In the Interest of I.S., and L.F., Minor Children, J.S., Mother

IN THE COURT OF APPEALS OF IOWA

No. 15-2033
Filed March 9, 2016

IN THE INTEREST OF I.S., and L.F.,
Minor Children,

J.S., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County, Annette

Boehlje, District Associate Judge.

A mother appeals from the order terminating her parental rights.

AFFIRMED.

Dylan J. Thomas, Mason City, for appellant mother.

Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant

Attorney General, for appellee State.

Patrick J. Rourick of Patrick J. Rourick Law Office, St. Ansgar, for minor

children.

Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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DANILSON, Chief Judge.

A mother appeals the termination of her parental rights to her two

daughters, I.S. and L.F.1 She does not dispute the existence of grounds for

termination under Iowa Code section 232.116(1)(f) (2015). Rather, she asserts

that termination of her parental rights is not in the best interests of her children

and should be overcome by the exceptions provided in section 232.116(3).

Unfortunately, the mother believes her drug usage is “manageable,” although she

has experienced incarceration, failed to complete substance abuse treatment,

relied upon others to care for her children, and her progress, if any, has been

beset with relapses and incarceration. Because we find that termination of the

mother’s parental rights is in the best interests of the children and the section

232.116(3) exceptions do not apply to make termination unnecessary, we affirm.

I. Background Facts and Proceedings.

J.S. is the mother of I.S., born in 2003, and L.F., born in 2010. I.S. and

L.F. were removed from their mother’s care on March 11, 2014, when she was

arrested for possession of methamphetamine with intent to deliver. At that time,

I.S. was placed with her biological father, and L.F. (who does not share I.S.’s

father) was placed in the care of a relative. The children were never returned to

the custody of their mother after March 11, 2014.

The children were adjudicated children in need of assistance (CINA) as

defined in Iowa Code section 232.2(6)(c), 232.2(6)(n), and 232.2(6)(o) on April

21, 2014. During the subsequent course of the CINA proceedings, the mother

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I.S.’s father’s parental rights were also terminated in the juvenile court’s November 16,
2015 order. The father has not appealed the termination.
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struggled to comply with the recommendations of the Iowa Department of Human

Services (DHS). The recommendations included that she complete substance

abuse treatment; submit to regular drug testing; obtain mental health treatment,

including grief counseling; and maintain interaction with the children. The mother

was discharged from substance abuse treatment, and admitted to multiple

relapses and drug use during the period of time between removal of her children

and the termination hearing. She also ceased participating in Family Treatment

Court, was inconsistent in attending mental health treatment, and stopped

attending grief counseling after only one session.

At the termination hearing, the mother stated that she believed her

substance abuse problem was “manageable” and a matter of making good

choices. However, the juvenile court stated:

It is concerning that [the mother] minimizes her drug use and her
inability to address it. This is not a simple matter of choosing
differently, as she seems to believe. [The mother] lacks insight on
this issue. If it were a simple matter of different choice, what is [the
mother] waiting for to make that different choice? How long do her
daughters need to suffer in limbo while their mother gets her act
together?

The mother also acknowledged that her relapses frequently lead to

criminal behavior. For example, she was incarcerated in Minnesota at the time of

the termination hearing. After her release from the Minnesota jail, she faced two

outstanding warrants in Iowa—one for failure to serve a 120-day sentence for

three separate charges and one for an additional charge of burglary. The mother

admitted at the termination hearing that she was unable to resume care of her

children presently.
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A dispositional order was entered May 19, 2014, and a permanency

hearing was held March 12, 2015. The petition for termination was filed June 30,

2015, and the termination hearing was held on November 13, 2015. The juvenile

court entered an order on November 16, 2015, terminating the mother’s parental

rights to I.S. and L.F. pursuant to Iowa Code section 232.116(1)(f) (allowing

termination where a child adjudicated CINA and who is four years or older has

been out of the parent’s custody for twelve consecutive months and cannot be

returned to the parent at present). In support of the determination that the

mother’s parental rights should be terminated, the juvenile court found:

[S]ince March, 2014, [the mother] has not completed the
requirements ordered by the court, including substance abuse
treatment, mental health treatment or stability. She is currently
incarcerated with no set date of release. These girls have waited
long enough for their mother to address these issues. [The mother]
admits that her drug usage impairs her relationship with the girls,
but she has not been motivated to make a change. [The children]
deserve permanency today.

The mother now appeals, contending the juvenile court erred because

termination of her parental rights to I.S. and L.F. is not in their best interests, and

because the exceptions under Iowa Code section 232.116(3) should apply to

overcome the decision to terminate her parental rights.

II. Standard of Review.

We review proceedings for termination of parental rights de novo. In re

H.S., 805 N.W.2d 737, 745 (Iowa 2011). If there is clear and convincing

evidence of grounds for termination, an order terminating parental rights will be

upheld. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). “Evidence is ‘clear and

convincing’ when there are no ‘serious or substantial doubts as to the
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correctness o[f] conclusions of law drawn from the evidence.’” Id. (quoting In re

C.B., 611 N.W.2d 489, 492 (Iowa 2000)).

