IN THE COURT OF APPEALS OF IOWA
No. 19-0990 Filed September 11, 2019
IN THE INTEREST OF C.M. and D.M., Minor Children,
D.W., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Deborah Farmer
Minot, District Associate Judge.
A mother appeals the termination of her parental rights to her two children.
AFFIRMED.
Joseph C. Pavelich of Spies, Pavelich & Foley, Iowa City, for appellant
mother.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
John D. Jacobsen, Cedar Rapids, attorney and guardian ad litem for minor
children.
Considered by Tabor, P.J., and Mullins and May, JJ. 2
MAY, Judge.
The juvenile court terminated a mother’s parental rights to her children, C.M.
and D.M. On appeal, the mother argues (1) the State failed to prove grounds for
termination exist under Iowa Code section 232.116(1)(h) (2019) and (2) the
mother’s strong bond with the children precludes termination. We affirm the
juvenile court.
I. Background Facts and Proceedings
C.M. was born in 2016. In September 2017, the Iowa Department of Human
Services (DHS) first became involved with C.M.’s family. At that time, the father
was on probation for multiple burglaries. During a home visit, probation officers
discovered cocaine and marijuana. The mother claimed the drugs were hers. Both
parents were arrested. DHS removed C.M. from the parents’ custody. Later, the
mother renounced ownership of the drugs. Even so, she pled guilty to multiple
charges, including possession of cocaine with intent to deliver. She received a
deferred judgment and probation.
In the months that followed, the mother complied with some services. In
late December, the juvenile court returned C.M. to the mother’s custody. The court
ordered the father’s visits be fully supervised. The mother was expressly “not
authorized” to supervise contact between the father and C.M.
In March 2018, D.M. was born. In July, both parents ceased contact with
providers and missed a scheduled hearing. Moreover, DHS learned that—despite
the juvenile court’s December order—the mother and children were residing with
the father. DHS removed the children. A sample of C.M.’s hair came back positive 3
for methamphetamine, cocaine, and marijuana. D.M. did not have enough hair to
test.
Following the children’s removal in July, the mother failed to keep consistent
contact with DHS, ceased drug testing, missed visits, and failed to progress from
fully-supervised visits. She was also arrested for operating while intoxicated.
The State petitioned for termination as to both parents. The juvenile court
heard evidence on April 3 and 29, 2019. The juvenile court terminated both
parents’ rights to the children. The mother appeals.1
II. Standard of Review
We review termination proceedings de novo. In re P.L., 778 N.W.2d 33, 40
(Iowa 2010). “We will uphold an order terminating parental rights where there is
clear and convincing evidence of the statutory grounds for termination. Evidence
is clear and convincing when there is no serious or substantial doubt as to the
correctness of the conclusions of law drawn from the evidence.” In re T.S., No.
14-1517, 2015 WL 791698, at *3 (Iowa Ct. App. Feb. 25, 2015) (citing In re D.W.,
791 N.W.2d 703, 706 (Iowa 2010)).
III. Analysis
We generally use a three-step analysis to review the termination of a
parent’s rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). First, we must
determine whether a ground for termination under section 232.116(1) has been
established. Id. at 472–73. If a ground for termination has been established, we
must then consider “whether the best-interest framework as laid out in section
1 The father did not appeal. This opinion will only address the mother’s arguments. 4
232.116(2) supports the termination of parental rights.” Id. at 473. Finally, we
must consider “whether any exceptions in section 232.116(3) apply to preclude
termination of parental rights.” Id. (quoting In re M.W., 876 N.W.2d 212, 220 (Iowa
2016)).
A. Grounds for Termination
We first determine whether the State has proved grounds for termination
under Iowa Code section 232.116(1). Id. at 472–73. The juvenile court found
grounds for termination under Iowa Code section 232.116(1)(h) were established
for both children. Section 232.116(1)(h) authorizes termination when:
(1) The child is three years of age or younger. (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 six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time.
On appeal, the mother only challenges the fourth element.2 She argues the
children could have been returned to her at the time of the termination hearing.
