In the Interest of B.B., Minor Child

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1816 Filed May 10, 2023

IN THE INTEREST OF B.B., Minor Child,

A.D., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Brent Pattison, District

Associate Judge.

A mother appeals the termination of her parental rights to her five-year-old

son. AFFIRMED.

Lori M. Holm, Des Moines, for appellant mother.

Brenna Bird, Attorney General, and Ellen Ramsey-Kacena (until

withdrawal) and Mary A. Triick, Assistant Attorneys General, for appellee State.

Lynn Vogan, Des Moines, attorney and guardian ad litem for minor child.

Considered by Tabor, P.J., and Schumacher and Ahlers, JJ. 2

SCHUMACHER, Judge.

A mother appeals the termination of her parental rights. She claims the

State did not establish a ground for termination. She also claims termination is not

in the child’s best interests, and that this court should decline to terminate her rights

due to the close bond she shares with the child. We find the State established a

ground for termination by clear and convincing evidence. Termination is in the

child’s best interests. And, like the juvenile court, we decline to apply an exception

to preclude termination of the mother’s rights. We affirm.

I. Background Facts & Proceedings

This is a case about B.B., a five year-old boy who has been under the

jurisdiction of the juvenile court for all but seven months of his life. His mother

gave birth to B.B. in 2017.1 She and B.B.’s father ended their relationship about

four months later. Allegations of domestic violence and substance abuse brought

the family to the attention of the Iowa Department of Human Services.2 In August

2017, the juvenile court adjudicated B.B. as a child in need of assistance (CINA).

That CINA case closed in July 2020 with a bridge order granting sole custody of

B.B. to the mother.3

1 The mother has another child she placed out of state when the mother was dealing with a heroin addiction. That child is not part of these proceedings. 2 The department is now known as the Iowa Department of Health and Human

Services. 3 The court placed B.B. in the mother’s custody because of the father’s alcohol

abuse and his minimal contact with B.B. And the mother tested negative for drugs over the course of the first CINA case. In May 2020, the mother married an individual who had a criminal history, including methamphetamine manufacturing. They divorced in April 2022. 3

But placement of the child with the mother was short-lived. Three months

after the closure of the CINA case, West Des Moines police encountered the

mother and then three-year-old B.B in a hotel parking lot. The two were in a

running car at night with the headlights off. When the mother opened the car door,

officers smelled marijuana. Based on that smell, they searched the car and found

a glass pipe and marijuana. Officers also searched the mother’s purse and found

a syringe. The mother was arrested and B.B. was placed outside the mother’s

home under a safety plan.

After the mother’s release from jail the next day, she spoke with the

department.4 The mother agreed to continue the safety plan, with the individual

with whom B.B. was placed serving as B.B.’s primary caregiver and supervising

the mother’s interactions with B.B. The mother also shared her drug history with

the department—including a heroin addiction for which she successfully sought

treatment in 2016. In later discussions, she agreed to undergo drug screening

because of the nature of her arrest.

But the mother failed to follow through with that testing. Days later, she took

B.B. from his placement without telling the department. The case worker called

many times but could not get in touch with her.5 The mother evaded the

4 The mother said she and B.B. were staying at the hotel to give the placement a break. She also asserted that the drugs and paraphernalia were not hers and that she did not know that contraband was in the borrowed car. The juvenile court found these assertions lacking in credibility because the mother had been arrested before in the same car and police found the syringe in her purse. 5 The mother did contact her case worker once in November by email. She told

the worker that her phone was broken, that she was sick, and she was self- quarantining. She agreed to reach out once she was feeling better, but never followed through. 4

department until December 2020 when workers obtained her new address. Once

workers confronted the mother at her home, she admitted knowing that the

department had been trying to contact her “but [she] was just busy.” She again

agreed to drug testing and to undergo a substance-abuse evaluation. The mother

asked the department to place B.B. with her ex-boyfriend, Bradley.

The mother evaded drug testing again. She did obtain a substance-abuse

evaluation but she reported no substance use in the last five years—despite her

recent arrest and her guilty plea to a drug possession charge in 2018. On top of

that, the department had trouble contacting her or Bradley. As a result, the

department sought a temporary removal order.

In January 2021, the court ordered B.B. be removed from the mother’s

custody. Two months later, the court again adjudicated B.B. as a CINA because

of the mother’s unaddressed substance abuse and her reluctance to work with the

department.6 The mother again requested B.B. be placed in Bradley’s care. But

the department placed the child in foster care because Bradley had a criminal

history.7 The court found that the mother needed “to address the combination of

substance abuse, mental health, and relationship issues that lead to unsafe

situations for [B.B.]” And the court ordered her to comply with the department’s

directives for drug screens and therapy referrals.

