In the Interest of D.H. and D.H., Minor Children, B.P., Mother

• Court: Court of Appeals of Iowa
• Decided: February 22, 2017
• Docket: 16-1652
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-1652 Filed February 22, 2017

IN THE INTEREST OF D.H. and D.H., Minor children,

B.P., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Thomas J.

Straka, Associate Juvenile Judge.

A mother appeals the termination of her parental rights to her children.

AFFIRMED.

Dustin A. Baker of Baker Law Office, Dubuque, for appellant mother.

Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd (until

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

Kathryn A. Duccini of Duccini Law Office, Dubuque, guardian ad litem for

minor children.

Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ. 2

VAITHESWARAN, Judge.

A mother appeals the termination of her parental rights to her two children,

born in 2005 and 2007. She does not challenge the statutory ground for

termination cited by the juvenile court. She simply argues the court should have

declined to terminate her rights because both children were placed with the

father of one of them. See Iowa Code § 232.116(3)(a) (2016) (“The court need

not terminate the relationship between the parent and child if the court finds . . .

[a] relative has legal custody of the child.”).

Section 232.116(3)(a) is “permissive, not mandatory.” In re M.W., 876

N.W.2d 212, 225 (Iowa 2016). On our de novo review, we are persuaded the

juvenile court appropriately declined to apply this factor.

The mother concedes the children were removed from her care after she

failed to attend to the dental needs of one of them and subsequently

disappeared. She further concedes she “failed to follow through with services

consistently including visitation, substance abuse treatment and drug testing

through the [d]epartment [of human services]” and was homeless by choice

because she refused to separate from her service dog.

The mother also appeared to be under the influence and was inconsistent

in attending visits with her children. The guardian ad litem summarized the

problems impeding reunification as follows:

The issue of any ongoing contact [of the children] with [the mother] has many difficulties. 1) Any ongoing contact must be supervised; 2) [the mother] has not yet addresse[d] the fact that she did not believe or support [one of her children] when it was discovered that [her husband] had sexually assaulted [the child]; 3) [the mother] has serious ongoing issues with her mental health and substance abuse; 4) [the mother] is homeless and despite all efforts 3

to assist [the mother] with finding housing [the mother] has [chosen] not to accept the rules of the temporary housing shelter in town; 5) [the relative and mother] do not communicate well; 6) [the relative] . . . should not be the supervisor for any ongoing contact with [the mother].

The guardian ad litem also noted that the children shared “a very special bond”

with each other, their relationship needed to “be kept intact,” and adoption by the

relative would “[e]nsure this.” She recommended termination of the mother’s

parental rights to both children.

A court appointed special advocate similarly recommended termination of

the mother’s parental rights. She opined the mother had “no protective

capabilities regarding her children” and cited her inability to provide “food or

shelter,” her “skewed” perception, and her unwillingness to “protect [the children]

from predators.”

In light of this evidence, we affirm the juvenile court’s refusal to invoke the

relative exception to termination and its decision to terminate the mother’s

parental rights to the two children.