IN THE COURT OF APPEALS OF IOWA
No. 1-596 / 00-1193
Filed February 20, 2002
IN THE INTEREST OF W.C., III, D.L., D.L., and E.W.L.,
W.C., Jr., Father of W.C., III,
Z.W., Grandmother of W.C., III,
Appeal from the Iowa District Court for Polk County, Cynthia M.
Moisan, District Associate Judge.
The father of W.C., III and the mother of W.C., III and D.L. appeal
from the juvenile court's ruling terminating their parental rights. The
paternal grandmother of W.C., III also appeals from the court's termination
Thomas J. McCann, Des Moines, for appellants mother and father.
Robert A. Wright, Jr., Des Moines, for appellant grandmother.
Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant
Attorney General, and Cory McClure, Assistant County Attorney, for appellee-
J. Michael Mayer, Des Moines, guardian ad litem for minor child
E.W.L., and Michelle Miller, Des Moines, guardian ad litem for all other
Heard by Mahan, P.J., and Miller and Hecht, JJ.
The father of William III and the mother of Devon and William III
appeal from the juvenile court's ruling terminating their parental rights.
The paternal grandmother of William III also appeals. The parents contend
(1) the ex parte temporary removal of the children from the custody of
William III's paternal grandmother was illegal and not warranted, and (2)
the trial court erred in terminating their rights to the children. William
III's paternal grandmother claims (1) the children's best interests dictate
placement with her, and (2) the trial court erred in denying her
application for the appointment of appellate counsel. We affirm.
I. BACKGROUND FACTS.
Daeleene is the biological mother of Danielle, born January 12, 1987,
Devon, born May 30, 1991, and William III, born April 11, 1996. The
father of William III is William II. The putative father of Devon is
David, whose rights were also terminated in this proceeding. The natural
father of Danielle is Edgar, whose parental rights have previously been
A child abuse report for denial of critical care was founded against
Daeleene in 1995. No services were provided to the family at that time.
Danielle and Devon were removed from Daeleene's custody with her consent on
July 8, 1997 after Danielle alleged William II physically and sexually
abused her. It was also noted that William II physically abused Daeleene.
William II was subsequently charged criminally with child endangerment.
Danielle and Devon were placed with Daeleene's mother and stepfather,
Vanessa and Edgar. The parents agreed to services to keep William III
in the home. The State filed child in need of assistance (CINA) petitions
in July 1997 based on Iowa Code section 232.2(6)(b) and (c)(2) (1997) for
all three children.
Services for William III were not initiated, and he was removed and
placed in the care of his paternal grandmother, Zella, in August 1997. The
court ordered that there was to be no contact between William II and
William III other than supervised visits. Devon and Danielle were removed
from Vanessa and her husband's care and placed in foster care.
On October 21, 1997, the court adjudicated the children CINA pursuant
to the allegations of the petition. The children continued in their
placements, but Danielle and Devon could be moved to Zella's custody with
consent of DHS and the guardian ad litem.
In March 1998, Zella's husband was charged with possession of
cocaine. He stipulated to a finding of guilt. William II was charged with
possession of crack cocaine, possession of a controlled substance with the
intent to deliver, and felony possession of a firearm. Daeleene was
charged with possession of a controlled substance. In May 1998, the
children were confirmed CINA, and they were all placed in Zella's custody.
The State filed a termination petition on August 21, 1998, requesting
termination of Daeleene's rights to Devon and Danielle and Daeleene's and
William II's rights to William III. The juvenile court found termination
was not in the children's best interests, and the petition was dismissed.
The children were confirmed to be CINAs, and they continued in Zella's
In March 1999, William II and Daeleene were charged with possession
of a controlled substance, and William II was also charged with felon in
possession of a firearm. As a result of a raid on William II's and
Daeleene's home, in-home services were discontinued due to the service
provider's safety concerns.
While placed with Zella, the children blamed her for them not being
with their parents. They lacked understanding of their permanency. Zella
had health problems and was overwhelmed caring for these children. The
children had unauthorized contact with their parents in violation of a
court order. They broke windows in her house. Edgar was using and selling
drugs. There were concerns regarding Edgar's and Danielle's absences from
and tardiness to school. Danielle was fighting, she was seen walking the
streets during the day, and she was self-mutilating. Although it was
believed Devon would benefit from medication, doctors felt they could not
ethically prescribe a controlled substance to a member of a family with
such a history of substance abuse. There were concerns about Devon's
health and appearance.
