IN THE COURT OF APPEALS OF IOWA
No. 21-1539 Filed January 27, 2022
IN THE INTEREST OF N.B., Minor Child,
L.W., Mother, Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Brent Pattison, District
Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Sarah E. Dewein of Cunningham & Kelso, P.L.L.C., Urbandale, for appellant
mother.
Thomas J. Miller, Attorney General, and Chandlor Collins, Assistant
Attorney General for appellee State.
Magdalena Reese, attorney and guardian ad litem for minor child.
Considered by Greer, P.J., and Schumacher and Ahlers, JJ. 2
AHLERS, Judge.
The mother appeals the termination of her parental rights to N.B., born in
2018. The family came to the attention of the Iowa Department of Human Services
(DHS) shortly after birth when the child tested positive for methamphetamine and
amphetamines. The newborn child was removed from the family home but
returned to the parents’ custody in February 2020.
The family again came to the attention of the DHS in October 2020 when
law enforcement executed a federal search warrant on the family home and
discovered large amounts of methamphetamine, large amounts of cash, and other
evidence of drug trafficking. The father was taken into custody and charged with
state and federal crimes. The mother was not charged after the search, though
she admitted using methamphetamine two days prior. The child was soon
removed from the parents’ custody again and then adjudicated a child in need of
assistance.
The mother initially made progress addressing her mental-health and
substance-abuse issues; however, she tested positive for methamphetamine in
May 2021, and she began inconsistently engaging with services after that. The
State petitioned to terminate parental rights, which proceeded to a hearing in
September 2021. The juvenile court terminated the mother’s parental rights under
Iowa Code section 232.116(1)(g) and (h) (2021).1 The mother appeals.
We review termination-of-parental-rights proceedings de novo.2 Such
1 The juvenile court also terminated the father’s parental rights. He does not appeal. 2 In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). 3
proceedings follow a familiar three-step process of determining (1) whether
statutory grounds for termination have been established, (2) whether termination
is in the best interest of the children, and (3) whether the statutory exceptions of
section 232.116(3) should preclude termination.3
First, the mother argues the State failed to prove a statutory ground for
termination. “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.”4 We choose to address termination under section
232.116(1)(h), which allows the juvenile court to terminate parental rights if it finds
all of the following:
(1) The child is three years of age or younger. (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (3) The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time.
The mother concedes the first two elements but disputes the third and
fourth. As to the third element, the mother only argues termination was rushed,
which “frustrates the purpose behind the statute.” “While we recognize the law
requires a ‘full measure of patience with troubled parents who attempt to remedy
a lack of parenting skills,’ Iowa has built this patience into the statutory scheme of
3 In re P.L., 778 N.W.2d 33, 40–41 (Iowa 2010) (reciting the three-step process); In re M.J.H.T., No. 17-1329, 2017 WL 6033879, at *2 (Iowa Ct. App. Dec. 6, 2017) (referring to the process as “a now familiar three-step analysis”). 4 In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). 4
Iowa Code chapter 232.”5 Eleven months elapsed between removal from the
mother’s care in October 2020 and the termination hearing in September 2021.
This removal was continuous and exceeds the six months required under section
232.116(1)(h)(3), which the mother apparently recognizes by focusing on the
“spirit” of the statute. We find the third element satisfied both legally and in spirit.
As to the fourth element, the mother argues she has been addressing her
mental-health and substance-abuse issues and her home is appropriate for the
child. The mother has a long history of substance abuse. While the mother initially
engaged in services, she began resisting testing and treatment around April 2021.
On May 5, the mother provided a urine sample that tested positive for
methamphetamine. Beginning the final week of May, the mother agreed to meet
with her substance-abuse and mental-health counselor weekly instead of monthly,
even though she denied drug use in spite of the recent positive test. However,
she did not comply with the agreement. Her attendance was sporadic, as she only
met with her counselor five times from June until the September termination
hearing. The mother blamed the counselor for canceling or changing her
appointments. The juvenile court was skeptical of these claims, and, on our de
novo review, we share that skepticism. Since the positive test in May, the mother
consistently ignored or outright refused DHS requests for drug testing, making
service providers, the juvenile court, and us unable to verify her claims of sobriety.
