In the Interest of L.W., T.S., and A.A., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 23-0326
Filed June 7, 2023

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

M.A., Father,
Appellant,

T.S., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Carrie K. Bryner,

District Associate Judge.

A mother and father separately appeal the termination of their parental

rights. AFFIRMED ON BOTH APPEALS.

Deborah M. Skelton, Tiffin, for appellant father.

Mark D. Fisher of Howes Law Firm, P.C., Cedar Rapids, for appellant

mother.

Brenna Bird, Attorney General, and Mackenzie L. Moran, Assistant Attorney

General, for appellee State.

Julie Gunderson Trachta of Linn County Advocate, Cedar Rapids, attorney

and guardian ad litem for minor children.

Considered by Bower, C.J., and Tabor and Greer, JJ.
2

BOWER, Chief Judge.

A mother and father separately appeal the termination of their parental

rights. The father challenges the grounds for termination and claims termination

is not in the children’s best interests. The mother asserts termination is not in the

best interests of the children and the court failed to apply an exception to

termination. We affirm on both appeals.

I. Background Facts & Proceedings.

T.S. is the mother of L., born in 2014; T., born 2016; and A., born in 2019.1

L.’s father is I.W.2 We will refer to T. and A.’s father as “the father” for purposes of

this appeal.

A. tested positive for marijuana at birth in early 2019. The police also visited

the family home several times through 2019 due to the mother’s involvement in

physical altercations, concerns of her supervision of the children, and reports of

delinquent behaviors by two of her older children. These events brought the family

to the attention of the Iowa Department of Health and Human Services (the

Department). Petitions to declare each child a child in need of assistance (CINA)

were filed in December, and in March 2020, the children were each adjudicated as

CINA.

In late April, after a car accident, the mother was arrested for a variety of

drug and traffic offenses. The father was in the vehicle at the time, and law

enforcement determined he was also under the influence of drugs or alcohol so

1 T.S. has several older children, including two minor children older than L., who
were placed under guardianships and are not part of this appeal.
2 I.W.’s parental rights were also terminated. He did not appeal.
3

the children could not be placed with him. The children were removed from

parental care on April 27. At the time of removal, L. tested positive for cocaine and

T. tested positive for THC; A.’s hair was too short for testing.

In December, the mother was intoxicated and hit the father with a baseball

bat. In May 2021, the mother was incarcerated for offenses relating to her 2020

vehicle accident.

A hearing to terminate the parents’ rights began in September 2021. At that

time, neither parent had consistently participated in drug tests, nor had the mother

cooperated in substance-abuse treatment. The father stopped using marijuana

but continued to drink alcohol to excess despite being told treatment would not

work if he drank.

In December, the mother filed a motion to reopen the record, informing the

court of her progress through substance-abuse treatment, her new employment,

and her efforts to follow the court’s orders. At the end of January 2022, the father

filed a similar motion. The court granted the motions in February, and in March

the court granted the parents an additional three months to achieve reunification.

During the reunification extension, the father made progress, and his

visitation moved from supervised to semi-supervised and then unsupervised.3 In

July, the court authorized a trial home visit for T. and A. with their father, and the

court ordered no contact between the mother and father.4

3 The mother did not consistently progress—she reportedly drank to excess and
was selling marijuana.
4 L. remained in a relative placement.
4

Once T. and A. were living with their father, the mother made progress with

housing, completed substance-abuse treatment, obtained employment, and

improved her parenting with the children.

In October, law enforcement was called to the father’s home.5 The father

reported the mother threatened him with a knife.6 When the father ran outside to

call 911, she took the children and left. Neither parent informed the Department

or the court of the incident at a pretrial hearing just two days later. When the

Department followed up about the incident, the children reported the father drank

alcohol on a regular basis and the mother was at the home often. The mother was

arrested for assault. T. and A. were removed from the father again and placed in

family foster care. After the removal, the father was not cooperative with the foster

family or the Department.

Additional reports to the Department around the same time alleged the

father was using cocaine in his home when he had T. and A. living with him. T.’s

hair was tested for drugs at the October removal and was positive for

methamphetamine and cocaine.7 A hair test of the father collected a few days

after the removal came back positive for methamphetamine, ecstasy, and cocaine

and related metabolites.

5 Records show a number of calls to law enforcement to the father’s home during
the trial home visit, including at least one alleging the father was intoxicated and
ringing neighbors’ doorbells.
6 At the termination hearing, the mother denied having been at the father’s home

and said she has not had contact with him since the July no-contact order.
7 A.’s hair was too short to test.
5

After completing the termination hearing in November, the court terminated

the mother’s rights to L. and T. under Iowa Code section 232.116(1)(f) (2021),8

and to A. under section 232.116(1)(h).9 The father’s rights to T. and A. were also

terminated under Iowa Code section 232.116(f) and (h).

The mother and father separately appeal.

II. Standard of Review.

“We review termination of parental rights proceedings de novo.” In re J.H.,

952 N.W.2d 157, 166 (Iowa 2020). The termination of each parent’s “rights are

separate adjudications, both factually and legally.” Id. at 171 (citation omitted).

“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.” In re D.W., 791

N.W.2d 703, 706 (Iowa 2010).

