In the Interest of A.W., A.W., and A.W., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 23-1590
Filed January 24, 2024

IN THE INTEREST OF A.W., A.W., and A.W.,
Minor Children,

L.J., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Lynn Poschner, District

Associate Judge.

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

Donna M. Schauer of Schauer Law Office, Adel, for appellant mother.

Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney

General, for appellee State.

Nicole Garbis Nolan of Youth Law Center, Des Moines, attorney and

guardian ad litem for minor children.

Considered by Bower, C.J., and Schumacher and Badding, JJ.
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SCHUMACHER, Judge.

A mother appeals the termination of her parental rights. She argues the

statutory requirements for termination were not proven, termination is not in the

best interests of the children, and a permissive exception under Iowa Code section

232.116(3) (2023) should be applied to preclude termination.

I. Background Facts and Prior Proceedings

Twins A.W. and A.W., born in 2012, and sibling A.W., born in 2014, came

to the attention of the Iowa Department of Health and Human Services (HHS) after

they were left home alone by their mother overnight and were discovered by a

garbage dumpster unattended. The children informed law enforcement they had

slept in their mother’s car overnight, after they were left alone and observed a

mouse in their home. The children had been living with the mother; their parents

had been separated since before the involvement of HHS.

The children were removed from parental custody in June 2021 and

adjudicated children in need of assistance (CINA) in July. The children’s removal

followed instances of lack of supervision, the mother’s use of alcohol, lack of

necessary psychiatric care for the children, and failure to address the educational

needs of one of the children. A dispositional hearing was held over three months

in July, August, and September. The mother continued to struggle with substance

abuse over this period. She was arrested for operating a motor vehicle while

intoxicated in July and she admitted drinking alcohol over the noon break of the

dispositional hearing date in September. After the September hearing, the mother

submitted a test positive for alcohol at a level of 0.102%.
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Following a permanency hearing in May 2022, the parents were granted a

six-month extension, with the court finding that if the mother continued to

participate in services the children could be returned to her custody. Yet the month

following the permanency hearing, the mother was arrested for domestic violence,

and in August she tested positive for cocaine. She denied cocaine use and failed

to appear for additional drug screens in November, December, and January. While

she completed several requested substance-abuse evaluations, her compliance

often occurred only after a long delay. The mother did not participate in any

substance-abuse treatment services for over a year following her June 2022 arrest.

Her alcohol abuse continued, and she reported in July 2023 that she had been

consuming a “six-pack three times a week” for the past six months. She also

reported using cocaine twice a week for a year, ending in November 2022. The

mother was diagnosed with alcohol use disorder and referred for extended

outpatient treatment. The mother’s visits with the children were inconsistent over

the course of these proceedings, and she often missed opportunities for interaction

with the children.

The State petitioned for termination of parental rights of both parents in

January 2023. In August, the State dismissed the termination petition as to the

father. The court terminated the mother’s parental rights pursuant to Iowa Code

section 232.116(1)(e) and (f) (2023), with custody and placed with the father.

II. Standard of Review

“Our review of termination of parental rights proceedings is de novo.” In re

M.D., 921 N.W.2d 229, 232 (Iowa 2018). We give weight to the court’s findings of

fact, but we are not bound by them. Id. “There must be clear and convincing
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evidence of the grounds for termination of parental rights.” In re M.W., 876 N.W.2d

212, 219 (Iowa 2016).

III. Termination

Orders for termination of parental rights are reviewed through a three-step

analysis. We determine first whether a ground for termination under section

232.116(1) has been established, second whether termination is in the best

interest of the child, and third whether any permissive exceptions under section

232.116(3) apply to preclude termination. Id. at 219–20.

A. Grounds for termination.

The court terminated the mother’s parental rights under Iowa Code section

232.116(1)(e) and (f). Because we find termination was warranted under

232.116(1)(f), we limit our discussion to those grounds.

Under section 232.116(1)(f) the grounds for termination are established if:

The court finds that all of the following have occurred:
(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of
assistance 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.

“At the present time” means “the time of the termination hearing.” In re K.D.,

No. 16-1778, 2017 WL 108586, at *1 (Iowa Ct. App. Jan. 11, 2017). The mother

does not dispute elements one, two, and three have been met. At the time of the

termination hearing, the mother was living in a supportive housing program where
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she would not be able to care for the children until she left the program. She

testified this program would last from six months to two years.

In this appeal, rather than arguing that the children could be returned to her

custody at the present time, or for an extension of time, the mother argues the

“[f]ather’s parental rights are not being terminated . . . so the children were safely

placed in a parental home.” (Emphasis in original). But the father is not the parent

in question in the instant appeal. The evidence presented at the termination

hearing demonstrates that the children would be unable to be returned to the

mother’s custody at the time of the hearing.

