IN THE COURT OF APPEALS OF IOWA
No. 19-1654 Filed April 1, 2020
IN THE INTEREST OF B.S. and E.C., Minor Children,
M.M., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Romonda Belcher,
District Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Teresa M. Pope of Branstad & Olson Law Office, Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, and Gretchen Witte Kraemer, Assistant
Attorney General, for appellee State.
Michael Sorci of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor children.
Considered by Tabor, P.J., and Mullins and Schumacher, JJ. 2
MULLINS, Judge.
A mother appeals the termination of her parental rights to her two children,
born in 2016 and 2017.1 She challenges the sufficiency of the evidence supporting
the statutory grounds for termination cited by the juvenile court, argues termination
is not in the children’s best interests because of the closeness of the parent-child
bond, and maintains she should have been granted additional time to work toward
reunification.
I. Background Facts and Proceedings
This twenty-six-year-old mother has a long history of methamphetamine
use, dating back to when she was thirteen. This family again came to the attention
of the Iowa Department of Human Services (DHS) in July 2018, upon allegations
the mother was using and selling methamphetamine while caring for the children.2
The mother agreed she was selling the substance and tested positive for it. The
children were removed from the mother’s care and placed in foster care, where
they have remained. Both of the children’s fathers were incarcerated at the time
on drug charges. The mother tested positive for methamphetamine shortly before
the adjudication hearing in August. At the adjudication hearing, the mother
reported her intention to engage in substance-abuse treatment. The children were
adjudicated to be in need of assistance.
1 The juvenile court also terminated the parental rights of both children’s fathers. They do not appeal. 2 DHS had prior involvement with the mother and older child beginning in June
2016 as a result of the mother’s methamphetamine use. That child-in-need-of- assistance proceeding closed in January 2018. During the proceedings now before us on appeal, the mother admitted she was still using methamphetamine when the first case closed and prior thereto when she was pregnant with the younger child. 3
In September, the mother reported continuous use of methamphetamine for
the past three or four weeks. She also reported she would not engage in inpatient
treatment. The mother was approved to participate in recovery court, but she failed
to engage in the program. The mother entered residential treatment in December,
but she left after a few weeks, having made little progress. In light of the mother’s
lack of progress, the State moved for a permanency hearing. In April 2019, the
mother underwent a substance-abuse evaluation, during which she admitted
continued use of controlled substances, and she was admitted into inpatient
treatment. Shortly thereafter, the court held a permanency hearing and, at the
conclusion, directed the State to initiate termination proceedings. The mother then
left inpatient treatment and, according to her own testimony, “continued to get high
for a couple weeks” on “Meth and OxyContin.”
The State filed its termination petition in May. In early June, the mother
enrolled in outpatient treatment. The evidentiary portions of the termination
hearing were held over two days in June and August. At the first day of the hearing
in June, the mother reported two or three weeks of sobriety. By the second day of
the hearing in August, she was also receiving mental-health therapy and
medication management. She testified if she was granted an extension, she
planned to begin a year-long program in Nebraska, more than three hours away,
involving substance-abuse and mental-health treatment. The mother
acknowledged in her testimony that she was not a proper placement for the
children both days of the termination hearing. She requested a three-month
extension to work toward reunification the first day of trial and then requested a
six-month extension the second day. By the second day of trial, the mother had 4
not exercised visitation with the children in nearly two months. While the mother
had obtained new employment, it was a position in which she would be required
to travel out of the state for ten days at a time. She had yet to establish stable
housing. The children have been in the same foster care placement since shortly
after removal. The children are integrated into this family, and the foster parents
are willing and able to adopt.
The juvenile court ultimately terminated the mother’s parental rights under
Iowa Code section 232.116(1)(e), (h), and (l) (2019). As noted, the mother
appeals.
II. Standard of Review
We review termination-of-parental-rights proceedings de novo. In re L.T.,
924 N.W.2d 521, 526 (Iowa 2019). Our primary consideration is the best interests
of the children, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the defining elements
of which are the children’s safety and need for a permanent home. In re H.S., 805
N.W.2d 737, 748 (Iowa 2011).
III. Analysis
A. Sufficiency of the Evidence
The mother challenges the sufficiency of the evidence supporting
termination. As noted, the juvenile court terminated the mother’s rights under Iowa
Code section 232.116(1)(e), (h), and (l). The mother only challenges termination
under section 232.116(1)(h). While we could affirm the termination decision on the
unchallenged grounds, we elect to address the challenged ground. See In re S.R.,
600 N.W.2d 63, 64 (Iowa Ct. App. 1999). 5
As to termination under section 232.116(1)(h), the mother only challenges
the State’s establishment of the final element of that provision—that the children
could not be returned to her care at the time of the termination hearing. See Iowa
Code § 232.116(1)(h)(4) (requiring clear and convincing evidence that the children
cannot be returned to the custody of the children’s parents at the present time); In
re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the statutory language “at
the present time” to mean “at the time of the termination hearing”).
