In the Interest of L.W. and D.T., Minor Children, C.W., Father, J.B., Mother

IN THE COURT OF APPEALS OF IOWA

No. 15-0720
Filed July 9, 2015

IN THE INTEREST OF L.W. and D.T.,
Minor Children,

C.W., Father,
Appellant,

J.B., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County, Annette

Boehlje, District Associate Judge.

A mother and father appeal separately from the order terminating their

parental rights. AFFIRMED ON BOTH APPEALS.

Charles H. Biebesheimer of Stillman Law Firm, Clear Lake, for appellant
father.
Michael J. Moeller of Sorensen Law Office, Clear Lake, for appellant
mother.
Thomas J. Miller Attorney General, Kathrine Miller-Todd, Assistant
Attorney General, Carlyle D. Dalen, County Attorney, and Nichole M. Benes,
Assistant County Attorney, for appellee State.
Crystal L. Ely of Young Law Office, Mason City, for minor children.

Considered Vaitheswaran, P.J., Doyle, J., and Mahan, S.J.*

Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MAHAN, S.J.

A mother and father appeal separately from the order terminating their

parental rights. The mother has failed to show (1) there was not sufficient

evidence to support termination of her parental rights, (2) termination was not in

the children’s best interests; or (3) the juvenile court should have exercised its

discretion to decide not to terminate her parental rights. For the father, no

exceptions militate against termination of his parental rights. We affirm the

decision of the juvenile court.

I. Background Facts & Proceedings.

Jennifer is the mother of D.T., born in 2000, and L.W., born in 2006.

Christopher is the father of L.W.1 Concerns arose about domestic violence in the

parents’ relationship and physical abuse of the children. L.W. told social workers

Christopher “hurt with his fists.” The State filed petitions alleging the children

were in need of assistance (CINA). After a hearing, the juvenile court entered an

order on December 13, 2013, adjudicating the children as CINA pursuant to Iowa

Code section 232.2(6)(c)(2) (2013), based on a finding that continuation in the

home would “expose both children to physical violence on them and their

mother.” D.T. was placed with his paternal grandmother, Christine. L.W. was

placed with his maternal grandmother, Donna.

Jennifer and Christopher were ordered to participate in family-centered

services, individual counseling, and random drug testing. They were also each

ordered to complete a mental health evaluation. They participated in services,

but made little progress because they prioritized their relationship with each other

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The father of D.T. is deceased.
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rather than focusing on the needs of the children. They continued to deny or

minimize the level of violence in the home. They lived together until October

2014, when Christopher spent thirty days in jail for failure to pay child support.

Jennifer moved in with her mother, Donna, where L.W. also resided. After

Christopher was released, the parents continued to spend time together,

although they no longer lived together, and Jennifer supported Christopher

financially.

Jennifer and Christopher were granted visitation at the discretion of the

Iowa Department of Human Services. Jennifer was very inconsistent in her

visitation with D.T. Since moving in with Donna in October 2014, Jennifer has

seen L.W. every day. Donna, however, provides the parenting for L.W., including

getting him up for school and making his breakfast. Jennifer saw L.W. for only a

short period of time after he came home from school, before she left for work.

Christopher moved to Waterloo in November 2014; he had had no face-to-face

visitation with L.W. since his move, but continued to have telephone contact.

On December 4, 2014, the State filed petitions seeking termination of

Jennifer’s parental rights to D.T. and L.W. and Christopher’s parental rights to

L.W. A termination hearing was held on March 27, 2015. The juvenile court

terminated the parents’ rights under section 232.116(1)(f). The court found

Christopher was unwilling to admit or address the issue of domestic violence and

Jennifer was unable or unwilling to protect the children from Christopher. The

court concluded termination was in the children’s best interests. The court

considered the exceptions in section 232.116(3), but determined “no exceptions
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militate against termination.” Jennifer and Christopher have separately appealed

the termination order.