Danielle's and Devon's therapist reported that the children continued
to spiral downward from April to October 1999. On October 29, 1999, the
State filed a motion requesting the children be removed from Zella's
custody. The motion noted Danielle's self-mutilation, tardiness, and
absences from school. It stated that William II tested positive for
cocaine, and that Zella allowed unsupervised contact between the children
and their parents in violation of the court's order. The court verbally
entered an ex parte order removing all the children from Zella's custody.
After removal, Danielle and Edgar tested positive for drugs. They both ran
away. Edgar has returned to Zella's care, but Danielle was still on the
run at the time of the termination hearing.
The State filed a termination petition on behalf of Danielle, Devon,
and William III. The State alleged termination of Daeleene's parental
right to Danielle and Devon was warranted under Iowa Code section
232.116(1)(c) and (e) (1999), and termination of William II's and
Daeleene's rights to William III was warranted under section 232.116(1)(c)
and (g). The State later dismissed its allegation as to William III under
section 232.116(1)(g), and instead alleged termination was warranted under
After removal from Zella's custody, Devon and William III made great
progress in their foster homes. Devon was prescribed Ritalin, and he was
doing much better in school. He exhibited improved concentration,
behavior, and social skills, and he seemed happier and more relaxed. He is
a special needs child, and requires a very high amount of structure and
very active parents. Foster care has been a source of stability for the
children. The Iowa Department of Human Services (DHS) case manager
recommended termination because if the children were returned to the
parents, the children would be at risk of exposure to illegal drugs and
Devon's therapist was concerned that his progress since removal would
be lost if he were returned to his parents or Zella. The DHS case manager
testified that termination would give the children permanency. She
testified that placement with Zella had been a concern. She would not
recommend Devon and William III be returned to Zella's care. Zella was not
able to provide Devon with structure and consistency, take him to therapy
consistently and regularly, and provide him with the quality of life he was
receiving in foster care. William III was being provided with structure,
stability, and discipline in foster care that he was not receiving from
Zella. Zella's home was not pre-adoptive.
William II and Daeleene have been inconsistent throughout this case
with providing urine samples until the October 1999 removal of the children
from Zella's custody. The parents sometimes tested positive for drugs.
They did not consistently comply with or participate in services. Both
denied drug use to substance abuse treatment providers. Daeleene attended,
but did not participate well in, parenting classes. In-home services were
discontinued after the raid on the parental home in March 1999. William
II's participation in domestic abuse intervention services was lacking.
The juvenile court terminated Daeleene's parental rights to Devon and
William III pursuant to section 232.116(1)(e) and William II's rights to
William III pursuant to section 232.116(1)(e). It dismissed the
termination petition as to Danielle and placed custody and guardianship of
her with Zella. The hearing on the October 29, 1999 removal was concluded
at the termination hearing. The juvenile court confirmed the temporary
II. SCOPE OF REVIEW.
We review termination proceedings de novo. Iowa R. App. P. 4; In re
S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999). Accordingly, we review both
the facts and the law and adjudicate rights anew. In re T.A.L., 505 N.W.2d
480, 482 (Iowa 1993). We give weight to the factual determinations of the
juvenile court, especially when considering the credibility of witnesses,
but are not bound by them. Id. The grounds for termination must be proven
by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 831 (Iowa
Ct. App. 1997). Our primary concern is the best interests of the child.
III. THE EX PARTE TEMPORARY REMOVAL.
The juvenile court entered a written order on the State's application
to modify the children's placement on October 29, 1999. The written order
set the matter for hearing, but was silent on the issue of temporary
removal pending a hearing. The court verbally entered an ex parte order
removing the children from Zella's care. The parents argue this removal
violated their due process rights and was not warranted.
We find that due process has been afforded the parents. When a child
is already under juvenile court jurisdiction, the court has inherent power
to "temporarily, even summarily, remove a child pending a hearing on the
modification." In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994). Therefore,
a modification hearing under section 232.104(6) need not be held prior to
the entry of an ex parte temporary removal order. Furthermore, the record
shows the removal was warranted. The State alleged that Zella was letting
the children see the parents in violation of a court order, William II
tested positive for cocaine, and Danielle was self-mutilating and was tardy
and absent from school often. We affirm.
IV. COURT-APPOINTED APPELLATE COUNSEL.
The juvenile court refused to appoint appellate counsel for Zella.
Zella contends this was erroneous, as she has a statutory right to
When construing statutes, our ultimate goal is to ascertain and give
effect to the intention of the legislature. Peterson v. Ford Motor Credit
Co., 448 N.W.2d 316, 318 (Iowa 1989). We consider the language of the
statute and the objects sought to be accomplished. Id.