The mother agreed in her testimony both days of the termination hearing
the children could not yet be placed in her care. We agree. The mother was not
in a position with her sobriety and mental health to resume care of the children.
We conclude the State met its burden for termination under section 232.116(1)(h).
B. Best Interests and Statutory Exception
The mother argues termination is contrary to the best interests of the
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IN THE COURT OF APPEALS OF IOWA
No. 19-1654 Filed April 1, 2020
IN THE INTEREST OF B.S. and E.C., Minor Children,
M.M., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Romonda Belcher,
District Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Teresa M. Pope of Branstad & Olson Law Office, Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, and Gretchen Witte Kraemer, Assistant
Attorney General, for appellee State.
Michael Sorci of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor children.
Considered by Tabor, P.J., and Mullins and Schumacher, JJ. 2
MULLINS, Judge.
A mother appeals the termination of her parental rights to her two children,
born in 2016 and 2017.1 She challenges the sufficiency of the evidence supporting
the statutory grounds for termination cited by the juvenile court, argues termination
is not in the children’s best interests because of the closeness of the parent-child
bond, and maintains she should have been granted additional time to work toward
reunification.
I. Background Facts and Proceedings
This twenty-six-year-old mother has a long history of methamphetamine
use, dating back to when she was thirteen. This family again came to the attention
of the Iowa Department of Human Services (DHS) in July 2018, upon allegations
the mother was using and selling methamphetamine while caring for the children.2
The mother agreed she was selling the substance and tested positive for it. The
children were removed from the mother’s care and placed in foster care, where
they have remained. Both of the children’s fathers were incarcerated at the time
on drug charges. The mother tested positive for methamphetamine shortly before
the adjudication hearing in August. At the adjudication hearing, the mother
reported her intention to engage in substance-abuse treatment. The children were
adjudicated to be in need of assistance.
1 The juvenile court also terminated the parental rights of both children’s fathers. They do not appeal. 2 DHS had prior involvement with the mother and older child beginning in June
2016 as a result of the mother’s methamphetamine use. That child-in-need-of- assistance proceeding closed in January 2018. During the proceedings now before us on appeal, the mother admitted she was still using methamphetamine when the first case closed and prior thereto when she was pregnant with the younger child. 3
In September, the mother reported continuous use of methamphetamine for
the past three or four weeks. She also reported she would not engage in inpatient
treatment. The mother was approved to participate in recovery court, but she failed
to engage in the program. The mother entered residential treatment in December,
but she left after a few weeks, having made little progress. In light of the mother’s
lack of progress, the State moved for a permanency hearing. In April 2019, the
mother underwent a substance-abuse evaluation, during which she admitted
continued use of controlled substances, and she was admitted into inpatient
treatment. Shortly thereafter, the court held a permanency hearing and, at the
conclusion, directed the State to initiate termination proceedings. The mother then
left inpatient treatment and, according to her own testimony, “continued to get high
for a couple weeks” on “Meth and OxyContin.”
The State filed its termination petition in May. In early June, the mother
enrolled in outpatient treatment. The evidentiary portions of the termination
hearing were held over two days in June and August. At the first day of the hearing
in June, the mother reported two or three weeks of sobriety. By the second day of
the hearing in August, she was also receiving mental-health therapy and
medication management. She testified if she was granted an extension, she
planned to begin a year-long program in Nebraska, more than three hours away,
involving substance-abuse and mental-health treatment. The mother
acknowledged in her testimony that she was not a proper placement for the
children both days of the termination hearing. She requested a three-month
extension to work toward reunification the first day of trial and then requested a
six-month extension the second day. By the second day of trial, the mother had 4
not exercised visitation with the children in nearly two months. While the mother
had obtained new employment, it was a position in which she would be required
to travel out of the state for ten days at a time. She had yet to establish stable
housing. The children have been in the same foster care placement since shortly
after removal. The children are integrated into this family, and the foster parents
are willing and able to adopt.
The juvenile court ultimately terminated the mother’s parental rights under
Iowa Code section 232.116(1)(e), (h), and (l) (2019). As noted, the mother
appeals.
II. Standard of Review
We review termination-of-parental-rights proceedings de novo. In re L.T.,
924 N.W.2d 521, 526 (Iowa 2019). Our primary consideration is the best interests
of the children, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the defining elements
of which are the children’s safety and need for a permanent home. In re H.S., 805
N.W.2d 737, 748 (Iowa 2011).
