In the Interest of L.D. and A.D., Minor Children

• Court: Court of Appeals of Iowa
• Decided: February 22, 2023
• Docket: 22-1980
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1980 Filed February 22, 2023

IN THE INTEREST OF L.D. and A.D., Minor Children,

S.D., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Lynn Poschner, District

Associate Judge.

A mother appeals the juvenile court’s order terminating her parental rights.

AFFIRMED.

Teresa M. Pope of Pope Law, PLLC, Des Moines, for appellant mother.

Brenna Bird, Attorney General, and Anagha Dixit, Assistant Attorney

General, for appellee State.

Lynn Vogan of Youth Law Center, Des Moines, attorney and guardian ad

litem for minor children.

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

AHLERS, Judge.

The juvenile court terminated the parental rights of both parents of L.D.

(born in 2017) and A.D. (born in 2015). The mother appeals. The father does not.

We review decisions terminating parental rights de novo. In re Z.K., 973 N.W.2d

27, 32 (Iowa 2022).

I. Termination Process

Analysis of termination cases follows a three-step process of

(1) determining whether the State has established a statutory ground for

termination, (2) applying the statutory framework of Iowa Code section 232.116(2)

(2022) to determine whether termination is in the best interests of the children, and

(3) considering whether to apply one of the permissive exceptions of Iowa Code

section 232.116(3) to avoid termination. In re D.W., 791 N.W.2d 703, 706–07

(Iowa 2010). The mother challenges all three steps, and she also asserts that she

should have been given an additional six months to work toward reunification.

II. Analysis

A. Statutory Grounds

As to the first step, the juvenile court terminated the mother’s parental rights

pursuant to Iowa Code section 232.116(1)(f). Section 232.116(1)(f) permits the

court to terminate parental rights upon proof of four elements: (1) a child is four

years of age or older; (2) the child has been adjudicated a child in need of

assistance (CINA); (3) the child has been removed from the physical custody of

the child’s parents for the last twelve consecutive months and any trial period at

home has been less than thirty days; and (4) there is clear and convincing evidence

that the child cannot be returned to a parent’s custody at the time of the termination 3

hearing. In re A.C., No. 22-1443, 2022 WL 16986259, at *1 (Iowa Ct. App. Nov. 17,

2022).

The mother challenges only the fourth element, asserting that the children

could have been returned to her custody at the time of the termination hearing. On

our de novo review, we agree with the juvenile court that the children could not be

returned to the mother’s custody. In reaching this conclusion, we look at this

family’s history.

This family came to the attention of the Iowa Department of Health and

Human Services in 2018 around the time the mother and father divorced. The

department became involved after the father overdosed on heroin while

responsible for the children’s care. The department completed additional

assessments in 2020 following incidents of the children wandering around

unsupervised in their apartment building while the mother drank in the family’s

apartment. After an episode of the mother dropping the older child off at school

on a day when school was not in session and failing to respond to school officials’

attempts to contact her, followed by the family being evicted from its apartment

and living in a vehicle, CINA proceedings were started. Shortly thereafter, the

children were removed from parental custody and adjudicated CINA. Both children

tested positive for methamphetamine at the time of removal.

For the next sixteen or so months leading up to the termination hearing, the

mother was sporadic in exercising visits with the children, attending her needed

mental-health treatment, managing her medication, and dealing with her medical 4

issues.1 She also never submitted to drug testing in a timely manner. She

continued to maintain contact with the father, even though they used drugs

together and the father had physically beaten the mother on at least one occasion.

The mother hid this continued contact from service providers and her own

therapist. By the time of the termination hearing, the mother contradicted previous

reports she had made and claimed the father had never abused her in any way

and that he was a support person for her.

We find the continued dedication to her relationship with the father

particularly troubling. The father has a history of over a decade of drug abuse,

which devolved into intravenous use of heroin and methamphetamine, and he

made no meaningful efforts to address his substance-abuse problems throughout

the four-year period of department involvement. The mother’s view of the father

as her support person highlights her lack of awareness that makes her unable to

keep the children safe. See In re D.D., 955 N.W.2d 186, 193 (Iowa 2021) (“It’s

folly to think the mother will stand sentinel to protect against a foe she doesn’t

acknowledge exists.”).

We agree with the juvenile court that the children could not be returned to

the mother’s custody at the time of the termination hearing. Statutory grounds for

termination of her rights were established.

