In the Interest of A.B. and I.B., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 20-1032
Filed November 4, 2020

IN THE INTEREST OF A.B. and I.B.,
Minor Children,

Y.B., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Mitchell County, Karen Kaufman

Salic, District Associate Judge.

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

AFFIRMED.

William P. Baresel of Prichard Law Office, PC, Charles City, for appellant

mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Patrick J. Rourick, Saint Ansgar, attorney and guardian ad litem for minor

children.

Considered by Vaitheswaran, P.J., and Doyle and Ahlers, JJ.
2

DOYLE, Judge.

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

The Iowa Department of Human Services (DHS) first became involved with

this family in 2016, when the State charged the mother with child endangerment

for leaving five-month-old I.B. alone in the home to go to a bar. The DHS’s most

recent involvement with the family began in December 2017 when the State

charged the father with committing felony domestic abuse assault against the

mother, who was pregnant with A.B. When domestic violence continued in the

home after A.B.’s birth, the juvenile court adjudicated both children to be in need

of assistance (CINA). The court initially placed the children in the father’s care but

removed the children six months later due to the parents’ ongoing interaction and

the domestic violence that resulted from it. When the mother failed to improve

significantly after nearly two years of DHS involvement, the State petitioned to

terminate parental rights.

The juvenile court terminated the mother’s parental rights to I.B. under Iowa

Code section 232.116(1)(f) (2019) and to A.B. under section 232.116(1)(h).

Although paragraphs (f) and (h) differ with regard to the age of the child and the

length of removal, the final requirement of each—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—is the same. See Iowa Code

§ 232.116(1)(f)(4), (h)(4). To satisfy this element, the State must present clear and

convincing evidence to show that the child would be exposed to adjudicatory harm

if returned to the parent’s care at the time of the termination hearing. See In re

D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the term “at the present time”
3

to mean to mean “at the time of the termination hearing”); In re M.S., 889 N.W.2d

675, 680 (Iowa Ct. App. 2016) (noting a child cannot be returned to the custody of

the parent if doing so would expose the child to any harm amounting to a new

CINA adjudication).

The mother claims the children are not at risk of adjudicatory harm if

returned to her care because she has never abused or neglected them. She

complains that the court instead focused on “a series of small incidents over the

course of more than 20 months.” But the record shows that the mother’s ongoing

physical- and mental-health issues impair her ability to ensure the children’s safety.

The mother’s visitation remained supervised two years after the CINA adjudication,

and the evidence shows that the children would be at risk of harm without this

supervision. In its termination order, the juvenile court quoted from the DHS’s

termination report:

[The mother] has repeatedly demonstrated that while she can have
meaningful interactions with her children, she has difficulty meeting
their needs when she is parenting alone for short periods of time, and
this is when interactions are supervised. [The mother] has not been
able to progress beyond supervised interactions, and the children do
not have protective capacities of their own, so are fully reliant on their
adult caretakers to meet their needs. [The mother] believes that she
needs help to meet her own basic needs, which makes it unrealistic
to suggest she is capable at this time of meeting the needs of her
young sons. [The mother] may be making some progress, but will
likely need a substantial period of time devoted to her own mental
and physical health needs before she is able to focus energy outside
of herself.

The evidence shows that the children would be at risk of adjudicatory harm if

returned to the mother’s care.

The mother also disputes that termination is in the children’s best interests.

See Iowa Code § 232.116(2); D.W., 791 N.W.2d at 706-07 (requiring that the court
4

“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”). In

determining best interests, our primary considerations are “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.” In re P.L.,

778 N.W.2d 33, 37 (Iowa 2010) (quoting Iowa Code § 232.116(2)). The “defining

elements” we consider in making this determination are the child’s safety and

“need for a permanent home.” In re H.S., 805 N.W.2d 737, 748 (Iowa 2011)

(citation omitted).

