In the Interest of L.S., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 18-1725
Filed December 5, 2018

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

S.S.-W., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Susan Cox, District

Associate Judge.

A mother appeals the termination of her parental rights to her minor child.

AFFIRMED.

Zachary C. Priebe of Jeff Carter Law Offices, PC, Des Moines, for appellant

mother.

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

General, for appellee State.

Brent M. Pattison of Drake Legal Clinic, Des Moines, guardian ad litem for

minor child.

Considered by Tabor, P.J., and Mullins and Bower, JJ.
2

MULLINS, Judge.

The child in interest was born in October 2017. At this time, the mother was

a juvenile and residing in a youth detention center as a result of juvenile

delinquency proceedings; termination proceedings were underway as to another

of the mother’s children.1 A few days after the child’s birth, the State sought and

obtained removal and filed a child-in-need-of-assistance (CINA) petition. The

juvenile court placed the child in the legal custody of the Iowa Department of

Human Services (DHS). The child was immediately placed in foster care. The

child was adjudicated a CINA in November.

In late October, the mother was discharged from the youth detention center

and moved into Ruth Harbor, a shelter that provides assistance to young mothers

and their children. She also began attending therapy appointments and parenting

classes. Supervised visitations with the child at issue began in early November.

In December, as a result of the mother’s progress, DHS decided she would be

allowed semi-supervised visitation. In January 2018, the mother chose to leave

Ruth Harbor, despite the fact that she was on the brink of reunification with the

child in that facility. She was then placed in a supervised apartment living program.

The mother’s participation in therapy waned after her departure from Ruth Harbor.

In March 2018, an incident occurred in which the child almost died from

choking on a piece of candy while in the mother’s care during a visit. The mother

blamed the incident on someone else. The mother’s visits with the child reverted

to fully supervised. A subsequent child-abuse assessment was founded against

1
The mother’s parental rights as to her other child were ultimately terminated in November
2017 pursuant to Iowa Code section 232.116(1)(h) (2017).
3

the mother. By April, despite attending parenting classes and receiving other

services for several months, the mother was still unable to exhibit the skills

necessary to parent or care for a young child. In a May 2018 permanency order,

the juvenile court directed the State to initiate termination proceedings. The State

filed its petition in June. In July, visitations were suspended as a result of the

mother’s threatening behavior.

The concerns throughout the pendency of these proceedings have related

to the mother’s mental-health issues, aggression, inability to understand the child’s

basic needs, and tendency to blame others for her shortcomings as a parent.

Although the mother has made some progress in other areas, the main issues

have not been resolved. Between May 2018 and the time of the termination

hearing, the mother generally discontinued pursuing mental-health treatment,

although she did schedule a few appointments to take place in the weeks leading

up to the termination hearing. At the time of the termination hearing in August, the

mother had recently obtained employment, moved into a suitable two-bedroom

apartment, and was pursuing her CORE diploma.2 The child has been in the same

foster-care placement since shortly after his birth. He is thriving in his current

placement and his foster parents are willing to adopt him. The foster mother

testified she would be willing to continue to allow contact between the mother and

the child. At the time of the termination hearing, the mother was five months

pregnant with a third child.

2
The record does not disclose what a CORE diploma is.
4

Following a hearing, the juvenile court terminated the mother’s parental

rights under Iowa Code section 232.116(1)(g) and (h) (2018). The mother appeals

this ruling. She challenges the sufficiency of the evidence to support termination,

argues termination is not in the best interests of the child, and contends the

statutory exception to termination contained in Iowa Code section 232.116(3)(c)

should be applied to preclude termination.

Appellate review of termination-of-parental-rights proceedings is de novo.

In re A.S., 906 N.W.2d 467, 472 (Iowa 2018) (quoting In re A.M., 843 N.W.2d 100,

110 (Iowa 2014)). “We are not bound by the juvenile court’s findings of fact, but

we do give them weight, especially in assessing the credibility of witnesses.” Id.

(quoting A.M., 843 N.W.2d at 110). Our primary consideration is the best interests

of the child. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).

