In the Interest of S.B., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 18-0891
Filed July 18, 2018

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

M.B., Mother,
Appellant.
________________________________________________________________

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

Associate Juvenile Judge.

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

Kristin L. Denniger, Cedar Rapids, for appellant mother.

Thomas J. Miller, Attorney General, and John B. McCormally, Assistant

Attorney General, for appellee State.

Angela M. Railsback of Railsback Law Office, Cedar Rapids, guardian ad

litem for minor child.

Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

M.B. appeals the termination of her parental rights to her child S.B., born in

February 2017.1 She challenges the grounds for termination found by the juvenile

court, and she contends termination of her parental rights is not in the child’s best

interests. Upon our review, we affirm.

I. Standard of Review and Statutory Framework.

Parental rights may be terminated under Iowa Code chapter 232 (2017) if

the following three conditions are true: (1) a “ground for termination under section

232.116(1) has been established” by clear and convincing evidence, (2) “the best-

interest framework as laid out in section 232.116(2) supports the termination of

parental rights,” and (3) none of the “exceptions in section 232.116(3) apply to

preclude termination of parental rights.”2 In re A.S., 906 N.W.2d 467, 472-73 (Iowa

2018). Our review is de novo, which means we give the juvenile court’s findings

of fact weight, especially the court’s credibility assessments, but we are not bound

by those findings. See id. at 472. “For evidence to be ‘clear and convincing,’ it is

merely necessary that there be no serious or substantial doubt about the

correctness of the conclusion drawn from it.” Raim v. Stancel, 339 N.W.2d 621,

624 (Iowa Ct. App. 1983); see also In re M.W., 876 N.W.2d 212, 219 (Iowa 2016).

1
The parental rights of the child’s father, S.F., were also terminated at that time, and he
does not appeal. We note that both the mother and the father have other children from
previous relationships, and although the mother’s and the father’s parental rights with
respect to those children are not at issue here, circumstances involving the father’s other
children are relevant to this case. We will identify those children as such when referring
to them, but we note our reference to “the mother” refers only to M.B.
2
Because the mother does not challenge the juvenile court’s determination that none of
the exceptions in section 232.116(3) apply to preclude termination of her parental rights,
we need not discuss that consideration. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).
3

II. Discussion.

A. Grounds for Termination.

The juvenile court found the State proved the grounds for termination set

forth in Iowa Code section 232.116(1) paragraphs (h) and (l), which the mother

contests on appeal. When the juvenile court finds more than one ground for

termination under section 232.116(1), “we may affirm . . . on any ground we find

supported by the record.” In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). We focus

our analysis on paragraph (h).

With regard to section 232.116(1)(h), the mother challenges the sufficiency

of the evidence supporting the fourth element of the paragraph—that the child

could not be returned to her 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.”). To satisfy its burden of proof, the State must

establish “[t]he child cannot be protected from some harm which would justify the

adjudication of the child as a child in need of assistance.” Id. § 232.102(5)(a)(2);

accord In re A.M.S., 419 N.W.2d 723, 725 (Iowa 1988). “At the present time” refers

to the time of the termination hearing. See In re A.M., 843 N.W.2d 100, 111 (Iowa

2014). The mother argues the State failed to prove that element, explaining she

“indicated at trial that her wish for the case was to have [the child] returned to her

care and to continue to address the [Iowa Department of Human Services’s

(Department)] concerns by attending a residential treatment center designed for

mothers with children.” (Emphasis added.)
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The mother admitted the child could not be returned to her care at the time

of the hearing. At the hearing, she was asked, “Would you agree that you are not

in any position to have custody of your daughter returned to you today?” She

responded, “Returned to me today, no.” The mother admitted she had not met all

of the Department’s requirements needed to be completed before the child’s

custody could be returned to her. Given the circumstances, we believe this is

sufficient evidence for the establishment of element four of section 232.116(1)(h).

See In re Z.G., No. 16-2187, 2017 WL 1086227, at *4 n.5 (Iowa Ct. App. Mar. 22,

2017) (collecting cases in which termination of parental rights was affirmed

because a parent admitted the child or children could not be returned to the

parent’s care at the time of the termination hearing).

In any event, there is scant evidence in the record showing the mother made

any real attempts to address the Department’s concerns during the pendency of

the case. The child tested positive for illegal substances at birth, so the mother

knew from the start that addressing substance abuse was critical to reunification

with the child. At the termination-of-parental-rights hearing on December 1, 2017,

the mother admitted she had used methamphetamine in August 2017, but she

maintained no other usage since the birth of S.B. Yet, she had not submitted to

any drug testing since April 2017, and she gave implausible excuses for her failure

to follow through with the tests as directed by the juvenile court. She admitted she

had no valid reason for not drug testing from April 2017 to the time of the hearing,

even though she was aware it was crucial she show the court that she was clean

and sober in order to have any hope of the return of her child or even unsupervised

time with the child. The mother also claimed she was attending one-on-one
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substance abuse treatment sessions with a counselor, but the Department’s

caseworker learned she had been discharged from that treatment in November

2017 after missing numerous appointments. She and the father lived together, but

she maintained she was not aware of whether the father was using illegal

substances. The mother trivialized the fact that police had been called to her and

the father’s residence numerous times during the year. Ultimately, the mother did

not evidence any dedication to tackling her substance abuse issue at the

December 2017 hearing.

