In the Interest of E.S., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 23-0590
Filed June 21, 2023

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

S.S., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Butler County, Peter B. Newell,

District Associate Judge.

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

Elizabeth M. Wayne of Papenheim Law Office, Parkersburg, for appellant

mother.

Brenna Bird, Attorney General, Anagha Dixit, Assistant Attorney General,

for appellee State.

Mark Milder, Denver, attorney and guardian ad litem for minor child.

Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
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AHLERS, Presiding Judge.

The juvenile court terminated the parental rights of the parents of E.S., a

child born in 2021. Only the mother appeals.

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).

The juvenile court terminated the mother’s rights under Iowa Code

section 232.116(1)(h) (2023), which authorizes termination when

(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 only challenges the fourth element by arguing the State failed to

establish the child could not be returned to her care. As a preliminary observation,

we note that section 232.116(1)(h)(4) requires proof that the child cannot be

returned to a parent’s custody not care. We do not make this observation about

the blurring of the distinction between care and custody as a criticism of the mother.

Indeed, we have most likely contributed to the blurring by being imprecise on the

distinction at times. See, e.g., In re K.H., No. 22-0964, 2022 WL 3421910, at *2–
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3 (Iowa Ct. App. Aug. 17, 2022) (referring to the fourth element as imposing a

requirement that the child cannot be returned to the care of a parent); In re C.V.,

No. 18-0851, 2018 WL 4361061, at *1–2 (Iowa Ct. App. Sept. 12, 2018) (same).

But, even viewing the mother’s claim as asserting the child could have been

returned to her custody, we are not persuaded by her claim.

When assessing whether the fourth element is satisfied, we do not consider

what might happen in the future; rather, we consider only whether the child could

be returned to the parent’s custody at the time of the termination hearing. See

Iowa Code § 232.116(1)(h)(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.”); 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).

The mother’s petition on appeal suggests her purported ability to assume custody

is qualified on her ability to secure “family assistance” to help care for the child and

concedes “at the time of the termination hearing there was not family that could

appropriately assist.” This concession suggests the mother is aware she was not

equipped with the necessary parenting skills to safely assume custody of the child

at the time of the termination hearing. Our de novo review supports that

conclusion.

This family came to the attention of the Iowa Department of Health and

Human Services following the child’s birth due to hospital workers’ concerns

regarding the mother’s ability to care for the child. She has “a number of personal

challenges including a full-scale IQ of 61[,] indicating a mild intellectual disability[,]
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and anxiety.” The mother admitted to a caseworker that it is difficult for her to

parent the child and she does not always know how to meet the child’s needs.

The mother requires direct instruction to complete basic, everyday tasks in

order to take care of herself. She requires direction on how to clean her home.

She also requires instruction on how to fold clothing and how to read cooking

instructions on a product container. Her need for guidance carries over to visits

with the child. During visits, the mother requires “repeated skill building and

learning about appropriate foods, appropriate activities, [and] safety concerns in

the environment.” She “needs reassurance as to her decisions regarding feeding

and diapering [the child]. She requires reminders about safe care and hygiene

around [the child] and finds prompts on age-appropriate interaction helpful.” The

mother “often verbalizes understanding and intent but continues to struggle with

implementation and follow through.”

Given the mother’s need for direct instruction to complete the most basic

everyday tasks, parenting or otherwise, we believe the mother is not equipped with

the necessary skills to be able to safely parent the child. We agree with the juvenile

court that the child could not be safely returned to the mother’s custody.

Accordingly, a statutory ground authorizing termination is satisfied.

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

interests. She claims termination is not in the child’s best interests because they

are bonded, implicating a permissive exception to termination.1 Consideration of

1 Section 232.116(3)(c) allows the court to forgo termination when “[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.”
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the parent-child bond is not a part of our best-interests analysis. See In re A.B.,

No. 23-0235, 2023 WL 3335422, at *2 (Iowa Ct. App. May 10, 2023) (“In

considering the best interests of the children, we are required to use the best-

interests framework set out by our legislature. And that framework does not

include the word ‘bond.’” (internal citation omitted)). Instead, 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)). So we will first

consider the child’s best interests and then consider the parent-child bond as a

potential exception to termination.

We conclude termination is in the child’s best interests. The mother

struggles to meet her own basic needs, and she cannot meet the most basic needs

of a child. And this child, in particular, requires attentive care. She is delayed in

her developmental milestones. The child requires both speech and physical

therapy on a weekly basis. We do not believe the mother can provide the diligent

and consistent parenting the child requires. Conversely, the child is attached to

her foster family, and she is well-cared for in the foster family’s home. The child is

also adoptable. Termination of the mother’s rights is a necessary step to adoption

with a family that can meet the child’s unique needs. We agree termination of the

mother’s rights is in the child’s best interests.

Finally, we address the mother’s contention that we should nonetheless

forgo termination due to her bond with the child. See Iowa Code § 232.116(3)(c).

It is her burden to establish applicability of an exception to termination. See In re
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A.S., 906 N.W.2d 467, 475–76 (Iowa 2018). There is no doubt the mother loves

the child, and the child shares an attachment to the mother. Yet the mere

“existence of a bond is not enough.” See In re A.B., 956 N.W.2d 162, 169 (Iowa

2021). Instead, the bond must be so significant that severing it would be manifestly

detrimental to the child. Id. The record does not establish a bond of this

magnitude. While there is a bond between mother and child, the child is primarily

attached to her foster family. Based on this record, the mother has not met her

burden to establish that termination of her rights would be detrimental to the child

such that we should apply the close-bond exception of section 232.116(3)(c).

AFFIRMED.