6 The court was also concerned about the mother’s relationship with her husband, given his arrest warrant and criminal history. The mother claimed that they were separated by the date of the CINA hearing. 7 Bradley testified at the termination trial that all of his criminal offenses occurred

more than a decade earlier, explaining he had two domestic abuse convictions and a third-degree attempted burglary in 2002 and a methamphetamine charge in 2008. 5

The department’s primary concern revolved around the mother’s substance

abuse. The mother failed to comply with drug testing throughout these

proceedings. When she did participate in testing, she tested positive for

methamphetamine, including in tests conducted in April and June 2022. She has

only had one drug test come back negative for illegal substances. The mother

contends her only use of methamphetamine occurred in July 2022, suggesting the

other drugs tests were false positives caused by environmental contamination.

The juvenile court did not find that assertion credible.

The mother has failed to engage in substance-abuse treatment to address

the department’s concerns. She obtained a substance-abuse evaluation in spring

2022 that recommended extensive outpatient therapy, but by June the mother

admitted she had not attended recently. She obtained another substance-abuse

evaluation in July. She had not yet started treatment by the termination hearing

but acknowledged she could have done so.

Despite the mother’s failure to meaningfully address her substance-abuse

issues, she has made some progress in other aspects of the department’s

recommendations. Her individual therapist and B.B.’s therapist agreed that the

mother consistently attended appointments. She appeared for visits with B.B., and

planned fun activities for her and the child. She did not present behavioral

indicators of drug use during those visits. The child’s therapist, based only on what

was observed during therapy, recommended increased visitation from the existing

visitation schedule that occurred twice a week and were fully supervised. Her

recommendation was qualified though given the mother’s continued use of illegal

substances. 6

B.B. has remained in the same foster placement since January 2021. The

placement includes two other children. B.B. has grown close to his foster mother

and foster brother. Indeed, B.B.’s therapist indicated that losing contact with the

family would be “devastating” for B.B. The mother expressed concerns at the

termination hearing that B.B.’s behavior had been regressing, including “baby-talk”

and being clingy to the mother. That said, B.B.’s therapist indicated in August 2022

that B.B. “has become significantly less aggressive and he is now exhibiting calm

and nurturing play on a consistent basis.”

The State petitioned to terminate the mother’s parental rights in July 2022.

Following the termination hearing—during which, for the first time, the mother

acknowledged her drug use, albeit only conceding to the use of methamphetamine

in July 2022—the court terminated the mother’s parental rights pursuant to Iowa

Code section 232.116(1)(f) (2022).8 The mother appeals.

II. Standard of Review

We review the termination of parental rights de novo. In re A.B., 815 N.W.2d

764, 773 (Iowa 2012). “We give weight to the juvenile court’s factual findings,

especially when considering the credibility of witnesses, but we are not bound by

them.” Id. (citation omitted). Our overriding consideration is the best interests of

the child. Iowa R. App. P. 6.904(3)(o).

III. Discussion

The mother claims the State failed to establish a ground for termination

under section 232.116(1). She also contends termination is not in B.B.’s best

8 B.B.’s father’s parental rights were also terminated. He does not appeal. 7

interests. And she asks this court to apply an exception to termination based on

her close bond with B.B.

A. Ground for Termination

The mother asserts the State failed to establish a ground for termination.

The court found the State established a ground under section 232.116(1)(f) by

clear and convincing evidence.9 The mother only contests the last ground, that

B.B. cannot be returned to her custody at the present time. “At the present time”

means at the time of the termination hearing. See In re D.W., 791 N.W.2d 703,

707 (Iowa 2010).

We, like the juvenile court, find clear and convincing evidence B.B. cannot

be returned to the mother at the present time. Despite the mother’s efforts at

therapy and attending B.B.’s therapy, she has not addressed the concerns that

caused B.B.’s removal in the first place: her use of illegal substances. The mother

tested positive for methamphetamine repeatedly, and admitted to using

methamphetamine as recently as July. Given her failure to attend substance-

abuse treatment or otherwise meaningfully address her substance abuse, B.B.,

particularly at his young age, could not safely be returned to her custody at the

9 That ground is met when the court finds all of the following: (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. 8

present time. See A.B., 815 N.W.2d at 776 (“We have long recognized that an

unresolved, severe, and chronic drug addiction can render a parent unfit to raise

children.”).

B. Best Interests of the Child

The mother contests whether termination is in B.B.’s best interests. When

examining this issue, 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

Code § 232.116(2).