Then, a week after that hearing, the child’s guardian ad litem (GAL)

requested the juvenile court reopen the record because the GAL had “been

presented with new and critically important information that ha[d] significant

bearing on the court’s determination of the issues before it in this case.” The court

granted the GAL’s request, and a continuation of the termination-of-parental-rights

hearing was held January 10, 2018. Evidence presented that day showed police

had responded to a call concerning injuries to the father’s three-year-old child on

November 26, 2017, just days before the other hearing. The responding officer

learned the father’s three children had a visit with the father at the father and the

mother’s residence. The three-year-old child returned from the visit covered in

bruises, and the father and the mother gave conflicting and inconsistent stories as

to how the three-year-old child was injured while in their care. Neither the father’s

nor the mother’s story accounted for all of the injuries and bruises the three-year-

old child sustained, and the three-year-old child’s evaluating doctor concluded the

injuries had been inflicted rather than occurring accidentally. Additionally, two of

the father’s three children tested positive for methamphetamine at high levels
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following the visit. The mother claimed that, while doing construction in the home,

one of the walls had been opened up, and there had been methamphetamine in

the walls and in the vents. The Department’s social worker did not find that

plausible and opined that to have tested positive at such high levels, the children

would have had to, somehow, ingested the methamphetamine. The social worker

believed the father and the mother had actively used methamphetamine in the

presence of those children.

Given the mother’s failure to provide drug tests, coupled with her inaccurate

reporting of her participation in the substance-abuse treatment program and her

improbable claims of how the father’s children were exposed to high levels of

methamphetamine while in her and the father’s home, the mother’s

“enthusiasm . . . and pledge[] to follow the treatment recommendations” now is

simply not credible. There is no question the child could not be returned to the

mother’s care at the time of the termination-of-parental-rights hearing.

Consequently, we find clear and convincing evidence that grounds for termination

of the mother’s parental rights were established under section 232.116(1)(h).

B. Best Interests.

The mother also argues termination of her parental rights was not in the

child’s best interests, pointing out that she and the child share a strong bond. That

bond cannot overcome the child’s need for permanency when the mother has not

put her child’s needs first and made a real effort to achieve sobriety.

Time “is a critical element” in termination proceedings, see in re C.B., 611

N.W.2d 489, 495 (Iowa 2000), and parents have a limited time frame, based upon

the child’s age, to demonstrate their ability to be parents. See A.S., 906 N.W.2d
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at 474. For children aged three and under, the legislature has determined that

time frame is six months. See Iowa Code § 232.116(1)(h)(3); A.S., 906 N.W.2d at

473-74. After the statutory time period for termination has passed, termination is

viewed with a sense of urgency. See C.B., 611 N.W.2d at 495. “Importantly, . . . 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.”

A.S., 906 N.W.2d at 474 (cleaned up).3 Children are not equipped with pause

buttons; delaying permanency in favor of the parents is not in a child’s best

interests. See In re A.C., 415 N.W.2d 609, 614 (Iowa 1987) (“The crucial days of

childhood cannot be suspended while parents experiment with ways to face up to

their own problems.”).

Here, the mother did not take responsibility for her failure to submit to drug

testing. She was less than candid in her testimony describing her efforts and

involvement in substance abuse treatment. She did not honestly explain how the

father’s three-year-old child was seriously injured while at her and the father’s

residence. She also related an implausible story to explain why the father’s

children were exposed to methamphetamine while at her and the father’s

residence. Her actions or lack thereof in these instances and others demonstrate

the mother’s unwillingness to attend to the issues that led to the Department’s

3
“Cleaned up” is a new parenthetical used to indicate that internal quotation marks,
alterations, and citations have been omitted from quotations. See United States v.
Steward, 880 F.3d 983, 986 n.3 (8th Cir. 2018); Jack Metzler, Cleaning Up Quotations, 18
J. App. Prac. & Process 143 (Fall 2017).
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involvement, as well as her inability to put the child’s needs before her own to

ensure the child’s safety and wellbeing.

The child is doing well in foster care, and the child is adoptable. Considering

“the child’s safety,” “the best placement for furthering the long-term nurturing and

growth of the child,” and “the physical, mental, and emotional condition and needs

of the child,” P.L., 778 N.W.2d at 37, we agree with the juvenile court that

termination of the mother’s parental rights is in the child’s best interests.

C. Relative Placement, Additional Time, and Guardianship.

Finally, we note that in her argument contesting the grounds for termination,

the mother also alternatively requests to have the child “placed in the care of a

relative . . . and that a concurrent goal of permanent guardianship be explored

while allowing [the mother] additional time to complete her treatment and get [the

child] safely home.” Before the court can grant a parent additional time, there must

be an assurance that the need for removal will no longer exist at the end of that

time period. See Iowa Code § 232.104(2)(b). Considering the mother’s lack of

progress in treatment, as well as the other reasons stated above, there can be no

assurance that the need for removal would no longer exist following an extended

time period. Consequently, insofar as the mother seeks additional time for

reunification, we find the evidence insufficient to warrant an extension of time.

III. Conclusion.

Because we find clear and convincing evidence that grounds for termination

of the mother’s parental rights were established under section 232.116(1)(h),

termination of the mother’s parental rights is in the child’s best interests, and an
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extension of time for reunification is not supported under the facts of the case, we

affirm the juvenile court’s order terminating the mother’s parental rights.

AFFIRMED.