The mother is unable to provide the safety and permanency needed. As

we have already determined, the children are at risk of harm if returned to the

mother’s care. And the record shows the mother is unable to provide a stable and

permanent home. The mother did not work in the two years following the CINA

adjudication began and, as a result of her limited financial means, frequently lost

housing. Concerns persist regarding the mother’s ability to provide the children

with a stable and consistent routine and discipline. As the juvenile court noted, the

mother undoubtedly loves the children. But “basic safety and supervision

concerns” persist some thirty-two months after the DHS first began providing

services such that her visits with the children require supervision. When we

compare the length of time the mother has been given to gain insight into these

concerns and the skills to correct them with the limited improvement she has made,

we agree that termination is in the children’s best interests.

Finally, the mother seeks to avoid termination under Iowa Code section

232.116(3), which provides that the court “need not terminate the relationship
5

between the parent and child” under certain circumstances. Application of section

232.116(3) is permissive rather than mandatory, and it depends on the facts of

each case and the children’s best interests. See In re A.S., 906 N.W.2d 467, 475

(Iowa 2018). The mother bears the burden of establishing an exception to

termination. See id. at 476.

The mother asks us not to terminate parental rights because the children

are in the care of a relative. But the children are not in the legal custody of a

relative, as is required under section 232.116(3)(a). She also claims that

termination would be detrimental to the children. See Iowa Code § 232.116(3)(c)

(providing that the court need not terminate parental rights if “clear and convincing

evidence” shows “termination would be detrimental to the child at the time due to

the closeness of the parent-child relationship”). The record does not support such

a finding. As the juvenile court noted, any sadness the termination may cause the

children does not outweigh the long-term hardship and neglect they would likely

suffer in the mother’s care. Termination is in the children’s best interests.

AFFIRMED.

Ahlers, J., concurs; Vaitheswaran, P.J., dissents.
6

VAITHESWARAN, Judge (dissenting).

I respectfully dissent. The department of human services intervened in

January 2018, when the father assaulted the mother in front of one of the children.

The mother was pregnant with their second child. The father continued to

physically and mentally abuse the mother over the ensuing two years.

The department reported that the father “punched [the mother] in the butt

causing her back injury,” which led to having the children exchanged from one

parent to the other in public places. Later the same year, the department reported

that the father asked the mother to leave the home and, when she did not, he

“forc[ed] her to leave by grabbing her and pulling her out of the home.” The mother

“was observed to have bruising on her jawline.” A year later, the department

reported that the mother recorded the father “hollering at her in a manner that was

completely inappropriate.” Following that incident, the mother committed to

divorcing her husband.

At the time of the termination hearing, the mother (1) had her own apartment

and had spoken to the landlord about upgrading to a two- or three-bedroom

apartment if the children were returned to her care; (2) had secured employment

and was receiving job training; (3) had no alcohol or drug dependency issues;

(4) testified that the State dismissed a child-endangerment charge; (5) testified to

an improvement in a yet-to-be diagnosed condition involving pain in her bones that

previously limited her ability to interact with the children; (6) had scheduled an

appointment for an assessment of her physical condition and testified to seeing a

chiropractor several times; and (7) was meeting with a counselor once a week and

taking medication to treat depression. The State did not dispute these assertions.
7

A domestic abuse program supervisor who had worked with the mother for

several years reported she had “no concerns about [the mother’s] mental health,

ability to get around physically and care for herself[,] and her children or her having

any desire to rekindle a relationship with the” father.

As for the department’s concerns about the mother’s supervision of the

children, the service provider who supervised visits reported that the mother

heeded her advice to take both children to the bathroom when one needed to go,

prohibit the children from playing with toys that presented a choking hazard, and

hold the children’s hands when outside. The service provider also reported that

the mother had “good interactions with the kids.” And, shortly after the termination

petition was filed, the service provider reported “no concerns of physical abuse,

emotional abuse, sexual abuse, or neglect toward” the children. Finally, in the

reporting period preceding the termination hearing, the service provider reported

the mother was having supervised visits with the children in her home, which was

“furnished appropriately and was clean.”

Unfortunately, the COVID-19 pandemic prevented the mother from

demonstrating her independent parenting skills on a sustained basis, with many

visits being held by video. Because the mother made marked improvements in

her compliance with department expectations notwithstanding the pandemic, I

would conclude termination was not in the children’s best interests and I would

reverse the termination decision and remand for further proceedings.