We find termination is in B.B.’s best interests. The mother has not

addressed her drug use, only recently acknowledging it as an issue. The mother

has already been granted a six-month extension. “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.” In re P.L. 778 N.W.2d

33, 41 (Iowa 2010). B.B. has been involved in these proceedings for most of his

young life—he deserves permanency. And he is integrated into the foster

placement, which has indicated a willingness to adopt. Iowa Code

§ 232.116(2)(b). Termination is in his best interests.

C. Close Parent-Child Bond

We begin with noting that although Iowa Code section 232.116(3) contains

grounds which a juvenile court may invoke to preclude termination, such statutory

grounds are permissive, not mandatory. 9

While a finding of any of these factors allows us to choose not to terminate parental rights, “[t]he factors weighing against termination in section 232.116(3) are permissive, not mandatory.” In re A.M., 843 N.W.2d 100, 113 (Iowa 2014) (quoting In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App. 2011)). We may use our 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.” Id. (quoting D.S., 806 N.W.2d at 475).

In re M.W., 876 N.W.2d 212, 225 (Iowa 2016). In the single page of her briefing

devoted to this exception, the mother asserts this court should decline to terminate

her parental rights based on her close bond with B.B. See Iowa Code

§ 232.116(3)(c). It is uncontested that the mother and B.B. appear to share a close

bond. The juvenile court found:

There was evidence of a close relationship between [B.B] and his mother. He is sad to leave visits. He looks forward to time with her. And his therapist can see a bond during sessions with [B.B.] and his mother. However, after considering [B.B’s] young age, the length of time he has been out of home, his strong relationship with his foster family, his therapist’s input, and his need for permanency, the Court finds there are no legal exceptions in Iowa Code Section 232.116(3) which would argue against termination.

We agree with this determination. On this record, any short-term sadness

B.B. may experience does not outweigh the disadvantages the child will endure

because of the mother’s inability to provide for the child’s ongoing needs. In a

similar case we stated:

Any sadness the child may experience because of termination does not overcome the likely long-term hardship and neglect the child will suffer if in the care of [the mother] . . . . The court simply cannot find that the parent-child relationship is so strong that it outweighs the need for termination. Despite any fondness or love between the [mother] and the child, it is not in the child’s best interest to wait any longer for permanency. 10

In re A.W., No. 20-0834, 2020 WL 6157823, at *1 (Iowa Ct. App. Oct. 21, 2020).

And as highlighted by B.B.’s therapist, although B.B. and his mother share a bond,

he is in a placement that is “safe, secure, supportive, and consistent” and

separation from the placement would be “devastating.” The court’s consideration

must center on whether the child will be disadvantaged by termination, and

“whether the disadvantage overcomes [the parent’s] inability to provide for [the

child’s] developing needs.” See D.W., 791 N.W.2d at 709.

By the time of the termination hearing, B.B.’s mother had not even begun

substance-abuse treatment, twenty months after B.B.’s second removal from his

mother’s custody. The same issues plagued the mother as in the first CINA

proceeding—her failure to address her substance abuse. Particularly telling is that

the mother continued to test positive for methamphetamine. She tested positive

in April and June 2022. She failed to participate in a drug screen in August 2022,

just a month before the termination hearing, and admitted to a relapse with use of

methamphetamine the month before. And as concerning is the mother’s

dishonesty regarding her use, even at the time of the termination hearing. The

case manager noted at the termination hearing that any bond between the mother

and the child should not outweigh termination:

B.B. is a very young child who needs a safe adult to meet his everyday needs, to provide him supervision, a safe home for him, to have his medical, educational needs met. The concern in this case is ongoing methamphetamine use, and if [B.B.] can’t be safe with his mom, unfortunately I think that overrides the positive relationship or the bond that [the child’s therapist] references in her letter because he can’t be safe with a parent that continues to use. He just doesn’t have protective capacities to help himself at that age. 11

The juvenile court addressed the bond at the termination hearing. As

partially quoted by the dissent, the juvenile court stated:

But even so, I mean, like today, on the day of the TPR hearing, after twenty months of the case, you’re not in a treatment program, and that worries me, but it’s also heartbreaking to see that when I know how much [B.B.] loves you, because I really believe that a hundred percent that you guys do—I’m like [the case manager]. I’m not an expert on bond, but I know when a little boy loves his mom, and I know that’s what’s going on here. ... So, I mean, I think there’s no question in my mind that [B.B.] loves his parents and his parents love him, but I’m put in a very difficult position by how late in the game we are and I see a lot of missed opportunities; right?

