In the Interest of L.R., Minor Child

• Court: Court of Appeals of Iowa
• Decided: August 21, 2024
• Docket: 24-0799
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0799 Filed August 21, 2024

IN THE INTEREST OF L.R., Minor Child,

A.L., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Greene County, Ashley Beisch,

Judge.

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

Leah Patton of Patton Legal Services, LLC, Ames, for appellant mother.

Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney

General, for appellee State.

Kaitlyn DiMaria of DiMaria Law, PLLC, Grimes, attorney and guardian ad

litem for minor child.

Considered by Tabor, P.J., Chicchelly, J., and Danilson, S.J.*

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

(2024). 2

DANILSON, Senior Judge.

A mother appeals the termination of her parental rights to her child, L.R.,

born in 2021.1 She argues the State failed to establish statutory grounds

authorizing termination, contends termination is not in L.R.’s best interests,

requests we apply a permissive exception to termination, argues the juvenile court

should have established a guardianship in lieu of termination, and requests

additional time to work toward reunification. Following our review, we affirm.

I. Background Facts & Prior Proceedings2

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

Human Services in April 2022, when the child was about eight months old,

following reports that the mother was attempting to care for the child while under

the influence of methamphetamine. At that time, the parents agreed to a safety

plan placing L.R. with the maternal great grandparents. Less than a month later,

the mother tried to assume care of the child while exhibiting behaviors consistent

with methamphetamine use.

In July, the juvenile court adjudicated L.R. as a child in need of assistance

(CINA). The CINA order formally placed legal custody of L.R. with the department

for physical placement with a relative or foster family. The same month, the mother

also self-reported marijuana and methamphetamine use.

In January 2023, the mother tested positive for methamphetamine. The

following February the mother completed a substance-abuse evaluation. That

1 The juvenile court also terminated the parental rights of the father, and he does

not appeal. 2 As only the mother appeals the termination of her parental rights, our factual

recitation focuses on her conduct. 3

evaluation recommended she complete extended outpatient treatment, but she

only attended a few times. In March, she was arrested for possession of marijuana

and drug paraphernalia. The mother admitted to using methamphetamine in April.

She was arrested again in September, that time for possession of marijuana, drug

paraphernalia, and methamphetamine.

Despite the mother’s lack of progress, in October the juvenile court granted

her six more months to work toward reunification.

In November, L.R. was placed in the care of another relative; visits have

been supervised by Boys Town since that time. Boys Town offered the mother

nineteen visits with L.R., but she only attended seven of those.

The mother tested positive for methamphetamine again in February 2024.

She was set to restart outpatient treatment, but she did not show up. About a week

later the mother attended an initial appointment with the treatment center, but she

did not follow through with the treatment program.

The case progressed towards termination, and the juvenile court held a

termination hearing in April. Both the case manager and the mother testified at the

hearing. The mother sought either the return of L.R. to her custody or additional

time to work toward reunification. However, the juvenile court ultimately

determined that the State established statutory grounds for termination and

termination is in L.R.’s best interests; it did not apply a permissive exception to

preclude termination. The mother filed an Iowa Rule of Civil Procedure 1.904

motion asking the court to reconsider its ruling and requested the court establish

a guardianship in lieu of termination. The juvenile court denied the motion, and

the mother appeals. 4

II. Scope & Standard of Review

Appellate review of termination-of-parental-rights proceedings is de novo.

In re Z.K., 973 N.W.2d 27, 32 (Iowa 2022). Our paramount concern in termination

proceedings is the best interests of the children. In re L.T., 924 N.W.2d 521, 529

(Iowa 2019). Typically, our review follows a three-step process that involves

determining if a statutory ground for termination is satisfied, whether termination is

in the child’s best interests, and whether any permissive exceptions should be

applied to preclude termination. In re A.B., 957 N.W.2d 280, 294 (Iowa 2021).

