In the Interest of J.R. and E.W., Minor Children, K.P., Mother

IN THE COURT OF APPEALS OF IOWA

No. 17-0443
Filed May 17, 2017

IN THE INTEREST OF J.R. and E.W.,
Minor Children,

K.P., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Benton County, Susan F. Flaherty,

Associate Juvenile Judge.

A mother appeals from the order terminating her parental rights.

AFFIRMED.

Patricia J. Meier of Nidey Erdahl Tindal & Fisher, P.L.C., Cedar Rapids,

for appellant mother.

Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney

General, for appellee State.

Robert W. Davison, Cedar Rapids, for minor children.

Robert B. Fischer of Robert B. Fischer Law Firm, Vinton, for father of J.R.

Considered by Danilson, C.J., and Potterfield and Bower, JJ.
2

DANILSON, Chief Judge.

A mother appeals the termination of her parental rights,1 arguing

termination is not in the children’s best interests due to the closeness of the

parent-child bond and the fact that the children are in a relative placement.

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

110 (Iowa 2014).

“Termination of parental rights under chapter 232[2] follows a three-step

analysis.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). First, we determine if a

ground for termination under section 232.116(1) has been established. Id. at

706-07. We then apply the statutory 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. Id. at 707. Finally, we consider if any statutory exceptions set

out in section 232.116(3) should serve to preclude termination of parental rights.

Id.

The mother does not contest that grounds for termination exist, 3 so we

need not discuss this step. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).

The statute informs us that in determining whether termination is in the

children’s best interests, we are to “give primary consideration to the child[ren]’s

safety, to the best placement for furthering the long-term nurturing and growth of

the child[ren], and to the physical, mental, and emotional condition and needs of

the child[ren].” Iowa Code § 232.116(2). Determining the best interests of the

1
J.R.’s father’s parental rights are not at issue. E.W.’s father is unknown.
2
All statutory references are to the 2016 Iowa Code.
3
The juvenile court terminated the mother’s parental rights pursuant to Iowa Code
section 232.116(1)(f) (as to J.R.), (1)(h) (as to E.W.), and (1)(l) (as to both).
3

children “requires considering what the future holds for the child[ren] if returned

to the parents.” In re C.K., 558 N.W.2d 170, 172 (Iowa 1997). “When making

this decision, we look to the parent[’s] past performance because it may indicate

the quality of care the parent is capable of providing in the future.” Id.

Here, the mother continues to struggle with a long history of unresolved

mental-health and substance-abuse issues, which struggle places the children at

risk of inadequate supervision. The mother contends: “Given the closeness of

the relationship between [the mother] and the children, and the fact that [the

mother] has only just begun to seriously address her mental health, it would be in

the children’s best interests to afford [the mother] several more months to make

progress.” We disagree.

The children have been waiting longer than the statutory time frame, and

the mother has only “just begun” to address her issues. “[O]ur legislature has

carefully constructed a time frame to provide a balance between the parent’s

efforts and the child[ren]’s long-term best interests.” D.W., 791 N.W.2d at 707.

Waiting for fourteen months to make an effort is too late. We adopt the juvenile

court’s findings:

[The mother] has been given sufficient time to demonstrate
that she can maintain sobriety and achieve stable mental health.
Over the course of the past fourteen months, she has not yet
followed through with the most basic action steps of consistently
participating in substance abuse treatment and mental health
counseling. The children would continue to be at imminent risk of
harm if returned to the care of their mother due to [the mother]’s
inability to establish a sufficient period of sobriety or stable mental
health. [The mother] acknowledged in her testimony that, if using
methamphetamine, she is not a safe caretaker for her children. In
addition to becoming “edgy,” her memory is affected by
methamphetamine use. [The mother] testified that she plans to
begin mental health counseling, but has not yet scheduled an
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appointment with her chosen counselor. She currently has
medication prescribed when she was at Horizons for inpatient
treatment in early January, but she has not scheduled an
appointment yet to obtain a refill, testifying that the doctor told her
she didn’t need to until she was almost out of medication. Clearly,
based on the lack of progress by [the mother], if the children were
returned to her custody they would be subjected to the same
adjudicatory harms that led to their removal from their mother's
custody.
[The mother] acknowledged that she is not yet in a position
to safely resume care of her children. She knows that she needs
more time to achieve sustained sobriety and also to address her
co-occuring mental health treatment needs and resolution of past
trauma. She acknowledges that her current home is not safe for
the children. She has no employment and no source of income,
relying on her mother for financial support. [The mother] has asked
for additional time to continue to work on these issues. However,
after reviewing the record and [the mother]’s lack of any real,
sustained progress over the course of the past fourteen months,
the court is unable to find a reasonable basis to believe that
additional time would allow [the mother] to safely resume care of
the children anytime in the reasonably near future.

Considering the physical, mental, and emotional needs of these children, asking

them to continue waiting is not in the children’s best interests.

We also disagree with the mother’s claims that placement of the children

with a relative and the close bond between mother and children make termination

unnecessary. Section 232.116(3) states: “The court need not terminate the

relationship between parent and child[ren]” if the court finds “[a] relative has legal

custody of the child[ren]” or if “[t]here is clear and convincing evidence that

termination would be detrimental to the child[ren] at the time due to the closeness

of the parent-child relationship.” Iowa Code § 232.116(3)(a), (c). “‘The factors

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

mandatory,’ and the court may use its discretion, ‘based on the unique

circumstances of each case and the best interests of the child[ren], whether to
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apply the factors in this section to save the parent-child relationship.’” A.M., 843

N.W.2d at 113 (quoting In re D.S., 806 N.W.2d 458, 474-75 (Iowa Ct. App.

2011)).

Here, the legal custody of the children was with the department of human

services. Because legal custody is with the department, section 232.116(3)(a)

does not apply. See id. And while the juvenile court noted the bond between

mother and J.R. may be strong, it also noted the bond “may not be a healthy

bond.” We agree there is a strong bond but the bond is with a mother who has

failed to begin mental-health counseling, has not been able to complete

substance-abuse treatment, and has shown little progress in fourteen months.

We do not find the parent-child bond here precludes termination of the mother’s

parental rights. We therefore affirm.

AFFIRMED.