To her credit, the mother recognized during her testimony that what is best

for her may not be best for B.B. The application of the urged exception to B.B.

likely destines B.B.’s future as one existing without permanency. He is just five

years old. B.B. has been in limbo for most of his life. The mother’s interactions

with B.B. remained supervised for an hour and a half twice a week at the

termination hearing. She has not demonstrated that she can safely parent full-

time, even with a previously granted extension. B.B. has waited a long time—

nearly the entirety of his life—for his mother to be able to do so. He should not

have to wait any longer.

We do not “gamble with the children’s future” by asking them to continuously wait for a stable biological parent, particularly at such tender ages. In re D.W., 385 N.W.2d 570, 578 (Iowa 1986) (quoting In re Kester, 228 N.W.2d 107, 110 (Iowa 1975)); see also In re L.L., 459 N.W.2d 489, 495 (Iowa 1990) (“Children simply cannot wait for responsible parenting. Parenting . . . must be constant, responsible, and reliable.”).

D.W., 791 N.W.2d at 707. 12

On this record, the mother failed to present clear and convincing evidence

that the child will be disadvantaged by termination and that any disadvantage

overcomes the mother’s inability to provide for the child’s developing needs. We

agree with the juvenile court’s determination that a permissive exception pursuant

to Iowa Code section 232.116(3) should not be applied to preclude termination.

AFFIRMED.

Ahlers, J., concurs; Tabor, P.J., dissents. 13

TABOR, Presiding Judge (dissenting)

“I’m not an expert on bond, but I know when a little boy loves his mom, and

I know that’s what’s going on here.” This insight from the juvenile court is why we

need not terminate Allison’s parental relationship with B.B. Since the inception of

Iowa’s modern child welfare law, our legislature has made clear that proof of abuse

or neglect is not the end of the analysis in a termination-of-parental-rights case. A

court may preserve the family when a parent shows by clear and convincing

evidence that termination would be detrimental to the child—at the time—because

of the closeness of their bond. See Iowa Code § 232.116(3)(c) (2022);

§ 232.114(6)(c) (1979). Because Allison met that burden, I respectfully dissent.

In deciding termination appeals, we must remember that “the relationship

between parent and child is constitutionally protected.” In re M.S., 889 N.W.2d

675, 678 (Iowa Ct. App. 2016) (quoting Quilloin v. Walcott, 434 U.S. 246, 255

(1978)). “[T]he custody, care and nurture of the child reside first in the parents.”

Prince v. Massachusetts, 321 U.S. 158, 166 (1944). “But the family itself is not

beyond regulation in the public interest.” Id. Our state “has a duty to assure that

every child within its borders receives proper care and treatment, and must

intercede when parents fail to provide it.” In re A.M., 856 N.W.2d 365, 376 (Iowa

2014). “Iowa Code chapter 232 codifies the balance our legislature has struck

between these competing interests.” M.S., 889 N.W.2d at 678.

Allison’s petition on appeal follows the traditional three-step analysis for

termination-of-parental-rights cases. See In re P.L., 778 N.W.2d 33, 39 (Iowa

2010). First, in her view, the State did not offer clear and convincing evidence of

a ground for termination under Iowa Code section 232.116(1). Second, she 14

argues termination is not in B.B.’s best interests. And third, she contends that

severing her parental rights would harm B.B. because of the closeness of the

parent-child relationship. See Iowa Code § 232.116(3)(c); In re A.H., 950 N.W.2d

27, 42 (Iowa Ct. App. 2020) (explaining that parents bear the burden to prove that

a permissive exception applies to prevent termination).

These three separate arguments require three distinct analyses. And I

agree with the majority’s resolution of Allison’s first two arguments. But I disagree

on the third step. Allison offered clear and convincing evidence that termination

would harm B.B. because of the closeness of their relationship. See Iowa Code

§ 232.116(3)(c). That close-relationship exception dates back to the adoption of

our modern termination law. 1978 Iowa Acts ch. 1088, § 65. Given its primordial

nature, we can better understand its effect on today’s proceedings by tracing the

history and text.

I. History and Text of the Close-Relationship Exception

Iowa Code chapter 600A used to be the exclusive method for terminating

parental rights. Iowa Code § 600A.3 (1977). It contained seven grounds for

termination. Id. § 600A.8. But no permissive exceptions comparable to those now

in section 232.116(3). After deciding that statutory grounds were met, courts still

had to “determine that the termination would benefit the children.” See In re B.L.A.,

357 N.W.2d 20, 23 (Iowa 1984) (applying section 600A.1 which described the

“welfare of the child” as the “paramount consideration in interpreting this 15

chapter”).10 Problem was, the statute provided no guidance on what factors to

weigh in deciding what was in a child’s best interest.