II. Standard of Review.

The scope of review in termination cases is de novo. In re D.W., 791

N.W.2d 703, 706 (Iowa 2010). Clear and convincing evidence is needed to

establish the grounds for termination. In re J.E., 723 N.W.2d 793, 798 (Iowa

2006). Where there is clear and convincing evidence, there is no serious or

substantial doubt about the correctness of the conclusion drawn from the

evidence. In re D.D., 653 N.W.2d 359, 361 (Iowa 2002). The paramount

concern in termination proceedings is the best interest of the child. In re L.L.,

459 N.W.2d 489, 493 (Iowa 1990).

III. Jennifer.

A. Jennifer contends there is not sufficient evidence in the record to

support termination of her parental rights. She first asserts L.W. was not

removed from her physical custody for at least twelve months. The children were

removed from her care on December 13, 2013. While Jennifer moved in with

Donna in October 2014, where L.W. was also living, L.W. was never returned to

Jennifer’s care. L.W. remained in the physical care of his maternal grandmother,

Donna, throughout the juvenile court proceedings.

Jennifer also asserts the State failed to show, by clear and convincing

evidence, that the children could not be safely returned to her care. She states

she has now separated from Christopher and there would be no harm to the

children if they were placed in her care. The juvenile court found the parents

were not credible in their claims they were no longer together. The court found,
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“It is clear that Chris will always be Jennifer’s priority, not the boys or even her

own safety. She is emotionally dependent upon Chris.” The evidence shows

neither Jennifer nor Christopher has addressed the issue of domestic violence in

their relationship. We agree with the juvenile court’s conclusion that there is

clear and convincing evidence Jennifer would be unable to keep the children

safe. The court properly determined Jennifer’s parental rights should be

terminated under section 232.116(1)(f).

B. Jennifer claims termination of her parental rights is not in the best

interests of the children. Once the juvenile court has determined one of the

grounds for termination under section 232.116(1) has been proved, the court

then considers whether to terminate, looking at the factors in section 232.116(2).

In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). Under section 232.116(2), we

consider a child’s best interests, giving “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.”

We agree with the juvenile court’s conclusion that termination of Jennifer’s

parental rights is in the best interests of the children. Jennifer’s first priority is her

relationship with Christopher. Although she participated in counseling, she

remained unable to meet the needs or to attend to the safety of the children. “It

is well-settled law that we cannot deprive a child of permanency after the State

has proved a ground for termination under section 232.116(1) by hoping

someday a parent will learn to be a parent and be able to provide a stable home

for the child.” Id. at 41.
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C. Jennifer asserts the juvenile court should have applied the exceptions

in section 232.116(3)(a), “A relative has legal custody of the child,” and (c),

“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.” If

an exception under section 232.116(3) applies the court, in its discretion, may

decide not to terminate. In re A.M., 843 N.W.2d 100, 113 (Iowa 2014). The

application of the factors in section 232.116(3) is permissive, not mandatory. Id.

In exercising its discretion, the court should consider the unique circumstances of

the case and the best interests of the child. Id. We concur in the court’s

conclusion that the exceptions do not militate against termination in this case

based on the children’s need for safety and stability.

We affirm the juvenile court’s termination of Jennifer’s parental rights to

D.T. and L.W.

IV. Christopher.

Christopher raises only one issue on appeal. He asserts the court should

have decided not to terminate his parental rights to L.W. based upon the

exceptions found in section 232.116(3)(a) and (c). We have already considered

these exceptions as they applied to Jennifer. We likewise conclude the juvenile

court did not abuse its discretion in its determination that the exceptions in

section 232.116(3) did not militate against termination of Christopher’s parental

rights. The court stated:

Although [L.W.] is bonded to his parents, neither one is
appropriate to care for him at this time. Due to the dynamics of
domestic violence, which neither parent has resolved or even
admitted, the child would not be protected in his mother’s care from
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his father, nor would his father be appropriate to care for him due to
the father’s aggression.

We affirm the juvenile court’s termination of Christopher’s parental rights

to L.W.

AFFIRMED ON BOTH APPEALS.