1 The mother has a benign brain tumor and narcolepsy. The juvenile court found that the mother’s “absence in her children’s lives, lack of insight into [the father]’s drug use and violence, or general inconsistency” cannot be attributed to her medical diagnoses. On our de novo review, we agree with these findings. 5

B. Best Interests

We also find it is in the children’s best interests to terminate the mother’s

parental rights. The mother highlights that she has secured stable housing. While

this is commendable, adequate parenting involves more than just providing a place

to live, food, and clothing; it involves providing a safe home. In re H.W., 961

N.W.2d 138, 144 (Iowa Ct. App. 2021). The mother’s failure to safeguard the

children from their drug-addicted and abusive father negates any suggestion that

the mother would provide a safe home, as does her sporadic involvement with

services. And, while it is also commendable that the mother ramped up her efforts

at addressing her physical and mental-health issues just before the termination

hearing, the mother has not demonstrated an ability to maintain that effort over the

long haul, which is what these children need. See In re P.L., 778 N.W.2d 33, 41

(Iowa 2010) (considering a child’s best interest involves assessing “the best

placement for furthering the long-term nurturing and growth of the child”). We

agree with the juvenile court that termination of the mother’s parental rights is in

the children’s best interests.

C. Permissive Exceptions to Termination

The mother also asks us to apply section 232.116(3)(c), which permits us

to forgo termination when “[t]here is clear and convincing evidence that the

termination would be detrimental to the child at the time due to the closeness of

the parent-child relationship.” Applying an exception is permissive, not mandatory,

and the burden is on the parent to establish the exception. In re A.S., 906 N.W.2d

467, 475–76 (Iowa 2018). 6

We have no doubt there is some bond between the mother and the children

and that the mother loves the children and vice versa. But love is not sufficient to

trigger the exception. In re L.B., No. 21-0937, 2021 WL 3896359, at *4 (Iowa Ct.

App. Sep. 1, 2021). The relevant consideration is whether the children will be

disadvantaged by termination. Id. The evidence shows that, as the mother

continued to miss some visits and be late for others, the children began to show

signs of stress over the visits. The older child began to show less enthusiasm for

visits and physically hang back from interacting with the mother. The younger child

would cry at the end of visits, but would demonstrate signs of anxiety when the

mother was late, as she often was. The mother’s lack of responsibility in attending

visits does not bode well for her ability to demonstrate responsibility on a full-time

basis, and the children should not be left in a state of anxiety and stress wondering

if and when the mother is going to be there for them. Based on our review of the

record, we are not convinced that it will be detrimental to the children to terminate

the mother’s rights, so we decline to apply the exception for termination provided

by section 232.116(3)(c).

D. Additional Time

As a final challenge, the mother asserts that she should have been given

an additional six months to work toward reunification. This is a permissible option

if the juvenile court decides not to terminate rights. See Iowa Code § 232.117(5)

(permitting the court to utilize any of the permanency options under

section 232.104 if it decides not to terminate parental rights); see also id.

§ 232.104(2)(b) (providing a permancy option of giving a parental an additional six

months to work toward reunification). To exercise this option, however, a court 7

must be able to “enumerate the specific factors, conditions, or expected behavioral

changes which comprise the basis for the determination that the need for removal

of the child from the child’s home will no longer exist at the end of the additional

six-month period.” Id. § 232.104(2)(b).

We are unable to enumerate any factors, conditions, or expected behavioral

changes that would justify granting the request for an extension. While we are

mindful of the mother’s increased effort at addressing her issues just before the

termination hearing, we are also mindful of the juvenile court’s accurate

observation that “[w]hile [the mother] has had a positive two months prior to the

termination hearing, this appears to be part of a cycle rather than a genuine

movement forward when the history of the family is viewed as a whole.” The

mother has had department involvement for around four years, with periods of

progress followed by periods of back sliding. We are not convinced that a few

weeks of effort after the court’s permanency order directed the initiation of

termination proceedings means that removal will not be necessary in six months.

See In re D.M., 516 N.W.2d 888, 891 (Iowa 1994) (finding efforts “of very recent

origin” to be an unpersuasive “eleventh hour attempt to prevent termination”); In re

K.A., No. 20-0979, 2020 WL 5946114, at *2 (Iowa Ct. App. Oct. 7, 2020)

(“[E]leventh hour attempts do not warrant an extension of time or prevent

termination of [parental] rights.”). We will not gamble the children’s future by

delaying termination in the hope that the mother will show sufficient improvement

in the next six months that she has been unable to show in the past. See In re

D.W., 385 N.W.2d 570, 578 (Iowa 1986) (“[W]e cannot gamble with the children’s 8

future. They must not be made to await their mother’s maturity.” (quoting In re

Kester, 228 N.W.2d 107, 110–11 (Iowa 1975))).

III. Conclusion

We agree with the juvenile court that statutory grounds for termination have

been established, termination of the mother’s parental rights is in the children’s

best interests, termination of rights would not be detrimental to the children due to

the closeness of the mother’s relationship with the children, and an additional six

months to work toward reunification is not warranted. Therefore, we affirm the

order terminating the mother’s parental rights.