Then we consider additional claims raised by the parent. In re K.M., No. 19-1637,

2020 WL 110408, at *1 (Iowa Ct. App. Jan. 9, 2020).

III. Discussion

A. Statutory grounds

With respect to the statutory grounds authorizing termination, the juvenile

court terminated the mother’s rights pursuant to Iowa Code section 232.116(1)(e),

(h), and (l) (2023). As the mother’s rights were terminated on multiple grounds, we

affirm if any one of the grounds is supported by the record. See In re A.B., 815

N.W.2d 764, 774 (Iowa 2012) (“When the juvenile court terminates parental rights

on more than one statutory ground, we may affirm the juvenile court’s order on any

ground we find supported by the record.”). We focus our attention on

paragraph (h), which permits termination upon clear and convincing proof that

(1) “the child is three years of age or younger”; (2) “the child has been adjudicated

a child in need of assistance”; (3) “the child has been removed from the physical

custody of the child’s parents for at least six of the last twelve months, or for the

last six consecutive months and any trial period at home has been less than thirty 5

days”; and (4) the child cannot be safely returned to the custody of the parent.

Iowa Code § 232.116(1)(h). The mother limits her challenge to the third and fourth

elements.

As to the third element relating to the period of removal, the mother argues

the child was never formally removed from her custody and was instead “safety-

planned out of her care for the entire case.” She notes “the juvenile court did not

hold a hearing on removal and did not enter a formal removal order.” However,

the order adjudicating L.R. CINA in July 2022 removed L.R. from the parents’

custody, stating “the temporary custody of the child in interest is placed with the

Iowa Department of Human Services for placement with a relative or foster family.”

In other words, the adjudicatory order removed L.R. from the parents’ custody and

placed him in the department’s custody. So there was a formal removal of the L.R.

from the mother’s custody. And the mother points to no authority that requires the

juvenile court to issue a separate removal order.3 We conclude L.R. had been

formally removed from the mother’s custody for the required period of time,

satisfying the removal element.

Moving on to the fourth element, the mother argues that L.R. could have

been returned to her custody at the time of the termination hearing. We disagree.

The mother has not established any meaningful period of sobriety, and she tested

positive for methamphetamine within two months of the termination hearing. Given

the mother’s failure to follow through with treatment in the past and her recent use,

3 We recognize the juvenile court may issue both a removal order and a separate

CINA adjudicatory order. But nothing prevents the juvenile court from issuing one order that both adjudicates the child as a CINA and formally removes the child from the parents’ custody. 6

we believe it is likely that she will continue to use methamphetamine. See In re

J.P., No. 19-1633, 2020 WL 110425, at *2 (Iowa Ct. App. Jan. 9, 2020). Aside from

the mother’s use of illegal substances, we recognize the mother is not equipped to

assume care of a young child. She currently lacks stable housing. She testified

that she is staying with a friend in a small apartment, but she conceded that friend

has a criminal history and has kicked her out of the apartment in the past—leaving

her nowhere to go. And the mother lacks a basic understanding of how to care for

such a young child. When asked to describe the day-to-day tasks of caring for the

child, the mother could not.

Simply put, the mother is not equipped to provide safe care for L.R. at this

time. The State established grounds for termination under section 232.116(1)(h).

B. Best Interests

Termination also must serve the child’s best interests. See Iowa Code

§ 232.116(2). When considering the child’s best interests, 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.” In re P.L., 778 N.W.2d 33, 40 (Iowa 2010)

(quoting Iowa Code § 232.116(2)).

The mother argues termination is not in L.R.’s best interests, noting she has

never physically abused him. While we agree the record is devoid of any

suggestion that the mother ever physically abused the child, physical abuse is not

a prerequisite to a determination that termination is in a child’s best interests. Here,

for example, even absent any physical abuse, we conclude termination is in L.R.’s

best interests. This mother cannot provide L.R. with a basic level of stability and 7

care. She lacks any insight on how to care for the child. Conversely, L.R.’s

caretakers are currently meeting his needs, including getting him treatment with a

speech therapist for a speech delay. The caretakers are interested in adopting

him. Adoption would provide L.R. with permanency, and termination is a necessary

step before any adoption can occur. Accordingly, we conclude termination is in

L.R.’s best interests.