2 As noted, the State is required to prove statutory grounds for termination by clear and convincing evidence. In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct. App. 1997). In this case, the State was required to prove the four elements under Iowa Code section 232.116(1)(h), which the juvenile court determined it did. The mother argues the State did not meet the burden because the State “failed to prove by clear and convincing evidence that the children could not be returned to her care following the termination trial or within an additional six months.” (Emphasis added.) But Iowa Code section 232.116(1)(h) only requires the State to show the children could not be returned at the time of the termination hearing. It is true that, pursuant to Iowa Code section 232.104(2)(b), the juvenile court may defer termination if it determines the need for removal will extinguish following an additional six-month period. At the hearing, though, the mother insisted the children could be returned to her immediately. While she mentioned her situation may improve in three to four months, she did not directly ask the juvenile court to grant her additional time. Nor 5
We disagree. At the termination hearing, the mother acknowledged she did
not have her own housing, could not afford to live on her own, and was jobless.
She suffers from severe, untreated mental-health problems. She has failed to
consistently drug test. She has missed many visits with the children. And she
never progressed beyond fully-supervised visitation. We agree with the juvenile
court that the children could not be returned to her at the time of the termination
hearing. The requirements of section 232.116(1)(h) are fulfilled.
B. Best Interests
Our next step is to consider the best interests of the children. See Iowa
Code § 232.116(2).
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IN THE COURT OF APPEALS OF IOWA
No. 19-0990 Filed September 11, 2019
IN THE INTEREST OF C.M. and D.M., Minor Children,
D.W., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Deborah Farmer
Minot, District Associate Judge.
A mother appeals the termination of her parental rights to her two children.
AFFIRMED.
Joseph C. Pavelich of Spies, Pavelich & Foley, Iowa City, for appellant
mother.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
John D. Jacobsen, Cedar Rapids, attorney and guardian ad litem for minor
children.
Considered by Tabor, P.J., and Mullins and May, JJ. 2
MAY, Judge.
The juvenile court terminated a mother’s parental rights to her children, C.M.
and D.M. On appeal, the mother argues (1) the State failed to prove grounds for
termination exist under Iowa Code section 232.116(1)(h) (2019) and (2) the
mother’s strong bond with the children precludes termination. We affirm the
juvenile court.
I. Background Facts and Proceedings
C.M. was born in 2016. In September 2017, the Iowa Department of Human
Services (DHS) first became involved with C.M.’s family. At that time, the father
was on probation for multiple burglaries. During a home visit, probation officers
discovered cocaine and marijuana. The mother claimed the drugs were hers. Both
parents were arrested. DHS removed C.M. from the parents’ custody. Later, the
mother renounced ownership of the drugs. Even so, she pled guilty to multiple
charges, including possession of cocaine with intent to deliver. She received a
deferred judgment and probation.
In the months that followed, the mother complied with some services. In
late December, the juvenile court returned C.M. to the mother’s custody. The court
ordered the father’s visits be fully supervised. The mother was expressly “not
authorized” to supervise contact between the father and C.M.
In March 2018, D.M. was born. In July, both parents ceased contact with
providers and missed a scheduled hearing. Moreover, DHS learned that—despite
the juvenile court’s December order—the mother and children were residing with
the father. DHS removed the children. A sample of C.M.’s hair came back positive 3
for methamphetamine, cocaine, and marijuana. D.M. did not have enough hair to
test.
Following the children’s removal in July, the mother failed to keep consistent
contact with DHS, ceased drug testing, missed visits, and failed to progress from
fully-supervised visits. She was also arrested for operating while intoxicated.
The State petitioned for termination as to both parents. The juvenile court
heard evidence on April 3 and 29, 2019. The juvenile court terminated both
parents’ rights to the children. The mother appeals.1
II. Standard of Review
We review termination proceedings de novo. In re P.L., 778 N.W.2d 33, 40
(Iowa 2010). “We will uphold an order terminating parental rights where there is
clear and convincing evidence of the statutory grounds for termination. Evidence
is clear and convincing when there is no serious or substantial doubt as to the
correctness of the conclusions of law drawn from the evidence.” In re T.S., No.
