In the Interest of N.B., Minor Child

• Court: Court of Appeals of Iowa
• Decided: April 1, 2020
• Docket: 20-0239
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0239 Filed April 1, 2020

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

J.K., Father, Appellant,

B.B., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, David F. Staudt,

Judge.

A mother and a father separately appeal the termination of their parental

rights to their child. AFFIRMED ON BOTH APPEALS.

Joseph G. Martin, Cedar Falls, for appellant father.

Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant

mother.

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

Attorney General, for appellee State.

Melissa A. Anderson-Seeber of Juvenile Public Defender’s Office,

Waterloo, attorney and guardian ad litem for minor child.

Considered by Vaitheswaran, P.J., and Doyle and May, JJ. 2

DOYLE, Judge.

A mother and a father separately appeal the termination of their parental

rights to their child. We review termination proceedings de novo. See In re A.S.,

906 N.W.2d 467, 472 (Iowa 2018). Though the juvenile court’s findings are not

binding on us, we give them weight, especially when they involve witness

credibility. See id.

The child was seven months old when the Iowa Department of Human

Services (DHS) was alerted to concerns that the parents could not provide the

level of care the child needs. The child, who weighed only nine pounds and three

ounces at the time, had been diagnosed with failure to thrive. The juvenile court

ordered removal and adjudicated the child to be in need of assistance (CINA). Six

months later, the juvenile court noted that the parents had made some progress

but concerns remained about their ability to provide long-term care for the child

without assistance. Although the parents asked the court to delay permanency

while they continued to address the issues that led to the CINA adjudication, the

juvenile court ordered the State to file a petition to terminate parental rights. After

the termination hearing, the court terminated each parent’s rights under Iowa Code

section 232.116(1)(h) (2019).

I. Mother’s Appeal.

On appeal, the mother challenges the finding that N.B. could not be returned

to her custody at the time of the termination hearing, one of the requirements for

termination under section 232.116(1)(h). See Iowa Code § 232.116(1)(h)(4)

(requiring “clear and convincing evidence that at the present time the child cannot

be returned to the custody of the child’s parents as provided in section 232.102”); 3

In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the term “at the present

time” to mean “at the time of the termination hearing”). But the mother never

progressed beyond supervised visits with the child. A bed bug infestation and filthy

conditions in the home continued, presenting a danger to the child because of the

child’s medical needs. Because the record shows that the child requires a level of

care that the mother could not provide, returning the child to the mother’s care

would expose the child to harm that would amount to a new CINA adjudication.

See In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App. 2016) (stating that a child

cannot be returned to the custody of the parent if doing so would expose the child

to any harm amounting to a new CINA adjudication). Clear and convincing

evidence supports termination under section 232.116(1)(h).

The mother also contends termination goes against the child’s best

interests. See D.W., 791 N.W.2d at 706-07 (requiring that the court “apply the

best-interest framework set out in section 232.116(2) to decide if the grounds for

termination should result in a termination of parental rights”). In determining the

child’s best interests, we look at “the child’s safety,” “the best placement for

furthering the long-term nurturing and growth of the child,” and “the physical,

mental, and emotional condition and needs of the child.” In re P.L., 778 N.W.2d

33, 37 (Iowa 2010) (quoting Iowa Code § 232.116(2)). The “defining elements”

are the child’s safety and “need for a permanent home.” In re H.S., 805 N.W.2d

737, 748 (Iowa 2011) (citation omitted). We have already noted that the mother

cannot provide the level of care the child needs. Because the mother cannot care

for the child safely or provide the permanency the child needs, we agree that

termination is in the child’s best interests. 4

Finally, the mother asserts termination should be avoided because she has

a significant bond with the child. If the court finds termination would be detrimental

to the child because of the closeness of the parent-child relationship, the court

need not terminate parental rights. See Iowa Code § 232.116(3)(c). This

provision is permissive, not mandatory. See A.S., 906 N.W.2d at 475. The mother

bears the burden of proving termination would be detrimental to the child. See id.

at 476. And if she does, we must still consider the children’s best interests in

determining whether to terminate parental rights. See id. at 475.

We disagree with the mother’s assertion that termination is detrimental to

the child based on the closeness of their bond. The child was removed from the

mother’s care at nine months of age and was one and a half at the time of

termination. The mother loves the child, but she has failed to show that she and

the child are so closely bonded that termination would be detrimental to the child.

Affection alone cannot provide the care, protection, and nurturance that this child

needs and deserves. Moreover, the mother’s inability to meet the child’s needs

poses a real threat to the child’s health. Under the circumstances, termination is

necessary.

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

II. Father’s Appeal.

The father does not challenge the grounds for termination but contends that

the child’s interests are best served by delaying permanency for another six

months. Under Iowa Code section 232.104(2)(b), the court may allow continue

permanency if doing so will eliminate the need for the child’s removal. But the

juvenile court declined to apply this provision, stating it was “not convinced that, 5

following eight months of failure to make the significant improvements necessary

for the return of their child, additional time will make it more likely that the couple

will suddenly decide to make the necessary changes.” It found that “consistent

and permanent physical, medical, and mental health concerns prohibit the ability

of the couple to move forward toward caring for their child.” Because we concur

with this finding, the father is not entitled to additional time to prove himself as a

parent.

We also note that the legislature “has established a limited time frame for

parents to demonstrate their ability to be parents.” In re J.E., 723 N.W.2d 793, 800

(Iowa 2006). Once the grounds for termination have been proved, time is of the

essence. See In re A.C., 415 N.W.2d 609, 614 (Iowa 1987) (“It is unnecessary to

take from the children’s future any more than is demanded by statute.”); In re C.D.,

508 N.W.2d 97, 99 (Iowa Ct. App. 1993) (“Time is of the essence in dealing with

children’s issues.”). As we have often said, children are not equipped with pause

buttons. See In re R.J., 436 N.W.2d 630, 636 (Iowa 1989) (noting that once the

time for reunification set by the legislature has expired, “patience on behalf of the

parent can quickly translate into intolerable hardship for the children”). On the

record before us, we agree that no additional time is warranted.

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

AFFIRMED ON BOTH APPEALS.