5In re C.B., 611 N.W.2d 489, 494 (Iowa 2000) (quoting In re D.A., Jr., 506 N.W.2d 478, 479 (Iowa Ct. App. 1993)). 5
The mother has also irregularly attended visitation. She did not schedule
as much visitation as she could and often arrived late for visits, interfering with the
child’s bedtime.
Considering the mother’s recent positive test, refusal to acknowledge her
drug use, inconsistent attendance in treatment, unverified sobriety, and unreliable
visitation, we find the fourth element satisfied, as the child could not be safely
returned to the mother. We agree the State proved the ground for termination
under section 232.116(1)(h).
Second, the mother argues termination is not in the child’s best interests.6
Here, the mother repeats her claims that she attends mental-health and
substance-abuse treatment, her home is appropriate for the child, and she is
nurturing during visitation. As explained above, the mother has inconsistently
engaged in treatment, testing, and visitation in the months leading up to the
termination hearing. We find termination is in the child’s best interests.
Finally, the mother argues she proved that a permissive factor under section
232.116(3) should preclude termination.7 The mother asserts her parental rights
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IN THE COURT OF APPEALS OF IOWA
No. 21-1539 Filed January 27, 2022
IN THE INTEREST OF N.B., Minor Child,
L.W., Mother, Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Brent Pattison, District
Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Sarah E. Dewein of Cunningham & Kelso, P.L.L.C., Urbandale, for appellant
mother.
Thomas J. Miller, Attorney General, and Chandlor Collins, Assistant
Attorney General for appellee State.
Magdalena Reese, attorney and guardian ad litem for minor child.
Considered by Greer, P.J., and Schumacher and Ahlers, JJ. 2
AHLERS, Judge.
The mother appeals the termination of her parental rights to N.B., born in
2018. The family came to the attention of the Iowa Department of Human Services
(DHS) shortly after birth when the child tested positive for methamphetamine and
amphetamines. The newborn child was removed from the family home but
returned to the parents’ custody in February 2020.
The family again came to the attention of the DHS in October 2020 when
law enforcement executed a federal search warrant on the family home and
discovered large amounts of methamphetamine, large amounts of cash, and other
evidence of drug trafficking. The father was taken into custody and charged with
state and federal crimes. The mother was not charged after the search, though
she admitted using methamphetamine two days prior. The child was soon
removed from the parents’ custody again and then adjudicated a child in need of
assistance.
The mother initially made progress addressing her mental-health and
substance-abuse issues; however, she tested positive for methamphetamine in
May 2021, and she began inconsistently engaging with services after that. The
State petitioned to terminate parental rights, which proceeded to a hearing in
September 2021. The juvenile court terminated the mother’s parental rights under
Iowa Code section 232.116(1)(g) and (h) (2021).1 The mother appeals.
We review termination-of-parental-rights proceedings de novo.2 Such
1 The juvenile court also terminated the father’s parental rights. He does not appeal. 2 In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). 3
proceedings follow a familiar three-step process of determining (1) whether
statutory grounds for termination have been established, (2) whether termination
is in the best interest of the children, and (3) whether the statutory exceptions of
section 232.116(3) should preclude termination.3
First, the mother argues the State failed to prove a statutory ground for
termination. “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.”4 We choose to address termination under section
232.116(1)(h), which allows the juvenile court to terminate parental rights if it finds
all of the following:
(1) The child is three years of age or younger. (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (3) The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time.
The mother concedes the first two elements but disputes the third and
fourth. As to the third element, the mother only argues termination was rushed,
which “frustrates the purpose behind the statute.” “While we recognize the law
requires a ‘full measure of patience with troubled parents who attempt to remedy
a lack of parenting skills,’ Iowa has built this patience into the statutory scheme of
3 In re P.L., 778 N.W.2d 33, 40–41 (Iowa 2010) (reciting the three-step process); In re M.J.H.T., No. 17-1329, 2017 WL 6033879, at *2 (Iowa Ct. App. Dec. 6, 2017) (referring to the process as “a now familiar three-step analysis”). 4 In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). 4
Iowa Code chapter 232.”5 Eleven months elapsed between removal from the
mother’s care in October 2020 and the termination hearing in September 2021.