III. Analysis.

Termination of parental rights under Iowa Code section 232.116 requires a

three-step analysis. D.W., 791 N.W.2d at 706. The court must first determine

the existence of a ground for termination under Iowa Code section 232.116(1).

Id. If a ground for termination is established, the court must still apply the best-

interest framework as provided in section 232.116(2) to determine if the grounds

for termination should result in termination of parental rights. Id. at 706-07. Last,

the court must decide if any exception under section 232.116(3) should preclude

termination of parental rights. Id. at 707.

A. Grounds for Termination. Because the mother does not dispute the

existence of grounds for termination under Iowa Code section 232.116(1)(f), we

need not address this step. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).

B. Best Interests. A determination of a child’s best interests is governed

by Iowa Code section 232.116(2). This statute provides,

In considering whether to terminate the rights of a parent under this
section, 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.

Iowa Code § 232.116(2). “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.” P.L., 778 N.W.2d at 41.
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The mother asserts that termination of her parental rights is not in the best

interests of her children. She argues that an alternate approach establishing a

guardianship for I.S. with her maternal grandmother would be in I.S.’s best

interests. She also argues that, rather than terminating her parental rights, it

would be in L.F.’s best interests to keep the CINA case open and grant

concurrent jurisdiction to allow the district court to enter a custody order.

The State asserts that the mother has failed to preserve error with respect

to her claims of alternative remedies. We choose to address the issues even if

not properly preserved.

The mother’s suggestion of a guardianship for I.S. as an alternate

approach is not in the child’s best interests. The mother is not able to ensure the

child’s safety or provide for her long-term nurturing and growth. “[A] child’s safety

and his or her need for a permanent home [are] the defining elements in a child’s

best interests.” In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J.,

concurring specially). The children have been out of their mother’s care since

March 11, 2014. I.S. has been in several placements between March 11, 2014,

and the time of the termination hearing; she deserves stability. Establishing a

guardianship for I.S., rather than termination, would not promote stability in her

life. See In re R.S.R., No. 10-1858, 2011 WL 441680, at *4 (Iowa Ct. App. Feb.

9, 2011) (“So long as a parent’s rights remain intact, the parent can challenge the

guardianship and seek return of the child to the parent’s custody. Termination

and adoption are the preferred solution when a parent is unable to regain

custody within the time frames of chapter 232.” (citation omitted)).
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Similarly, keeping the CINA case open with respect to L.F. to allow the

district court to enter a custody order would not provide L.F. with stability. L.F. is

placed with her father, and is thriving in this stable environment.

These alternative remedies also presuppose the mother will likely become

a responsible parent in the future who should or could remain active in her

children’s lives. Unfortunately, the mother has made no lasting progress in

taking control of her own life, and her children cannot remain in limbo. The

children’s best interests will be served by termination of their mother’s parental

rights to allow them to achieve permanency. See In re A.M., 843 N.W.2d 100,

113 (Iowa 2014). We agree with the juvenile court that “the child[ren]’s safety,

and best opportunity for furthering the child[ren]’s long-term nurturing and growth,

as well as the physical, mental and emotional condition and needs of the

child[ren] support termination of parental rights.”

C. Exceptions or Factors against Termination. Last, we consider

whether any factor of section 232.116(3) applies to overcome the determination

to terminate. The section 232.116(3) factors are permissive, not mandatory. In

re J.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997). “The court has discretion,

based on the unique circumstances of each case and the best interests of the

child, whether to apply the factors in this section to save the parent-child

relationship.” In re D.S., 806 N.W.2d 458, 475 (Iowa Ct. App. 2011). The

consideration is “whether the child will be disadvantaged by termination, and

whether the disadvantage overcomes [the parent]’s inability to provide for [the

child]’s developing needs.” D.W., 791 N.W.2d at 709.
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Although the mother does not specify what paragraph of section

232.116(3) upon which she relies, we find no factor supports her position. The

children are not in the legal custody of a relative, and there is no evidence that a

child over ten years of age objected to the termination. Iowa Code section

232.116(3)(a) & (b); see also A.M., 843 N.W.2d at 113. Nor does the record

support a finding that there is such a close bond between parent and children

that section 232.116(3)(c) should preclude termination of the mother’s parental

rights. Although the children have a bond with their mother, the mother admitted

at the termination hearing that her absence and substance abuse have damaged

her relationship with her daughters. The parent-child relationship is not so strong

as to outweigh the children’s best interests and need for long-term nurturing and

permanency. See In re A.B., 815 N.W.2d 764, 778 n.8 (Iowa 2012).

IV. Conclusion.

There is clear and convincing evidence that grounds for termination exist

under section 232.116(1)(f), termination of the mother’s parental rights is in the

best interests of the children in accordance with section 232.116(2), and no

factor in section 232.116(3) overcomes the determination to terminate the

mother’s parental rights. We therefore affirm termination of the mother’s parental

rights to I.S. and L.F.

AFFIRMED.