In the Interest of J.B., Minor Child

• Court: Court of Appeals of Iowa
• Decided: October 7, 2020
• Docket: 20-1087
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-1087 Filed October 7, 2020

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

V.F., Minor Child, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Appanoose County, William Owens,

Associate Juvenile Judge.

A mother appeals the termination of her parental rights. AFFIRMED.

James R. Underwood, Centerville, for appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Julie De Vries of De Vries Law Office, PLC, Centerville, attorney and

guardian ad litem for minor child.

Considered by Doyle, P.J., Schumacher, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020). 2

SCOTT, Senior Judge.

A mother appeals the termination of her parental rights to her child, born in

2019, pursuant to Iowa Code section 232.116(1)(e), (g), and (h) (2020).1 Our

review is de novo. In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our primary

consideration is the best interests of the child, In re J.E., 723 N.W.2d 793, 798

(Iowa 2006), the defining elements of which are the child’s safety and need for a

permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).

The mother passively argues she “does not agree that the statutory grounds

for termination of her parental rights were met under Iowa Code section

232.116(1)(f).” But, as noted, her rights were terminated under paragraphs (e),

(g), and (h) of section 232.116(1). In any event, the evidence clearly and

convincingly shows the child: (1) is three years of age or younger; (2) has been

adjudicated a child in need of assistance; (3) has been removed from parental

custody for the last six consecutive months with no trial periods at home; and (4)

could not be returned to the mother’s care at the time of the termination hearing,

as she was incarcerated. See Iowa Code § 232.116(1)(h). We affirm termination

under section 232.116(1)(h). See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010)

(“[W]e may affirm the juvenile court’s termination order on any ground that we find

supported by clear and convincing evidence.”).

The mother further argues termination of her parental rights is contrary to

the child’s best interests. In determining whether termination is in the best interests

of a child, we “give primary consideration to the child’s safety, to the best

1 The parental rights of the child’s father were also terminated. He does not appeal. 3

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). While somewhat unclear, the mother seems to argue that, under

the circumstances, the child’s best interests mandate a permanency option

involving transferring guardianship and custody to a suitable other person. See id.

§ 232.117(5) (authorizing the court, following a termination hearing, to enter an

order in accordance with section 232.104 in lieu of terminating parental rights); see

also id. § 232.104(2)(d)(1) (allowing for transferring of “guardianship and custody

of the child to a suitable person”).

We begin with the principle that “a guardianship is not a legally preferable

alternative to termination.” In re A.S., 906 N.W.2d 467, 477 (Iowa 2018) (quoting

In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App. 2017)). Although section

232.104(2)(d) allows for the establishment of a guardianship as a permanency

option, section 232.104(3) requires “a judicial determination that [such a] planned

permanent living arrangement is the best permanency plan for the child.” See

B.T., 894 N.W.2d at 32–33. Determining the best permanency plan for a child is

a best-interests assessment. A guardianship, rather than termination, would not

promote stability or provide permanency to this young child’s life. See In re R.S.R.,

No. 10-1858, 2011 WL 441680, at *4 (Iowa Ct. App. Feb. 9, 2011) (“So long as a

parent’s rights remain intact, the parent can challenge the guardianship and seek

return of the child to the parent’s custody.”). Upon our de novo review, we agree

with the juvenile court that, “given the age of the child, the length of time the child

has been removed, [the mother’s] lack of substantial progress toward reunification,

and the availability of other viable permanency options,” establishing a 4

guardianship in lieu of termination would not serve the child’s best interests. We

find termination to be in the child’s best interests.

Next the mother requests the application of the statutory exceptions to

termination contained in Iowa Code section 232.116(3)(a) and (e). We first note

the application of the statutory exceptions to termination is “permissive, not

mandatory.” In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (quoting In re A.M.,

843 N.W.2d 100, 113 (Iowa 2014)). Section 232.116(3)(a) allows the court to

forego termination if “[a] relative has legal custody of the child.” Upon our de novo

review, we find applicable the principle that “[a]n appropriate determination to

terminate a parent child relationship is not to be countermanded by the ability and

willingness of a family member to take the child,” In re C.K., 558 N.W.2d 170, 174

(Iowa 1997), and we decline to apply this exception to termination. Section

232.116(3)(e) allows the court to forego termination if the parent’s absence is due

to “admission or commitment to any institution, hospital, or health facility or due to

active service in the state or federal armed forces.” The mother’s absence is due

to her incarceration in a penal institution, so this exception is not applicable. See

In re J.S., 470 N.W.2d 48, 51 (Iowa Ct. App. 1991) (noting institutions under the

exception do not include penal institutions).

To the extent the mother requests additional time to work toward

reunification, given her track record, we are unable to conclude “the need for

removal . . . will no longer exist at the end of the additional six-month period.” See

Iowa Code § 232.104(2)(b).

We affirm the termination of the mother’s parental rights.

AFFIRMED.