a manner likely to cause death

3. When the defendant committed the assault, the Defendant unintentionally caused the death of [Xa.M.], a child.

The jury found the following elements for child endangerment resulting in death:

1. On or about . . . August 2019, in Floyd County, Iowa, the defendant was the parent or a person having custody or control of [Xa.M.].

2. [Xa.M.] was under the age of fourteen years.

3. The defendant acted with knowledge that he was creating a substantial risk to [Xa.M.]'s physical health or safety.

4. The defendant's act resulted in the death of [Xa.M.].

At sentencing, the manslaughter conviction merged into the child-endangerment-resulting-in-death conviction, and the court sentenced the father to a term of incarceration not to exceed fifty years with a mandatory minimum of fifteen years.

3

He filed a notice of appeal, which was pending at the time of the termination hearing.

After sentencing, separate petitions were filed in April 2022 to terminate the father's parental rights. The juvenile court held the termination hearing on August 30. The mother testified she and the children have had no contact with the father since he was taken into custody in April. The mother also testified she...