C. Permissive Exceptions

Once the State has proved grounds for termination, the burden shifts to the

parent to prove a permissive exception under section 232.116(3). In re A.S., 906

N.W.2d 467, 475–76 (Iowa 2018). The mother attempts to invoke two permissible

exceptions to termination. The first, section 232.116(3)(a), is applicable when “a

relative has legal custody of the child.” However, this exception is not applicable

in this instance because, although L.R. was placed with the maternal great aunt

and uncle, the department had legal custody of L.R. who was only placed in a

familial home.4 See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014); In re K.B.,

No. 23-0792, 2023 WL 5092856, at *4 (Iowa Ct. App. Aug. 9, 2023).

The second permissive exception the mother contends should preclude

termination is section 232.116(3)(c), which is applicable when “[t]here is clear and

convincing evidence that the termination would be detrimental to the child at the

4 A May 2023 Dispositional Review Order stated, “Custody of the child in interest

shall remain with the Iowa Department of Health & Human Services for placement with an appropriate relative.” The October 2023 Permanency Order stated that the order “previously entered continues to be in the best interest of the child and should be ratified and confirmed.” As we find nothing in the record noting a change in legal custody of the child between entry of these orders and the termination hearing, we find that legal custody of L.R. remained with the department at the time of the termination hearing. 8

time due to the closeness of the parent-child relationship.” The mother purports to

share a strong bond with L.R. We have no doubt that there is a bond between

parent and child, but we credit the caseworker’s testimony wherein she opined that

termination would not take an emotional toll on L.R. She explained that L.R.

“doesn’t really engage” during visits with the mother and “doesn’t want to get out

of the van” to attend visits. So while the mother feels a strong bond to L.R., we

question if L.R. reciprocates a bond of equal magnitude. Ultimately we decline to

apply this permissive exception.

D. Guardianship

The mother also advocates for the establishment of a guardianship as an

alternative to termination. See Iowa Code §§ 232.104(2)(d)(2), .117(5). We do

not agree for multiple reasons. First, the mother first proposed the establishment

of a guardianship in her rule 1.904 motion. Even if we concluded the issue was

properly preserved for our review, this case is not well-suited for a guardianship.

We recognize that “a guardianship is not a legally preferable alternative to

termination.” In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App. 2017). L.R.’s young

age also weighs against the establishment of a guardianship. See A.S., 906

N.W.2d at 477. And it is not clear from the record who would be willing to assume

the role of guardian if a guardianship were established. See In re M.H., No. 24-

0576, 2024 WL 3050791, at *3 (Iowa Ct. App. June 19, 2024) (“Without a named

option and evidence supporting the choice of a particular person, we cannot review

the factors that are usually considered when determining whether a guardianship

is appropriate in this case.”). Accordingly, we cannot conclude that a guardianship

would be in L.R.’s best interests. 9

E. Additional Time

Finally, we address the mother’s contention that she should be given more

time to work towards reunification. The court may grant a parent six additional

months to work toward reunification in lieu of termination under certain

circumstances. See Iowa Code § 232.117(5) (permitting the court to enter a

permanency order pursuant to section 232.104 if it does not terminate parental

rights); see also id. § 232.104(2)(b) (providing a permanency option of giving an

additional six months to work toward reunification). Notwithstanding, before the

court may grant a parent such additional time, it 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).

Here the juvenile court previously granted the mother additional time to work

towards reunification. However, the mother made no meaningful progress during

that period of time. Instead, her progress remained stagnated. We understand

the mother has taken the beginning steps towards restarting outpatient treatment.

We commend her for taking that important step. At the same time, we must face

the fact that she failed to fully engage and participate in that treatment following

her initial meeting. Unfortunately, given the mother’s poor track record over the

last two years, we do not believe she is likely to be in the position to assume the

role of parent within six months. Accordingly, we have no basis to grant the mother

additional time to work towards reunification. 10

IV. Conclusion

The State established statutory grounds authorizing termination of the

mother’s parental rights. Termination is in the child’s best interests. We decline to

apply any permissive exceptions to termination or to establish a guardianship in

lieu of termination. Finally, we do not grant the mother any additional time to work

towards reunification.

AFFIRMED.