Our legislature has divided our juvenile justice chapter into
separate divisions governing juvenile delinquency proceedings, CINA
proceedings, termination proceedings, and family in need of assistance
proceedings. Parents, guardians, or custodians are provided a right to
appointed counsel under the division governing CINA proceedings. Iowa Code
§ 232.89(1). Parents are provided a right to appointed counsel under the
division governing termination proceedings. Iowa Code § 232.113(1).
We conclude that the right to appointed counsel under section
232.89(1) applies only to CINA proceedings. See In re L.A.J., 495 N.W.2d
128, 130-31 (Iowa Ct. App. 1992) (holding that the parents of a child
involved in a juvenile delinquency proceeding did not have a right to
counsel under section 232.89(1)); see also In re R.L.D., 456 N.W.2d 919,
921 (Iowa 1990) (stating that parent, guardian, or custodian is statutorily
entitled to appointed counsel in CINA proceedings and family in need of
assistance proceedings, and parents have statutory right to appointed
counsel in termination proceedings). We conclude that only section
232.113(1) provides a right to counsel in termination proceedings. Only a
parent has a right to appointed counsel under that section. We conclude
that the legislature deliberately made no provision for the appointment of
counsel to represent the guardian or custodian of a minor in termination
proceedings. Therefore, Zella, as grandparent of William III, does not
have a right to court-appointed counsel in this termination proceeding, and
the court properly denied her request for court-appointed appellate
counsel. We affirm.
V. BEST INTERESTS OF THE CHILDREN.
The controlling standard in cases involving the termination of
parental rights is the best interests of the children involved. In re
Dameron, 306 N.W.2d 743, 745 (Iowa 1981).
We look to the child's long-range, as well as immediate,
interests. We consider what the future holds for the child if
returned to his or her parents. Insight for this determination can be
gained from evidence of the parent's past performance, for that
performance may be indicative of the quality of the future care the
parent is capable of providing. Our statutory termination provisions
are preventative as well as remedial. They are designed to prevent
probable harm to a child.
In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998) (citing In re C.M.W., 503
N.W.2d 874, 875 (Iowa Ct. App. 1993)). It is well established there exists
a parental interest in maintaining the integrity of the family unit.
Dameron, 306 N.W.2d at 745. This interest, however, is not absolute and
may be forfeited by certain parental conduct. Id. The State has a duty to
assure that every child within its borders receives proper care and
treatment and it must intercede when parents abdicate that responsibility.
Neither the parents nor Zella contend that the statutory basis for
termination has not been met. Accordingly, they have waived this argument.
See Iowa R. App. P. 14(a)(3) (failure in the brief to state, to argue, or
to cite authority in support of an issue may be deemed waiver of that
issue). They argue termination was not in the children's best interests.
Zella additionally argues that if termination was proper, then the children
should have been placed with her.
This case is replete with evidence of substance abuse and violence in
the parental home. The parents have not addressed these issues. Neither
parent cooperated fully with the case permanency plan. The parents have
not requested that the children be returned to their care. If returned to
their care, the children would be exposed to substance abuse and violence.
We conclude it is in the children's best interests to terminate parental
We find no inconsistency in the fact that Daeleene's rights to Edgar
and Danielle were not terminated, whereas both parents' rights to Devon and
William III were terminated. The children's needs are different. The two
older children were in a different situation than the younger children.
Furthermore, while siblings should be kept together whenever possible, our
primary concern remains the best interests of the children. In re T.J.O.,
527 N.W.2d 417, 420 (Iowa Ct. App. 1994). We find that termination is in
the children's best interests.
Although we question whether error was preserved, we address Zella's
argument that the children should have been placed with her. We find that
it was proper not to place the children with Zella. The record shows she
was having trouble caring for all the children, and Devon and William III
have improved significantly since being removed from her custody. The
service providers in this case are concerned that the children will regress
if returned to her custody. Termination will provide the children with the
permanency they require. We find that it is in the children's best
interests that they not be placed in Zella's custody.
We affirm the juvenile court's ruling terminating parental rights.
 Daeleene is also the mother of Edgar, born August 13, 1984, who is not
a child in interest in the present termination action.
 Daeleene's stepfather, Edgar, is also the biological father of
Danielle. To avoid confusing him with Daeleene's son, Edgar, he will
hereafter be referred to as Vanessa's husband and further references to
"Edgar" will be to Daeleene's son.