III. Analysis
A. Sufficiency of the Evidence
The mother challenges the sufficiency of the evidence supporting
termination. As noted, the juvenile court terminated the mother’s rights under Iowa
Code section 232.116(1)(e), (h), and (l). The mother only challenges termination
under section 232.116(1)(h). While we could affirm the termination decision on the
unchallenged grounds, we elect to address the challenged ground. See In re S.R.,
600 N.W.2d 63, 64 (Iowa Ct. App. 1999). 5
As to termination under section 232.116(1)(h), the mother only challenges
the State’s establishment of the final element of that provision—that the children
could not be returned to her care at the time of the termination hearing. See Iowa
Code § 232.116(1)(h)(4) (requiring clear and convincing evidence that the children
cannot be returned to the custody of the children’s parents at the present time); In
re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the statutory language “at
the present time” to mean “at the time of the termination hearing”).
The mother agreed in her testimony both days of the termination hearing
the children could not yet be placed in her care. We agree. The mother was not
in a position with her sobriety and mental health to resume care of the children.
We conclude the State met its burden for termination under section 232.116(1)(h).
B. Best Interests and Statutory Exception
The mother argues termination is contrary to the best interests of the
children, see Iowa Code § 232.116(2), due to the closeness of the parent-child
bond. See id. § 232.116(3)(c). We choose to separately address the best-
interests and statutory-exception issues. See In re A.S., 906 N.W.2d 467, 472–73
(Iowa 2019) (discussing three-step termination framework).
In determining whether termination is in the best interests of a child, 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).
The mother has simply not progressed to a point at which her children can be
returned to her care. She has been struggling with her addiction for several years.
The mother waited until the eve of termination to begin taking any steps to address 6
her substance-abuse and mental-health issues, which is too late. See In re C.B.,
611 N.W.2d 489, 495 (Iowa 2000). “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 . . . be able to provide a stable
home for the child.” In re A.B., 815 N.W.2d 764, 777 (Iowa 2012) (quoting In re
P.L., 778 N.W.2d 33, 39 (Iowa 2010)). We conclude the mother has been given
ample time to get her affairs in order and the children’s best interests are best
served by providing permanency and stability now. See id. 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))). The children are in a foster placement that is willing to
adopt. The children are integrated into this familial setting. Continued stability and
permanency in this home, which the mother has been unable to provide, are in the
children’s best interests. See Iowa Code § 232.116(2)(b); cf. In re M.W., 876
N.W.2d 212, 224–25 (2016) (concluding termination was in best interests of
children where children were well-adjusted to placement, the placement parents
were “able to provide for their physical, emotional, and financial needs,” and they
were prepared to adopt the children).
As to the mother’s request for application of the statutory exception to
termination contained in section 232.116(3)(c), we first note the application of the
statutory exceptions to termination is “permissive, not mandatory.” M.W., 876
N.W.2d at 225 (quoting In re A.M., 843 N.W.2d 100, 113 (Iowa 2014)). Iowa Code
section 232.116(3)(c) allows the juvenile court to decline to terminate parental
rights when “[t]here is clear and convincing evidence that the termination would be 7
detrimental to the child at the time due to the closeness of the parent-child
relationship.” While we acknowledge a bond between the mother and children,
that bond can only be characterized as limited at best given these children’s young
age and the mother’s long-term physical absence from their short lives. Upon our
review, we find the evidence insufficient to show “termination would be detrimental
to the child[ren] . . . due to the closeness of the parent-child relationship.” See
A.S., 906 N.W.2d at 476 (noting parent bears burden to establish exception to
termination). We therefore decline to apply the statutory exception to termination.
C. Extension
The mother argues the court erred in denying her request for a six-month
extension to work toward reunification. She maintains she could be in a position
to resume care of the children within that time frame. If, following a termination
hearing, the court does not terminate parental rights but finds there is clear and
convincing evidence that the child is a child in need of assistance, the court may
enter an order in accordance with section 232.104(2)(b). Iowa Code § 232.117(5).
Section 232.104(2)(b) affords the juvenile court the option to continue placement
of a child for an additional six months if the court finds “the need for removal . . .
will no longer exist at the end of the additional six-month period.”
While the mother began outpatient treatment shortly before the first day of
the termination hearing, given her track record, she has a long way to go before
these children can be returned to her care. She has a long history of use of
methamphetamine and other drugs, which has been fraught with relapse.
Following her substance-abuse evaluation, it was recommended that she engage
in intensive inpatient treatment, not outpatient treatment. She left inpatient 8
treatment twice during these proceedings, having made little to no progress. The
mother would need to reengage in visitation with the children, which she had not
been doing for two months prior to the second day of the termination hearing. She
would then need to progress well beyond unsupervised visitation before the
children could be placed in her care. The mother simply waited too long. Given
the mother’s history, she would be required to fully engage in services for an
extended period of time before the children could be returned to her care, certainly
longer than six months. We are unable to conclude “the need for removal . . . will
no longer exist at the end of the additional six-month period,” and we therefore
affirm the juvenile court’s denial of the mother’s request for an extension. Id.
§ 232.104(2)(b).
IV. Conclusion
We affirm the termination of the mother’s parental rights to her children.
AFFIRMED.