8 Termination under section 232.16(1)(f) requires the court find the following:
(1) The child is four years of age or older.
(2) The child has been adjudicated a [CINA] pursuant to
section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least twelve of the last eighteen months, or
for the last twelve consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents
as provided in section 232.102.
9 Termination under section 232.116(1)(h) requires the court find the following:

(1) The child is three years of age or younger.
(2) The child has been adjudicated a [CINA] 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.
6

III. Analysis.

Termination of parental rights under chapter 232 follows a
three-step analysis. First, the court must determine if a ground for
termination under section 232.116(1) has been established. If a
ground for termination is established, the court must, secondly, apply
the best-interest framework set out in section 232.116(2) to decide if
the grounds for termination should result in a termination of parental
rights. Third, if the statutory best-interest framework supports
termination of parental rights, the court must consider if any statutory
exceptions set out in section 232.116(3) should serve to preclude
termination of parental rights.

Id. at 706–07 (internal citations omitted). We need not discuss the steps of

analysis not challenged by the parent. See In re P.L., 778 N.W.2d 33, 40 (Iowa

2010).

Here, the father challenges the first two steps of the analysis. The mother

challenges the second and third steps.

A. Grounds for termination. The father’s parental rights were terminated as

to T. under Iowa Code section 232.116(1)(f), and as to A. under paragraph (h).

The father concedes the State established the first three elements but asserts the

State did not prove by clear and convincing evidence the children could not be

returned to his care.

T. and A. were on a trial home visit in the father’s care for over three months.

However, in the last weeks before their second removal, the father allowed the

mother into the house in spite of a no-contact order, at which time he alleges she

assaulted him with a knife. The father was reported to be using cocaine, and an

October hair stat test of the six-year-old child revealed ingestion of

methamphetamine and cocaine while in his care. We do not know if the younger

child also ingested drugs, as the child’s hair was too short to test. The father’s test
7

results came back after the trial (but the court held the record open for the results),

and they showed he ingested methamphetamine, ecstasy, and cocaine. Under

these circumstances, the State proved by clear and convincing evidence the

children could not be returned to the father’s care.

B. Best interests. Our best-interests analysis gives “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). “[I]t 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.” In re A.S., 906 N.W.2d 467, 474

(Iowa 2018) (alteration in original) (citation omitted).

The father asserts he loves the children, they love him, he can meet their

physical and emotional needs, and placement with him “poses no appreciable risk

of adjudicatory harm,” so there is no authority permitting the termination of his

parental rights. This family has been involved with the Department since 2019.

This case has already been extended far beyond the statutory time period, 10 and

the father had been entrusted to care for the children and show he could protect

them from drugs in their home environment. He failed. “Children simply cannot

wait for responsible parenting,” id. (citation omitted), and these children have been

waiting for three years for a safe and stable home. Termination of the father’s

parental rights is in the children’s best interests.

10 See In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (“Once the limitation period
lapses, termination proceedings must be viewed with a sense of urgency.”).
8

The mother argues her close bond with the children and their sibling bond

means termination of her rights would harm them and would affect the sibling bond

between L. and the other two children. Our legislature recognized that sibling

relationships should be considered when making a determination of each child’s

best interests. See Iowa Code § 232.108. The legislature also recognized a need

for continuing those relationships even beyond the termination of parental rights,

allowing a sibling to file a request for visitation and encouraging sibling visitation

and training adoptive placements of the importance of continuing the sibling ties.

See id. While the preference is important, it is but one factor in our consideration.

See In re K.A., No.18-0232, 2018 WL 1633524, at *3 (Iowa Ct. App. Apr. 4, 2018).

In addition, none of the mother’s other children are in her care—they are either

adults or in guardianships, lessening the impact termination of the mother’s

parental rights would have on the sibling relationships.

At the time the termination hearing concluded, the children had been out of

the mother’s custody for more than two-and-one-half years. She was incarcerated

for a portion of that period, including on the final day of the termination hearing.

She showed irregular progress throughout the case. Although she loves her

children and they love her, on this record we find the mother cannot provide a safe

and stable home providing for the children’s current needs and long-term growth.

Termination of her rights is in the children’s best interests.

C. Exception to termination. The mother asserts the juvenile court erred in

not considering her close bond to the children as an exception to termination under
9

Iowa Code section 232.116(3)(c).11 “The exceptions in section 232.116(3) are

permissive, not mandatory.” In re W.T., 967 N.W.2d 315, 324 (Iowa 2021) (internal

quotation marks and citation omitted). “[T]he parent resisting termination bears

the burden to establish an exception to termination . . . .” A.S., 906 N.W.2d at 476.

“[T]he existence of a bond is not enough. The law requires clear and convincing

evidence that ‘termination would be detrimental to the child at the time due to the

closeness of the parent-child relationship.’” In re A.B., 956 N.W.2d 162, 169 (Iowa

2021) (citation omitted). The children here are young and have been out of the

mother’s care since April 2020, with only supervised visits since the removal. We

find the mother has not met her burden to show the termination of parental rights

would be detrimental to the children.

AFFIRMED ON BOTH APPEALS.

11 Iowa Code section 232.116(3)(c) provides “The court need not terminate the
relationship between the parent and child if the court finds . . . [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.”