In the Interest of M.B., Minor Child

• Court: Court of Appeals of Iowa
• Decided: December 19, 2018
• Docket: 18-1212
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-1212 Filed December 19, 2018

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

B.B., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

District Associate Judge.

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

Jacob L. Mason of JL Mason Law, PLLC, Des Moines, for appellant mother.

Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

ConGarry D. Williams of Juvenile Public Defender’s Office, Des Moines,

guardian ad litem for minor child.

Considered by Tabor, P.J., and Mullins and Bower, JJ. 2

MULLINS, Judge.

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

2012. The child first came to the attention of the Iowa Department of Human

Services (DHS) in July 2014 upon reports the mother was using controlled

substances while caring for the child. DHS initially removed the child. The mother

was successful in treatment, the child was returned to the mother’s care, and the

case was closed in February 2016.1 In February 2017, the child again came to the

attention of DHS upon reports of the mother and her live-in paramour using

controlled substances while caring for the child. During its investigation, DHS

discovered the paramour sexually abused the child. The child was removed from

the mother’s care and initially placed with the maternal grandmother.2 However,

the child was removed after the grandmother allowed the mother unsupervised

and unauthorized contact with the child, which resulted in contact with the mother’s

paramour. The child was subsequently placed and remains in foster care.

During the pendency of this case, DHS explored a maternal great-aunt as

a potential placement for the child, but it determined she was not suitable for long-

term placement due to concerns for her ability to set boundaries with the maternal

grandmother and the maternal grandmother’s own boundary issues with the

mother. Further, the maternal great-aunt failed to immediately report a sexual

incident between the child and a relative of the foster family. The mother continued

to struggle with substance abuse and, throughout the pendency of this case,

1 The child’s father’s parental rights were terminated during the course of these prior proceedings. 2 We note that the maternal grandmother passed away in July 2018. 3

including just prior to the termination hearing, continued to associate with the

paramour that abused the child. In June 2018, the juvenile court terminated the

mother’s parental rights pursuant to Iowa Code section 232.116(1)(f) and (l)

(2018).

We review termination proceedings de novo. In re A.M., 843 N.W.2d 100,

110 (Iowa 2014). “We are not bound by the juvenile court’s findings of fact, but we

do give them weight, especially in assessing the credibility of witnesses.” Id.

(quoting In re D.W., 791 N.W.2d 703, 706 (Iowa 2010)). On appeal, the mother

does not contest the statutory grounds upon which her rights were terminated.

Therefore we do not need to address this step in the three-step analysis for

termination of parental rights. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).

Instead, the mother maintains termination is not in the child’s best interests and

statutory exceptions should be applied to preclude termination. The mother

suggests the best interests of the child would be to establish a guardianship with

the maternal great-aunt as guardian due to the child’s bond with herself and the

great-aunt along with other members of the mother’s family.

To determine whether termination is in 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.” Iowa Code § 232.116(2). “[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)). Further, a guardianship, rather than termination, would not promote

stability in the child’s life. See In re R.S.R., No. 10-1858, 2011 WL 441680, at *4 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.”)

We recognize that DHS considered and ultimately determined the maternal

great-aunt was not appropriate for long-term placement for the child due to

concerns about her inability to provide protective boundaries and her failure to

immediately report sexual abuse. The record also reflects the maternal great-aunt

is in support of termination of the mother’s parental rights. Though the maternal

great-aunt may be willing to care for the child, “[a]n appropriate determination to

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

willingness of a family relative to take the child. The child’s best interests always

remain the first consideration.” In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). Even

if a guardianship with the maternal great-aunt was established, the mother has

failed to meet her burden to show that such a guardianship should serve as an

alternative to termination. On our de novo review, we conclude a guardianship is

not appropriate under the facts of this case and termination is in the best interests

of the child.

The mother also contends the statutory exceptions to termination contained

in Iowa Code section 232.116(3)(a) and (c) should be applied. The “factors

weighing against termination in section 232.116(3) are permissive, not

mandatory.” In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (quoting A.M., 843

N.W.2d at 113). “We may use our discretion, ‘based on the unique circumstances

of each case and the best interests of the child, whether to apply the factors in this

section to save the parent-child relationship.’” Id. (quoting A.M., 843 N.W.2d at 5

113). “[O]nce the State has proven a ground for termination, the parent resisting

termination bears the burden to establish an exception to termination.” A.S., 906

N.W.2d at 476.

The juvenile court declined to apply any exception to termination, finding

the “mother has not maintained consistent contact with the child and has not

meaningfully engaged in services and her continued poor decisions pose a real

danger to this child.” Section 232.116(3)(a) permits the court to forgo termination

if “[a] relative has legal custody of the child.” We find the exception under

paragraph (3)(a) does not apply—at the time of the termination hearing, the child

was not in the legal custody of a relative, but in the custody of DHS and placed in

a foster home. Section 232.116(3)(c) permits the court to forgo termination if

“[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.” A

strong bond between parent and child is “not an overriding consideration, but

merely a factor to consider.” In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998).

Further, “our consideration must center on whether the child will be disadvantaged

by termination, and whether the disadvantage overcomes [the mother’s] inability

to provide for [the child’s] developing needs.” D.W., 791 N.W.2d at 709. On our

review, we find that though there is a bond between mother and child, that bond

does not outweigh the child’s need for stability and permanency. The mother’s

continued use of controlled substances and association with the man who abused

her child places the child at risk of harm. We conclude the closeness of the parent-

child relationship does not preclude termination in this case.

AFFIRMED.