Before the legislature revised our juvenile justice statutes, a leading scholar

voiced concerns about existing state standards for terminating parental rights—

including Iowa’s regime. Michael S. Wald, State Intervention on Behalf of

“Neglected” Children: Standards for Removal of Children from Their Homes,

Monitoring the Status of Children in Foster Care, and Termination of Parental

Rights, 28 Stan. L. Rev. 623, 689 n.261 (1976) [hereinafter Wald] (asserting that

“courts have ordered termination in cases where preservation of the family was

both possible and warranted” and citing Iowa as example). To address those

concerns, Professor Wald proposed exceptions to bypass termination in certain

situations. Wald, at 706; see P.L., 778 N.W.2d at 36 (referring to Wald’s proposals

as “the Model Child Placement Code”).

Professor Wald identified four situations when an exception to termination

should apply. Wald, at 696. The first situation was when “[t]ermination would be

seriously detrimental to the child due to the strength of the parent-child

relationship.” Id. at 696.11 Wald noted that “some children in foster care retain

very strong ties to their natural parents” to the point that “they refuse to accept

anyone in place of their own parents.” Id. at 696−97. In his view, “termination in

such situations is likely to be harmful to the child.” Id. at 697.

10 This section also stated that “the interests of the parents of this child . . . shall be given due consideration in this interpretation.” Id. § 600A.1. 11 The other three situations included (2) children placed with relatives who are

willing to provide permanent care but do not wish to adopt; (3) children who need special treatment; and (4) permanent family placement is unavailable or undesirable. Id. at 696–99. 16

Two years after Professor Wald’s article, our legislature adopted a new

framework for terminating parental rights for children in need of assistance under

Iowa Code chapter 232. 1978 Iowa Acts ch. 1088 §§ 60–67 (codified as amended

at Iowa Code § 232.109–.120). This statutory scheme tracked Professor Wald’s

model child placement code. P.L., 778 N.W.2d at 36. Chapter 232 then contained

five grounds for termination. See § 232.114(1)–(5) (1979). And courts continued

to apply a best-interests analysis. See In re Dameron, 306 N.W.2d 743, 747 (Iowa

1981). But the statute also contained five new exceptions. Iowa Code

§ 232.114(6)(a)–(e). These exceptions also followed Wald’s model—including an

exception to termination when it would harm the child. Compare Wald at 706; with

§ 232.114(6)(c) (1979).

Despite amendments to the statute since its adoption, the language of the

close-relationship exception remains true to its original form:

Model Child Placement Code Iowa Code Section Iowa Code Section (1976) 232.114(6)(c) (1979) 232.116(3)(c) (2021)

[A] court should not order [T]he court need not terminate the The court need not terminate the termination if it finds by clear and relationship between parents and relationship between the parent and convincing evidence that any of child if the court finds: child if the court finds any of the the following are applicable: ... following: (a) Because of the closeness of c. There is clear and convincing ... the parent-child relationship, it evidence that such termination c. There is clear and convincing would be seriously detrimental to would be detrimental to the child at evidence that the termination would the child to terminate parental the time due to the closeness of be detrimental to the child at the time rights at this time. the parent-child relationship[.] due to the closeness of the parent- child relationship[.] 17

But our legislature did make two key changes to the model language. First,

the statute substitutes the phrase “need not” for “should not.” Iowa Code

§ 232.116(3)(c) (2021).12 Second, the legislature changed “seriously detrimental”

to “detrimental.”13 Id. These changes offset one another—a lesser burden of harm

but permissive application of the exception. This framework supports the statute’s

aim to balance the State’s duty to protect children against the constitutionally

protected parent-child relationship. See M.S., 889 N.W.2d at 678.

II. Application of Exception to B.B. and Allison

With the history and text of the close-relationship exception in mind, I turn

to its application here. Allison must show by clear and convincing evidence that

the termination of her parental rights would harm B.B. at the time because of their

close bond. Iowa Code § 232.116(3)(c). If she makes that showing, then we must

decide whether the exception should preclude termination. In re C.A., No. 13-

1987, 2014 WL 1234470, at *3 (Iowa Ct. App. Mar. 26, 2014) (noting court has

discretion to terminate even when parent proves an exception).

