In the Interest of O.L. and R.L., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 24-1310
Filed January 9, 2025

IN THE INTEREST OF O.L. and R.L.,
Minor Children,

L.Y., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

Judge.

A mother appeals the termination of her parental rights to two children.

AFFIRMED.

Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, for appellant

mother.

Brenna Bird, Attorney General, and Natalie Hedberg, Assistant Attorney

General, for appellee State.

Erin Romar of Youth Law Center, Des Moines, attorney and guardian ad

litem for minor children.

Considered by Tabor, C.J., and Ahlers and Sandy, JJ.
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TABOR, Chief Judge.

A mother, Lea, appeals the juvenile court order terminating her parental

rights to O.L. (born in 2019) and R.L. (born in 2021). She contends that the State

failed to prove the statutory grounds for termination; termination is not in the

children’s best interests; and termination, in fact, would harm them because of their

close bond with her. She also asks for six more months to reunify her family and

mentions the possibility of establishing a guardianship with a relative or fictive kin.

Because Lea agreed at the termination trial that the children could not be

returned to her custody, and she was only asking for more time, we decline to

reverse on her statutory-grounds argument. See Iowa Code § 232.116(1)(h)

(2024). We also find that the State proved by clear and convincing evidence that

termination was in the children’s best interests. See id. § 232.116(2). And,

conversely, Lea did not prove by clear and convincing evidence that terminating

her parental rights would harm O.L. and R.L. because of the closeness of the

parent-child relationships. See id. § 232.116(3)(c). Nor were the children in the

legal custody of a relative. See id. § 232.116(3)(a).

As for more time, like the juvenile court, we credit the testimony of social

worker Taylor Dursky, who believed that delaying permanency would not benefit

the children because they were “struggling with the unknown.” And the parents

had not fully engaged in services to address their mental health or substance use.

In Dursky’s assessment, “the parents are in no better position today than when the
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case first came before the court.” On our de novo review, but deferring to the

juvenile court’s credibility findings, we affirm the termination order. 1

I. Facts and Prior Proceedings

By the time the juvenile court ordered that O.L. and R.L. be removed from

parental care in March 2023, they had been involved with the Iowa Department of

Health and Human Services for six months through safety plans.2 Under those

plans—stretching from October 2022 through February 2023—the parents agreed

that the children would be placed outside their home.3 But during those months,

the children tested positive for illicit drugs. When the parents provided drug

screens positive for cocaine in late January 2023, the State petitioned to have O.L.

and R.L. adjudicated as children in need of assistance.

The court granted the petition in April 2023. The court also granted the

mother’s motion to find that the department had not made reasonable efforts to

provide visitation. The court ordered the department to increase the frequency of

the children’s visits with their parents. By the May 2023 dispositional hearing, the

1
“We review termination proceedings de novo, examining both the facts and law
and adjudicating anew those issues properly preserved and presented.” In re A.R.,
932 N.W.2d 588, 589 n.1 (Iowa Ct. App. 2019). The juvenile court’s factual findings
do not bind us, but we give them weight, especially when deciding whether a
witness is to be believed. Id.
2 A safety plan is “a short-term, time-limited agreement entered into between the

department and a child’s parent or guardian designed to address signs of imminent
or impending danger to a child identified by the department.” Iowa Code
§ 232.79B.
3 The father had been selling drugs from the family home, and both parents

admitted using cocaine. Under the safety plans, the children stayed with their
paternal grandmother. But the court modified the children’s placement after the
removal hearing because of the department’s concerns about drug use in that
relative’s home. Ultimately the court terminated the father’s parental rights too; he
does not participate in this appeal.
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court determined that the visitation issue had been resolved. The court continued

out-of-home placement, though Lea was attending substance-use treatment and

mental-health therapy.

Lea’s progress was highlighted by Erin Romar, the children’s guardian ad

litem (GAL), in her August 2023 report to the court. Romar reported that Lea was

“following through on every recommendation,” and the GAL had no concerns about

the children’s safety in their mother’s care. Romar recommended reunification.

But that recommendation changed in October after Lea tested positive for cocaine.

The GAL advised the court of her new position:

The undersigned is very sad to report that we can no longer
support return at this time. There is no doubt that the mother loves
her children very very much, and works very hard to support them as
best as possible, and continues to participate in her recovery and
treatment. However, her most recent patch came back positive and
she is ADAM[A]NT she did not use but that she was around people
who had used while at a weekend camping trip.[4]
Because the mother continues to surround herself, or make
decisions to be around those who use, it is clear she still has a lot to
learn about protective decision making, safe decision making on who
she spends her time with, and the possibility and likelihood of relapse
when being around others who use while she is sober.

In its November 2023 review order, the court found that Lea’s explanation

for the positive drug test lacked credibility. The court also bemoaned Lea’s

continued association with the children’s father: “If [she] is serious about her own

sobriety, she should not be involved in a relationship with someone who is actively

using.” Lea’s substance use was also an ongoing issue for the department. It

reported three sweat patches positive for cocaine that fall. But it also reported four

4 The department described the “camping trip” as “an outdoor rave” where
substance use was “commonplace.”
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negative patches and five negative urinalysis tests. And Lea missed a screening

in January 2024 because of work commitments. In its February 2024 report, the

department expressed concern “that Lea has not taken any accountability for her

use and continues to deny she used cocaine. Lea continues to report that she is

not and has not used any cocaine and does not understand why her patches have

been positive.” The court embraced the department’s view in its permanency

order, finding that Lea had failed “to meaningfully address her own substance use

issue” or “take accountability” for the positive test results. The court was also

troubled by Lea’s admission that she continued to drink alcohol socially, despite

cautions from substance-use providers.