14-1517, 2015 WL 791698, at *3 (Iowa Ct. App. Feb. 25, 2015) (citing In re D.W.,
791 N.W.2d 703, 706 (Iowa 2010)).
III. Analysis
We generally use a three-step analysis to review the termination of a
parent’s rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). First, we must
determine whether a ground for termination under section 232.116(1) has been
established. Id. at 472–73. If a ground for termination has been established, we
must then consider “whether the best-interest framework as laid out in section
1 The father did not appeal. This opinion will only address the mother’s arguments. 4
232.116(2) supports the termination of parental rights.” Id. at 473. Finally, we
must consider “whether any exceptions in section 232.116(3) apply to preclude
termination of parental rights.” Id. (quoting In re M.W., 876 N.W.2d 212, 220 (Iowa
2016)).
A. Grounds for Termination
We first determine whether the State has proved grounds for termination
under Iowa Code section 232.116(1). Id. at 472–73. The juvenile court found
grounds for termination under Iowa Code section 232.116(1)(h) were established
for both children. Section 232.116(1)(h) authorizes termination when:
(1) The child is three years of age or younger. (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 six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time.
On appeal, the mother only challenges the fourth element.2 She argues the
children could have been returned to her at the time of the termination hearing.
2 As noted, the State is required to prove statutory grounds for termination by clear and convincing evidence. In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct. App. 1997). In this case, the State was required to prove the four elements under Iowa Code section 232.116(1)(h), which the juvenile court determined it did. The mother argues the State did not meet the burden because the State “failed to prove by clear and convincing evidence that the children could not be returned to her care following the termination trial or within an additional six months.” (Emphasis added.) But Iowa Code section 232.116(1)(h) only requires the State to show the children could not be returned at the time of the termination hearing. It is true that, pursuant to Iowa Code section 232.104(2)(b), the juvenile court may defer termination if it determines the need for removal will extinguish following an additional six-month period. At the hearing, though, the mother insisted the children could be returned to her immediately. While she mentioned her situation may improve in three to four months, she did not directly ask the juvenile court to grant her additional time. Nor 5
We disagree. At the termination hearing, the mother acknowledged she did
not have her own housing, could not afford to live on her own, and was jobless.
She suffers from severe, untreated mental-health problems. She has failed to
consistently drug test. She has missed many visits with the children. And she
never progressed beyond fully-supervised visitation. We agree with the juvenile
court that the children could not be returned to her at the time of the termination
hearing. The requirements of section 232.116(1)(h) are fulfilled.
B. Best Interests
Our next step is to consider the best interests of the children. See Iowa
Code § 232.116(2). The mother does not raise any argument under this step.
Based on our de novo review, however, we agree with the juvenile court that
termination is in the children’s best interests.
C. Exceptions
Finally, we consider the exceptions under Iowa Code section 232.116(3).
The parent bears the burden of proving an exception exists. A.S., 906 N.W.2d at
476. If the parent is successful, the juvenile court has discretion to forgo
termination. In re A.M., 843 N.W.2d 100, 113 (Iowa 2014).
Here, the mother relies on Iowa Code section 232.116(3)(c). It authorizes
the juvenile court to forgo termination if “[t]here is clear and convincing evidence
did she establish the need for removal would be extinguished after the additional six- month period. In any event, we find a grant of an additional six months would be inappropriate. Again, we do not conclude the conditions requiring termination would be extinguished within six months. Moreover, C.M. has been removed from the mother’s custody twice now. D.M. has lived most of his life out of his mother’s custody. As the juvenile court properly observed, these children deserve permanency. See In re A.B., 415 N.W.2d 609, 614 (Iowa 1987) (“It is unnecessary to take from the children’s future any more than is demanded by statute.”). 6
that the termination would be detrimental to the child[ren] at the time due to the
closeness of the parent-child relationship.” Iowa Code § 232.116(3)(c).
We agree with the juvenile court that section 232.116(3)(c) does not apply.
It is true the children have a bond with their mother. Yet both children have been
removed from the mother’s custody for much of their lives. Indeed, D.M. has spent
three-fourths of his life in the care of others. Moreover, as noted, the mother
missed multiple visits with the children and has not progressed past fully-
supervised visitation. She has been unable to provide the safety, stability, and
consistency these children need and deserve. Conversely, termination will free
these children to find permanency through adoption. See In re V.B., No. 17-0077,
2017 WL 1095074, at *3 (Iowa Ct. App. Mar. 22, 2017) (“Termination followed by
adoption is the preferred method of establishing permanency for . . . child[ren] who
cannot be safely returned home.”).
IV. Conclusion
The juvenile court properly terminated the mother’s parental rights.