In the Interest of T.B., Minor Child, M.S., Mother

• Court: Court of Appeals of Iowa
• Decided: February 25, 2015
• Docket: 14-1885
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-1885 Filed February 25, 2015

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

M.S., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Winnebago County, Karen K. Salic,

District Associate Judge.

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

Charles H. Biebesheimer of Stillman Law Firm, Clear Lake, for appellant.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant

Attorney General, and Adam Sauer, County Attorney, for appellee.

Theodore Hovda, Garner, for father.

Andrew Gordon of Bakke & Gordon Law Offices, Forest City, attorney and

guardian ad litem for minor child.

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

MULLINS, J.

The mother appeals from termination of her parental rights. 1 She

contends the juvenile court erred in finding the exceptions under Iowa Code

section 232.116(3)(a) and (c) (2013) did not apply to prevent termination. We

affirm.

We review termination-of-parental-rights proceedings de novo. In re A.M.,

843 N.W.2d 100, 110 (Iowa 2014). We give weight to the factual determinations

of the juvenile court, especially with regard to witness credibility, but are not

bound by them. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Our primary

consideration is the best interest of the child. Id. at 776.

Section 232.116(3) provides the court need not terminate parental rights if,

under section 232.116(3)(a), “[a] relative has legal custody of the child”; or, under

232.116(3)(c), “[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.” “‘The factors weighing against termination in section

232.116(3) are permissive, not mandatory.’” A.M., 843 N.W.2d at 113 (quoting In

re D.S., 806 N.W.2d 458, 474-75 (Iowa Ct. App. 2011)). “[T]he court may use its

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. The juvenile court found neither of the exceptions

applied in this case.

1 The father’s rights were also terminated. He does not appeal. 3

With respect to subsection (3)(a), “[a] relative has legal custody of the

child,” the juvenile court found, “It is true that [T.B.] is placed with relatives [the

paternal grandparents]; however, she is not even two years old yet, and to keep

her in a non-permanent living situation for the remaining 16+ years of her life is

needlessly harmful to her.” We agree with the juvenile court. T.B. is not yet two

years old and has spent a year out of her mother’s care. The mother does not

challenge the court’s finding that the evidence supports the statutory grounds for

termination. Under the circumstances, it is not in T.B.’s best interest to delay

permanency because she is placed with the paternal grandparents.2 Therefore,

we do not apply the exception to prevent termination.

With respect to subsection (3)(c), “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,” the juvenile court found

[W]hile [T.B.] does appear to enjoy spending time with her parents, [the mother] for an unfortunately long time did not regularly exercise visitation. Of late she has been much better in that area, but neither her or [the father’s] interactions with [T.B.] are those of a parent and child, but rather simply someone [T.B.] likes to play with when she is presented to her. This does not demonstrate that they have a bond, or at the very least a bond so strong that legally severing the parent-child relationship would be harmful or detrimental to [T.B.]

2 The mother complains here, as she did before the juvenile court, that the father has an unfair advantage in that his parents have custody of T.B. and therefore he will be able to see her despite having his parental rights terminated, and the mother will not. The juvenile court found the paternal grandparents complied with the visitation and supervision schedule with their son and there is no reason to believe they will not comply with future court orders regarding his contact with T.B. We agree and see no reason to disturb this finding. 4

We note, as did the juvenile court, that the mother was very sporadic about

attending visitation with T.B. until close to the termination hearing. There was a

six-month period during this case when the mother did not see T.B. at all,

followed a few months later by another one-month stretch of no contact. In all,

more than half the time T.B. was out of the mother’s care, the mother had no

contact with T.B. T.B. was originally removed from the mother’s care due to

substance abuse problems which are still unresolved. The mother has a long

history of substance abuse with multiple relapses and numerous failed drug tests

during the life of this case. T.B. has been with the paternal grandparents for half

her life. They are approved to be considered to adopt her. She has been doing

well in their home. On our de novo review and giving deference to the credibility

determinations of the juvenile court, we cannot find that severing the parent-child

relationship would be detrimental to T.B.’s best interests.

AFFIRMED.