The mother testified it would not be possible for the children to return to her

custody for at least six months, and she has demonstrated throughout this case a

repeated failure to make the progress necessary to care for the children. The

mother already received an extension of time following the permanency hearing.

And since the removal she has been arrested for domestic violence, charged and

convicted of OWI, tested positive for cocaine, and been diagnosed with alcohol

use disorder. At the termination hearing, she testified she had been sober for two

months, but this short period of sobriety follows years of substance abuse.1 “It is

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

proved a ground for termination . . . by hoping someday a parent will learn to be a

parent and be able to provide a stable home for the child.” In re P.L., 778 N.W.2d

33, 41 (Iowa 2010). The children could not be returned to the custody of their

1 The mother was in her mid-forties at the time of the termination hearing. Her use

of cocaine and alcohol began when she was seventeen years old; she began using
marijuana at age fifteen.
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mother at the time of the termination hearing. The State proved the statutory

grounds of Iowa Code section 232.116(1)(f) by clear and convincing evidence.

B. Best interests and permissive exceptions

Even where grounds for termination exist, termination must still be found to

be in the best interests of the children. In re A.M., 843 N.W.2d 100, 112 (Iowa

2014). When considering best interests, “the court shall 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.” In re A.S., 906 N.W.2d 467, 474 (Iowa 2018). Under Iowa

Code section 232.116(3) permissive exceptions exist, and “‘[t]he court need not

terminate the relationship between the parent and child’ under certain

circumstances.” A.M., 843 N.W.2d at 113.

The mother argues termination is not in the best interests of the children

because of the close relationship she shares with them, highlighting that under

Iowa Code section 232.116(3), a close relationship between the parent and child

is a permissive exception that may preclude termination. The court may choose

not to terminate 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). “However, this circumstance is

only one of many factors considered and is not controlling.” In re J.W., No. 02-

1359, 2002 WL 31528638, at *3 (Iowa Ct. App. Nov. 15, 2002). And “the existence

of a bond is not enough. The law requires clear and convincing evidence that

termination would be detrimental . . . .” In re A.B., 956 N.W.2d 162, 169 (Iowa

2021) (internal quotations omitted).
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We do not question that the mother loves her children but her sporadic visits

and inability to stay on the path to recovery prevent her from caring for them.

Although one of the children expressed a position against termination, the other

two took no position, and stated a desire to live full-time with their father. The

mother testified that she opposed placement with the father. It is in the children’s

best interest to achieve long-term stability and permanency and the mother’s

intermittent involvement and unreliability do not contribute to the same. For the

exception to preclude termination, the disadvantage of termination must outweigh

the mother’s inability to properly care for the children and the need for permanency.

See In re D.W., 791 N.W.2d 703, 709 (Iowa 2010); In re W.M., 957 N.W.2d 305,

315 (Iowa 2021). Any disadvantage does not outweigh the need for permanency,

and we determine that the application of this permissive exception is unwarranted.

The mother also argues for the application of a permissive exception in that

a relative has custody of the children. Iowa Code section 232.116(3)(a) permits

the court to determine that termination should not occur if a relative has custody of

the children. The children were in the custody of their father. The district court

disagreed that this justified the application of the permissive exception, concluding:

[The father] and [the mother] bring out the worst in each other. They
cannot co-parent. [The mother] does not believe the children should
live with [the father]. She has made recent and also improbable
reports that [the father] is stalking her . . . . All of these factors could
cause further disruption and instability for the children. The children
are already fragile and working to restore their mental health. The
children have a chance now to grow up together, with a parent. This
chance should be protected. The children’s best chance at long-term
stability is for [the mother’s] parental rights to be terminated.

We agree, based on these facts, that the application of this permissive exception

is also not warranted.
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“‘Children simply cannot wait for responsible parenting. . . . It must be

constant, responsible, and reliable.’ It is simply not in the best interests of children

to continue to keep them in temporary foster homes while the natural parents get

their lives together.” In re C.K., 558 N.W.2d 170, 175 (Iowa 1997) (quoting In re

L.L., 459 N.W.2d 489, 495 (Iowa 1990)). Considering the mother’s inability to

demonstrate sustained sobriety and the length of time the children have been out

of her custody, we conclude that termination is in the best interests of the children,

and the application of a permissive exception is unwarranted.

IV. Conclusion

Grounds for termination of the mother’s parental rights exist under section

232.116(1)(f) as the children could not be returned to her custody at the time of the

termination hearing. Termination is in the best interests of the children and the

application of a permissive exception to preclude termination is unwarranted.

Accordingly, we affirm.

AFFIRMED.