This removal was continuous and exceeds the six months required under section
232.116(1)(h)(3), which the mother apparently recognizes by focusing on the
“spirit” of the statute. We find the third element satisfied both legally and in spirit.
As to the fourth element, the mother argues she has been addressing her
mental-health and substance-abuse issues and her home is appropriate for the
child. The mother has a long history of substance abuse. While the mother initially
engaged in services, she began resisting testing and treatment around April 2021.
On May 5, the mother provided a urine sample that tested positive for
methamphetamine. Beginning the final week of May, the mother agreed to meet
with her substance-abuse and mental-health counselor weekly instead of monthly,
even though she denied drug use in spite of the recent positive test. However,
she did not comply with the agreement. Her attendance was sporadic, as she only
met with her counselor five times from June until the September termination
hearing. The mother blamed the counselor for canceling or changing her
appointments. The juvenile court was skeptical of these claims, and, on our de
novo review, we share that skepticism. Since the positive test in May, the mother
consistently ignored or outright refused DHS requests for drug testing, making
service providers, the juvenile court, and us unable to verify her claims of sobriety.
5In re C.B., 611 N.W.2d 489, 494 (Iowa 2000) (quoting In re D.A., Jr., 506 N.W.2d 478, 479 (Iowa Ct. App. 1993)). 5
The mother has also irregularly attended visitation. She did not schedule
as much visitation as she could and often arrived late for visits, interfering with the
child’s bedtime.
Considering the mother’s recent positive test, refusal to acknowledge her
drug use, inconsistent attendance in treatment, unverified sobriety, and unreliable
visitation, we find the fourth element satisfied, as the child could not be safely
returned to the mother. We agree the State proved the ground for termination
under section 232.116(1)(h).
Second, the mother argues termination is not in the child’s best interests.6
Here, the mother repeats her claims that she attends mental-health and
substance-abuse treatment, her home is appropriate for the child, and she is
nurturing during visitation. As explained above, the mother has inconsistently
engaged in treatment, testing, and visitation in the months leading up to the
termination hearing. We find termination is in the child’s best interests.
Finally, the mother argues she proved that a permissive factor under section
232.116(3) should preclude termination.7 The mother asserts her parental rights
should not be terminated because a relative has legal custody of the child 8 and
because she has “a uniquely positive bond and relationship” with the child.9
6 See Iowa Code § 232.116(2). 7 See In re A.S., 906 N.W.2d at 475–76 (noting that application of the exceptions is permissive, not mandatory, and holding that the parent claiming an exception under section 232.116(3) has the burden of proving its applicability). 8 See Iowa Code § 232.116(3)(a) (stating the court need not terminate parental
rights if “[a] relative has legal custody of the child”). 9 See Iowa Code § 232.116(3)(c) (stating the court need not terminate parental
rights if “termination would be detrimental to the child at the time due to the closeness of the parent-child relationship”). 6
We are not persuaded by the mother’s assertions. It is true that a relative
had custody of the child at the time of the termination hearing, but that fact alone
is not compelling.10 The evidence established that the child is much more bonded
to the relatives with whom the child has been placed than the child is with the
mother. This is not surprising, as this young child has lived with the relatives
significantly longer than with the mother. We see no persuasive evidence of a
special bond between mother and child, which is also not surprising considering
the child has only been in the mother’s care for about eight months during her three
years of life. The relatives with whom the child is placed have brought reliability,
stability, and consistency to the child while making sure all of her needs are met.
The same cannot be said for the mother. Accordingly, we decline to apply either
of the permissive factors relied upon by the mother, as doing so is not supported
by the evidence and would not be in the child’s best interests.
Finding the State proved a statutory ground for termination, termination is
in the child’s best interest, and no permissive factor prevents termination, we affirm
the termination of the mother’s parental rights.
AFFIRMED.
10 See In re C.K., 558 N.W.2d 170, 174 (Iowa 1997) (declining to apply the exception based on a relative having custody because “[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.”).