12 We’ve interpreted this language to mean that the exceptions are permissive, not mandatory. In re J.V., 464 N.W.2d 887, 890 (Iowa Ct. App. 1990), abrogated on other grounds by P.L., 778 N.W.2d at 39. 13 The code does not define “detrimental.” The dictionary defines it as “causing

damage or harm; injurious.” Detrimental, American Heritage Dictionary (2d ed. 1985). And our case law has used harm and detriment interchangeably. See In re M.W., No. 08–0784, 2008 WL 2522001, at *1 (Iowa Ct. App. 2008) (“[T]he juvenile court need not terminate the parental relationship if, based on the closeness of the parent-child bond, termination would be harmful to the child.”); See also In re J.J., No. 22-0046, 2022 WL 951030, at *4 (Iowa Ct. App. Mar. 30, 2022); In re M.C., No. 17-1184, 2017 WL 4315079, at *4 (Iowa Ct. App. Sept. 27, 2017). 18

A. Did Allison carry her burden?

Two questions drive the analysis. How close was their bond? And will the

child be harmed by severing that bond? In describing situations when termination

would be “seriously detrimental” to children, Professor Wald gave examples of

children who ran away from their foster care to return home or had to be “moved

from foster home to foster home” because they rejected anyone other than their

parental figures. Wald, at 696−97. He also focused on children’s opinions: “If a

child aged 10 or older objects to termination, her objection should be decisive.” Id.

at 697.14 In his view, even a younger child’s wishes “as expressed in interviews

with well-trained mental health professionals, should be given great weight in

determining whether termination is detrimental.” Id.

These examples illustrate how the risk of “serious” harm from termination

of a close parental bond can manifest in a child. But our statute does not require

that the severance be “seriously detrimental” only “detrimental.” And our case law

recognizes that the risk of losing a close bond, even without outward

manifestations of the harm, may meet the burden under section 232.116(3)(c). 15

See, e.g., M.S., 889 N.W.2d at 684 (applying close-relationship exception when

father had a “strong bond” with the child, and provided “excellent and loving care

14 Our legislature adopted this example as a separate permissive exception. See Iowa Code § 232.116(3)(b) (stating a court need not terminate if “the child is over ten years of age and objects to the termination”). 15 Indeed, as one scholar has observed, “there is no question that when a parent’s

rights are terminated, it is not only the parent who loses something. The child loses his legal relationship with his parents, extended family members, and potentially his siblings.” Brent Pattison, When Children Object: Amplifying an Older Child’s Objection to Termination of Parental Rights, 49 U. Mich. J.L. Reform 689, 701 (2016). 19

for the child” during visitation); In re D.G., No. 18-1480, 2019 WL 1294228, at *3

(Iowa Ct. App. Mar. 20, 2019) (reversing termination of mother’s parental rights

because she “participated in visits and actively engaged with all” of her children);

In re L.C., No. 14-2034, 2015 WL 576569, at *5 (Iowa Ct. App. Feb. 11, 2015)

(finding that father met burden by being “vigilant in visiting his daughter” and

creating a “special attachment” despite not living in same household since she was

an infant); In re J.C., No. 11–1936, 2012 WL 469807, at *4 (Iowa Ct. App. Feb. 15,

2012) (finding mother met exception by displaying “extraordinary potential to be a

successful parent” in visitation with her son and the two possessed an “unusually

close relationship”).

Granted, our supreme court has said that the mere “existence of a bond is

not enough” to stave off termination. See In re A.B., 956 N.W.2d 162, 169 (Iowa

2021); see also In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (declining to apply

close-relationship exception when mother had “some bond” with her two- and

three-year-old children, but their visits had not progressed and had become

“overwhelming” for the mother).

But here, as the majority concedes, the closeness of the parent-child

relationship is “uncontested.” To the person, everyone involved recognized B.B.’s

tight bond with Allison. The department’s social work supervisor testified to that

fact. The Court Appointed Special Advocate (CASA) report reflected Allison’s keen

attention to B.B.’s emotional well-being.16 B.B.’s therapist also described the

“warm and reciprocal relationship” she observed between mother and son: “Allison

16At the end of the trial, the CASA volunteer told the court “I’m just as conflicted as everybody else with mom and [B.B.] being so bonded. It’s a tough one.” 20

has exhibited attuned, nurturing, and responsive behavior with [B.B.].” B.B.

repeatedly expressed to his foster mother that he “misses his mom” between visits.

Both Allison and her friend Bradley testified to the closeness of the mother-son

connection. And the juvenile court commented on the loving relationship between

B.B. and Allison.

So the fighting question is: did Allison prove termination would harm B.B.

because of their undeniably close relationship? As the juvenile court noted, B.B.

is “sad to leave visits” and “looks forward to time” with his mother. But the majority

downplays “any short-term sadness that B.B. may experience” as less weighty

than the “likely long-term hardship” B.B. would suffer because of Allison’s inability

to meet his needs.

I disagree with the majority’s finding for both legal and factual reasons.