In March 2024, the State petitioned to terminate parental rights. The court

heard evidence in May. In her direct examination, Lea agreed “that the children

could not return to [her] care today.” But she asked for an extension of six months

so that she could be in position to resume custody. In July, the court terminated

her parental rights under Iowa Code section 232.116(1), paragraphs (f) and (h).

She appeals.

II. Analysis

Terminations follow a three-step analysis. In re P.L., 778 N.W.2d 33, 40

(Iowa 2010). First, the juvenile court must decide whether the State proved one of

the grounds listed for termination in section 232.116(1). Id. After finding that proof

by clear and convincing evidence, the court must consider if termination is in the

children’s best interests by applying the factors in section 232.116(2). Id. Then, if

the State meets those two prongs, the court must see if any circumstances in

section 232.116(3) compel forgoing termination. Id. at 41.
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A. Statutory Grounds

Lea first argues that the State failed to prove the grounds for termination

under subparagraphs (f)(4) and (h)(4) of section 232.116(1). In her petition on

appeal, she asserts there was not “clear and convincing evidence presented at

trial to support that the children cannot be returned to her at the present time.” See

In re M.H., 12 N.W.3d 159, 161 (Iowa Ct. App. 2024) (interpreting “at the present

time” to mean at the time of the termination trial). In support, she cites “her

extensive involvement with services throughout the life of the case.” This

argument differs from her position at trial, where she conceded that she was not

ready to resume custody of O.L. and R.L. Given her concession at trial—together

with the State’s proof of her unresolved substance use—we affirm termination on

these grounds.

B. Best Interests

Lea next argues that more time to reunify rather than termination of her

parental rights is in the children’s best interests under the factors in section

232.116(2). In deciding best interests, we give primary consideration to the

children’s safety, to the best placement for furthering their long-term nurturing and

growth, and to their physical, mental, and emotional conditions and needs. Iowa

Code § 232.116(2). To allow a parent more time, the juvenile court must find that

the need for removal will be gone at the end of a six-month extension. See Iowa

Code § 232.104(2)(b). This record does not support a delay in permanency. See

In re W.T., 967 N.W.2d 315, 323 (Iowa 2021) (explaining that parents must not

only show that the impediments to placing children with them will not exist in six

months, but also that further delay is in the children’s best interests).
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To that point, social worker Dursky testified that termination was preferable

to an extension:

The children deserve permanency. They’ve been out of their
parents’ care for over a year now, and they are struggling with some
of their emotions going back and forth not knowing where they’re
going to live, and the parents still have their substance-use concerns
to address, the ongoing mental-health concerns, along with their
relationship.

We credit her sentiments and agree with her perception of what is in O.L. and

R.L.’s best interests. Thus, the court properly determined that further delay was

not warranted.

C. Permissive Exceptions to Termination

Lea also argues that we should apply a permissive exception to preclude

termination. See Iowa Code § 232.116(3). Once the State has proved a ground

for termination, it is up to the parent to show that the court should apply an

exception. In re A.S., 906 N.W.2d 467, 476 (Iowa 2018). Lea cites paragraph (a),

which allows the court to avoid terminating parental rights if a relative has legal

custody of the children, and paragraph (c), which states that the court need not

terminate if there 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.” Iowa Code § 232.116(3).

Invoking paragraph (a), Lea notes that the children were living with fictive

kin, and the department was exploring placement with an aunt. 5 But fictive kin

5
In her petition on appeal, Lea mentions that the court “could have granted a
guardianship with one of these individuals.” The juvenile court did not rule on any
request for a guardianship, so error is not preserved. Even if we bypassed that
deficiency, a guardianship is not the preferred method for permanency. See A.S.,
906 N.W.2d at 477 (“[A] guardianship is not a legally preferable alternative to
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does not fall under the definition of relative in chapter 232. See Iowa Code

§ 232.2(22), (56). And the children were not in the legal custody of the aunt. See

In re A.B., 956 N.W.2d 162, 170 (Iowa 2021).

As for paragraph (c), Lea failed to prove that termination would harm O.L.

and R.L. based on the closeness of their relationship with her. True, the record

shows that Lea was bonded with the children. As GAL Romar reported, “She is

calm, supportive, and it is clear that her children love her very much and feel safe

with her.” But “our consideration must center on whether the child[ren] will be

disadvantaged by termination, and whether the disadvantage overcomes [the

parent’s] inability to provide for [their] developing needs.” In re D.W., 791 N.W.2d

703, 709 (Iowa 2010). Given how long they have been out of the home, the

struggles the children have with the uncertainty of their future placement, and the

lingering concerns about their mother’s substance use, we decline to apply the

permissive exception.

AFFIRMED.

termination.”). And a guardianship cannot be a permanency option unless
convincing evidence shows termination would not be in the children’s best
interests. See Iowa Code § 232.104(2)(d)(2), (4)(a). Here, we have already
concluded termination is in the children’s best interests.