First, the mother contends the State failed to meet its burden for termination

under Iowa Code section 232.116(1)(g) and (h). “On appeal, we may affirm the

juvenile court’s termination order on any ground that we find supported by clear

and convincing evidence.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). As to

termination under paragraph (h), the mother only challenges the State’s

establishment of the final element of that provision—that the child could not be

returned to her care at the time of the termination hearing. See Iowa Code

§ 232.116(1)(h)(4) (requiring “clear and convincing evidence that the child cannot

be returned to the custody of the child’s parents . . . at the present time”); D.W.,

791 N.W.2d at 707 (interpreting the statutory language “at the present time” to

mean “at the time of the termination hearing”). On this issue, the mother simply

points to the facts that she “has an appropriate apartment in a safe neighborhood,”
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which “is equipped to suit the needs of her infant child”; she has maintained

employment for three months; and she has the financial capacity to care for the

child. We fully acknowledge the mother has been able to create a physical

environment that would be appropriate for a child, and we commend the mother

for obtaining employment. However, we find the evidence to be clear and

convincing that the mother is unable to meet the basic needs and provide

appropriate care for the child. The mother lives alone in her new apartment. If the

child had been returned to the mother’s care at the time of the termination hearing,

it would have been only the two of them living in the apartment. The record clearly

indicates the mother cannot consistently provide for the safety of this child without

the assistance and supervision of others. Upon our de novo review of the record,

we conclude the State met its burden to prove by clear and convincing evidence

that the child could not be returned to the mother’s care at the time of the

termination hearing.

Next, the mother argues termination of her parental rights is not in the child’s

best interests. In support of her position, the mother points to her current

pregnancy and argues siblings should be kept together whenever possible. We

agree that children should be kept together whenever possible. See In re L.B.T.,

318 N.W.2d 200, 202 (Iowa 1982). However, this sentiment does not preclude

termination on best-interests grounds in situations such as this, where the siblings

have never met and share no relationship, and the foster parents or potential

adoptive parents have expressed an intention to maintain contact between the

child and the child’s biological family following termination. See, e.g., In re L.C.,

No. 18-0531, 2018 WL 4361052, at *5 (Iowa Ct. App. Sept. 12, 2018); In re T.B.,
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No. 18-0618, 2018 WL 3057948, at *4 (Iowa Ct. App. June 20, 2018); In re C.C.,

No. 16-1311, 2016 WL 5407947, at *4 (Iowa Ct. App. Sept. 28, 2016).

Furthermore, in determining whether termination is in the best interests of a

child, 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.” Iowa Code § 232.116(2).

This child has been in the same foster-care placement since shortly after his birth.

This is the only home this child knows, he is thriving, and the foster parents are

prepared to adopt the child and provide continued stability and permanency.

Continued stability and permanency in this home are in this child’s best interests.

See id. § 232.116(2)(b); cf. In re M.W., 876 N.W.2d 212, 224–25 (2016)

(concluding termination was in best interests of children where children were well-

adjusted to home with their foster parents, the foster parents were “able to provide

for their physical, emotional, and financial needs,” and the foster parents were

prepared to adopt the children).

Finally, the mother argues the statutory exception contained in Iowa Code

section 232.116(3)(c) should be applied to preclude termination. “The court need

not terminate the relationship between the parent and child if . . . [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.” Iowa Code

§ 232.116(3)(c). The application of the statutory exceptions to termination is

“permissive not mandatory.” M.W. 876 N.W.2d at 225 (quoting A.M., 843 N.W.2d

at 113). “[T]he parent resisting termination bears the burden to establish an

exception to termination.” A.S., 906 N.W.2d at 476. The evidence presented
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reveals the mother and child share a bond. However, no evidence was presented

that “termination would be detrimental to the child” as a result of the severance of

that bond. Iowa Code § 232.116(3)(c). Instead, the record shows the effect

termination will have on the child will be limited at most, given the child’s very

young age and early removal from his mother’s care. We conclude the mother

failed to meet her burden to establish the statutory exception to termination. See

A.S., 906 N.W.2d at 476. In the alternative, we conclude the application of the

permissive exception to termination would be contrary to the child’s best interests.

Upon our de novo review, we affirm the termination of the mother’s parental

rights.

AFFIRMED.