Legal first. The majority overlooks the phrase “at the time” in the provision. See

Iowa Code § 232.116(3)(c). We must assess whether termination would be

detrimental to the child “at the time” of the hearing. Cf. In re L.M., 904 N.W.2d 835,

839 (Iowa 2017) (interpreting “at the present time” in section 232.116(1)(h)(4) as

the time of the termination hearing). True, the best-interests test in section

232.116(2) mentions the “long-term” nurturing and growth of the child. But that

best-interests test is distinct. As P.L. explained, after deciding that termination is

in the child’s best interests under section 232.116(2), the court still must consider

if any exceptions in section 232.116(3) “allow the court not to terminate.” 778

N.W.2d at 39. “As a general rule of statutory construction, we avoid an

interpretation or application of a statute that renders other portions of the statute

superfluous or meaningless.” Little v. Davis, 974 N.W.2d 70, 75 (Iowa 2022). So 21

even though the State proved termination was in B.B.’s best interests, we must

separately decide whether Allison proved that termination would be detrimental to

B.B. at the time of the hearing.

Which brings me to the factual weakness in the majority’s analysis. The

record does not support the idea that B.B. will experience only “short-term

sadness” from losing his relationship with Allison. Both Allison and B.B. foster

mother noticed that his behavioral progress ebbed when the department cut back

his mother’s visitation because of her positive drug test. The foster mother said

B.B. talked more about “his mom” and began to exhibit the same troubling

behaviors as when he was first placed in her care. These behaviors worsened to

the point where she considered increasing his therapy. Allison also noticed this

regression during visits, testifying that the five-year-old grew less confident and

acted more like a toddler needing comfort.

Nothing in the record suggests that B.B.’s trauma was transient. For

parents, we have accepted the logic that their past conduct conveys their future

care-giving abilities. See In re A.B., 815 N.W.2d 764, 778 (Iowa 2012). So why

would we downplay B.B.’s present distress when deciding whether termination

would be detrimental? B.B.’s regression when afforded less time with his mother

is strong evidence that he will be harmed by losing that close bond.

Another aspect of Allison’s clear-and-convincing proof was B.B.’s objection

to termination, as expressed to his GAL.17 Even at his young age, his wishes

17Because he was only five years old, the GAL did not believe that B.B. needed a separate attorney, but the GAL noted that she considered his wishes in expressing what she believed was in his best interests. 22

signal the likelihood that he will suffer harm from the termination. See Wald, at

697. Finally, B.B.’s therapist confirmed that “terminating the mother’s rights would

be a difficult loss” for him.

But in rejecting the close-relationship exception, the majority lifts up other

testimony from B.B.’s therapist that his foster home is safe and supportive, and her

view that separation from that placement would be “devastating” to him. But unlike

section 232.116(2)(b), the close-relationship exception does not mention the

child’s integration into a foster home.18 And we are “not free to take children from

parents simply by deciding another home offers more advantages.” In re Burney,

259 N.W.2d 322, 324 (Iowa 1977).

In sum, the closeness of the parent-child relationship is without dispute.

And the present detriment from terminating that relationship is evident from B.B.’s

behavior. All told, Allison’s evidence leaves “no serious or substantial doubt” that

her son would be harmed by the termination. See M.S., 889 N.W.2d at 679.

B. Should this permissive exception preserve their bond?

Finding Allison has met her burden, the next question is whether this

permissive exception should preclude termination. See J.V., 464 N.W.2d at 890.

Courts exercise their discretion based on “the unique circumstances of each case

and the best interests of the child.” M.W., 876 N.W.2d at 225 (citations omitted).

In the context of the close-relationship exception, we have described this step as

18I agree with the majority that B.B. has a strong relationship with his foster family. But despite his integration into their home, he still looks to Allison as his main parental figure. Cf. Wald, at 696−97 (citing example of child rejecting other parental figures as sign that termination will be seriously detrimental). 23

deciding “whether termination achieves justice.” M.S., 889 N.W.2d at 684. For

B.B. and Allison, it doesn’t.

The juvenile court chose not to use this permissive exception to save the

parent-child relationship because of B.B.’s “young age, the length of time he has

been out of home, his strong relationship with his foster family, his therapist’s input,

and his need for permanency.” As its bottom line, the court found termination was

“in the child’s best interests.” The majority takes a similar path.

They are not wrong about B.B.’s best interests—at least under the

framework in section 232.116(2). But the permissive aspect of

section 232.116(3)(c) cannot mean wholesale importation of section 232.116(2)’s

best-interest structure as the basis for rejecting the permissive exception.

Otherwise, P.L.’s three-step test is always a two-step test.

