In the Interest of M.S., Minor Child

• Court: Court of Appeals of Iowa
• Decided: January 9, 2025
• Docket: 24-1545
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-1545 Filed January 9, 2025

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

S.S., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Floyd County, Elizabeth Batey,

Judge.

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

Ann M. Troge, Charles City, for appellant mother.

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

General, for appellee State.

Jamie L. Schroeder, Shell Rock, attorney and guardian ad litem for minor

child.

Considered by Tabor, C.J., and Ahlers and Sandy, JJ. 2

AHLERS, Judge.

The juvenile court terminated the parental rights of a mother and the

putative father to a child born in 2022. Only the mother appeals. She challenges

the statutory grounds for termination, claims termination is not in the child’s best

interests, and argues we should apply a permissive exception to termination and

instead establish a guardianship for the child.

We conduct de novo review of orders terminating parental rights. In re Z.K.,

973 N.W.2d 27, 32 (Iowa 2022). Our review follows a three-step process that

involves determining if a statutory ground for termination has been established,

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). As the mother has challenged each step, we address all three.

Starting with the first step, the juvenile court terminated the mother’s

parental rights pursuant to Iowa Code section 232.116(1)(h) (2024).

Section 232.116(1)(h) permits termination upon clear and convincing proof that

(1) “[t]he child is three years of age or younger”; (2) “[t]he child has been

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

physical custody of the parents for at least six of the last twelve months; and (4) the

child cannot be returned to the custody of the parent.

The mother only challenges the fourth element on appeal—whether the

child could have been safely returned to her custody at the time of the termination

hearing. See id. § 232.116(1)(h)(4); In re A.M., 843 N.W.2d 100, 112 (Iowa 2014)

(holding that “at the present time” means at the time of the termination hearing).

This child came to the attention of the Iowa Department of Health and Human 3

Services when she tested positive for methamphetamine at birth due to the

mother’s use of the drug while pregnant. Since that time, the mother has followed

a pattern of having periods of sobriety followed by relapse. The mother has tested

positive for methamphetamine five additional times, most recently about three

months before the termination hearing held in August 2024. She admitted to

relapsing only once in 2023, but she provided no explanation for the subsequent

positive tests. Based on this evidence, we conclude the mother’s

methamphetamine use remains unresolved. See In re M.D., No. 23-1137, 2023

WL 6290679, at *1 (Iowa Ct. App. Sept. 27, 2023) (collecting cases recognizing a

parent is likely to use an illegal drug in the future given long history of relapses).

And “[a] parent’s methamphetamine use, in itself, creates a dangerous

environment for children.” See In re J.P., No. 19-1633, 2020 WL 110425, at *2

(Iowa Ct. App. Jan. 9, 2020). That is particularly true when the child is too young

to self-protect, as is this child. We agree with the juvenile court that the child could

not be safely returned to the mother’s custody at the time of the termination

hearing.

Next, we address the mother’s claim that termination is not in the child’s

best interests. When making a best-interests determination, 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)). While the mother has demonstrated parenting

skills and has a stable home and employment, her methamphetamine use remains

unresolved. Most concerning, the mother has a history of adeptly concealing her 4

relapses from those around her, which prevents third parties from knowing when

to step in to protect the child. And the child’s safety is our paramount concern

when making a best-interests determination. See In re J.E., 723 N.W.2d 793, 802

(Iowa 2006) (Cady, J., concurring specially) (describing safety as the defining

element of the best-interest analysis). So we conclude termination is in the child’s

best interests.

Finally, the mother contends that we should apply a permissive exception

to preclude termination and instead establish a guardianship for the child. It is the

mother’s burden to prove an exception should be applied. In re A.S., 906 N.W.2d

467, 475–76 (Iowa 2018). The mother does not specifically identify what exception

she seeks to invoke, but she references her bond with the child—implicating

section 232.116(3)(c). This exception gives the court discretion to forgo

termination when the bond between parent and child is so strong that “termination

would be detrimental to the child.” Iowa Code § 232.116(3)(c). However, the

mother presented no evidence at the termination trial, relating to the parent-child

bond or otherwise, so she has not carried her burden to prove a permissive

exception to termination. And from our review of the record, it is apparent there is

a parent-child bond, but it is not of such magnitude that termination will be

manifestly detrimental to the child.

As to the mother’s contention that the child would be better served by a

guardianship rather than termination, we disagree. “[A] guardianship is not a

legally preferable alternative to termination.” In re B.T., 894 N.W.2d 29, 32 (Iowa

Ct. App. 2017). And a guardianship is a particularly poor option when the child is

too young to express an informed preference. A.S., 906 N.W.2d at 478. This 5

child’s age—less than three years old at the time of the termination hearing—

weighs against a guardianship. See id. Guardianships inherently provide less

stability for a child than termination and adoption, particularly for a child this young.

We echo the social worker’s concerns that if a guardianship were established, the

mother may again conceal her drug use and attempt to terminate the guardianship.

A guardianship is simply not a viable option in this instance.

We affirm the juvenile court’s decision to terminate the mother’s parental

rights.

AFFIRMED.