What’s important when deciding whether the permissive exception should

save the parent-child relationship is the “unique circumstances” of the case and

how those affect the welfare of the child. As the juvenile court said at trial, this

case has unique factors. For example, in most cases “where parents are in the

throes” of methamphetamine use, “they’re not showing up to their kids’ therapy

sessions.” But Allison did. And Allison went above and beyond to provide special

experiences for B.B. during their visitation. She made him pancakes in the shape

of the letter B, saved cardboard boxes to paint as a craft project, and decorated

his bedroom and his birthday cake with Sonic the Hedgehog—his favorite cartoon

character.

The close-relationship exception should preclude termination when a parent

shows “extraordinary potential” to be successful and maintains a close bond with 24

their child. See, e.g., J.C., 2012 WL 469807, at *3−4 (declining to termination

when mother had “exemplary interactions” with her eight-year-old son and “did

everything she could to keep the visits positive”). In J.C., the mother was also

pursuing further education, lived in a safe home, and was developing a healthy

support system. Id. Based on those circumstances, we preserved the parent-child

relationship despite the mother’s failure to “embrace her drug-free lifestyle until the

eleventh hour.” Id.

Allison displays that potential in spades. She relishes visits with B.B. and

stayed engaged even after the State filed its termination petition. The service

providers note her positive parenting skills. In fact, B.B’s therapist recommended

expanded visitation. Allison also earned an income through odd jobs, such as

cleaning houses and baking cupcakes to sell to restaurants. And she enrolled in

business classes at Des Moines Area Community College with entrepreneurial

aspirations. She has stable housing and a support system in her friend Bradley.

She also attends her own mental-health therapy on top of B.B.’s sessions. Her

therapist drafted a letter noting her success in their treatment goals:

[Allison] continues to demonstrate the ability to use coping skills on a regular basis, demonstrates increased levels of self-awareness, is able to receive feedback, has displayed an increased understanding of what her child’s needs are, and how to better meet those needs. [Allison] is able to take accountability for her decisions.

True, Allison’s acknowledgment of her drug problem came late in the case.

But we’ve applied the close-relationship exception to parents with extraordinary

potential even when their efforts to address addiction came “at the eleventh hour.” 25

See L.C., 2015 WL 576569, at *5. Allison’s “level of competency as a mother

stands out as a rare commodity in our parental termination jurisprudence” and

merits protection today. See J.C., 2012 WL 469807, at *3.

Still, the majority laments Allison’s “inability to provide for the child’s ongoing

needs” because of her substance abuse. I can’t fault the majority or the juvenile

court for their concerns that Allison tested positive for methamphetamine. But

Allison’s need to address her addiction does not mean we should discard the

parent-child relationship. Recall that the juvenile court declined to terminate under

section 232.116(1)(l), finding no evidence of current peril from her drug use beyond

the “general danger presented by parenting with unresolved substance abuse.”

Indeed, nothing in this record shows Allison’s substance abuse affected her

interactions with B.B. See In re A.B., 957 N.W.2d 280, 297–98 (Iowa 2021)

(reversing termination of mother’s rights when there was no sign that her cocaine,

marijuana, and alcohol use “interfered with her ability to parent safely”); M.S., 889

N.W.2d at 682 (noting that termination based on substance abuse requires nexus

between that abuse and adjudicatory harm). Neither service providers, nor B.B.’s

therapist, nor her friend Bradley ever saw Allison under the influence while

interacting with her son several times a week. That’s not to say I take lightly

Allison’s avoidance of drug screens or her positive tests just before the termination

hearing. But her status as a methamphetamine addict—standing alone—does not

mean that she cannot parent B.B. Cf. In re J.S., 846 N.W.2d 36, 42 (Iowa 2014)

(analyzing methamphetamine addiction as grounds for CINA adjudication and

holding addiction on its own did not mean children were in imminent likelihood of

abuse or neglect). 26

Given these unique circumstances, I would find that severing the strong

bond between B.B. and Allison “fails to achieve justice.” See M.S., 889 N.W.2d at

686. The legislature enacted the close-relationship exception for a reason. L.C.,

2015 WL 576569, at *5. This built-in safety valve allows courts to exercise

discretion to preserve a strong parent-child bond when severing it would harm the

child. I would reverse the termination order and remand for further proceedings.19

19 Finally, saving the relationship under section 232.116(3)(c) is not binding on future termination proceedings where the circumstances, including the closeness of the relationship and the potential harm, will be reassessed. See In re D.G., No. 20-0587, 2020 WL 4499773, *5 (Iowa Ct. App. Aug. 5, 2020) (terminating parental rights because the parents’ relationships with their children had “diminished” to where the “bonds are not what they once were”).