In the Interest of N.K., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 21-0330
Filed May 26, 2021

IN THE INTEREST OF N.K.,
Minor Child,

A.S.F., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Boone County, James B. Malloy,

District Associate Judge.

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

Ashley M. Sparks of Neighborhood Law Group of Iowa, P.C., West Des

Moines, for appellant mother.

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

Attorney General, for appellee State.

Emily DeRonde of DeRonde Law Firm, PLLC, Johnston, attorney and

guardian ad litem for minor child.

Considered by Bower, C.J., and Vaitheswaran and Mullins, JJ.
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BOWER, Chief Judge.

A mother appeals the termination of her parental rights to her child, N.K.,

born in September 2019.1 Because grounds for termination exist under Iowa Code

section 232.116(1)(h) (2020),2 termination of parental rights is in the child’s best

interests, and no permissive exception weighs against termination, we affirm.

We review termination of parental rights proceedings de novo. A.B., 815

N.W.2d at 773. We give weight to the findings of the court but are not bound by

them. Iowa R. App. P. 6.903(4)(g).

Iowa Code section 232.116(1)(h)

provides that termination may be ordered when there is clear and
convincing evidence that a child under the age of three who has been
adjudicated a [child in need of assistance (CINA)] and removed from
the parent[’s] care for at least the last six consecutive months cannot
be returned to the parent[’s] custody at the time of the termination
hearing.

In re D.W., 791 N.W.2d 703, 707 (Iowa 2010).

The mother first asserts the termination petition should have been

dismissed for “lack of notice.” This contention is based upon the omission of the

subsection numeral (1) after the code section in the petition. We are not persuaded

the omission requires dismissal.

“Notice of the hearing and an opportunity to be heard appropriate to the

nature of the case is the most rudimentary demand of due process of law in

1 The father’s rights were also terminated. He does not appeal.
2 The juvenile court also found termination was appropriate under Iowa Code
section 232.116(1)(e). Because we find termination was proper under paragraph
(h), we need not address the alternative ground. See In re A.B., 815 N.W.2d 764,
774 (Iowa 2012) (“When the juvenile court terminates parental rights on more than
one statutory ground, we may affirm the juvenile court’s order on any ground we
find supported by the record.”).
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proceedings affecting parental rights to children.” In re S.P., 672 N.W.2d 842, 845

(Iowa 2003) (citation omitted).

To allow the parent to prepare for the hearing and defend against the
allegations, due process requires the child and his parents or
guardian be notified, in writing, of the specific charge or factual
allegations to be considered at the hearing, and that such written
notice be given at the earliest practicable time, and in any event
sufficiently in advance of the hearing to permit preparation.

In re B.E., 875 N.W.2d 181, 187 (Iowa Ct. App. 2015) (internal quotation marks

and citations omitted).

Here, the termination petition states:

The parent-child relationship now existing between the child and the
parents should be terminated because of the grounds specified in
§ 232.116 Iowa Code as follows:
(e) (1) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(2) The child has been removed from the physical custody of
the child’s parents for a period of at least six consecutive months.
(3) There is clear and convincing evidence that the parents
have not maintained significant and meaningful contact with the child
during the previous six consecutive months and have made no
reasonable efforts to resume care of the child despite being given
the opportunity to do so.

(h) (1) The child is three years of age or younger.
(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 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.

The petition thus quotes the paragraphs (e) and (h) of subsection (1) in their

entirety. We are convinced the mother had notice of the specific factual allegation
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to be considered at the hearing. The juvenile court did not err in denying the motion

to dismiss.

Turning to the mother’s substantive claims, she asserts there is not clear

and convincing evidence to establish the grounds to terminate her parental rights,

termination of her parental rights is not in the child’s best interests, and the strong

bond between her and the child should preclude termination.

Grounds exist. The mother concedes the child is under three years of age,

was adjudicated a CINA on November 4, 2019, and has been out of her custody

for more than a year—which is twice the statutory period. See Iowa Code

§ 232.116(1)(h)(1)–(3). She argues, though, the State has failed to prove the child

cannot be returned to her at the present time. Section 232.116(1)(h)(4)’s reference

to “the present time” means at the time of termination hearing. In re A.M., 843

N.W.2d 100, 111 (Iowa 2014); D.W., 791 N.W.2d at 707.

The mother has a long-standing substance-abuse addiction. See A.B., 815

N.W.2d at 776 (“We have long recognized that an unresolved, severe, and chronic

drug addiction can render a parent unfit to raise children.”). The mother had a child

prior to N.K., who also was removed from the mother’s care after testing positive

for methamphetamine. N.K.’s umbilical cord tested positive for methamphetamine

and marijuana at birth. The mother finally entered an inpatient-treatment program

on September 21, 2020—about a year after N.K.’s removal and after the

termination-of-parental-rights petition was filed. The mother admitted she

continued to use methamphetamine throughout the juvenile court proceedings and

she tested positive for methamphetamine at the time she entered treatment. She

was about six months pregnant at admission. At the time of the December 2020
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termination hearing, the mother was soon to give birth to a child and had been

substance free for about eighty days. It is clear the mother’s substance-abuse

issues are far from resolved.

She argues N.K. could be returned to her custody in the treatment facility

because there was a support system there for herself and the child. However, the

facility programmers did not recommend N.K. be returned to the mother yet

because she was at the beginning phases of treatment and had just started to

engage in programming. We agree with the juvenile court’s findings:

[The mother] has made attempts, but has reverted to old behaviors
[and] continued to use methamphetamine for the last year while the
CINA case was pending. At the time of the termination hearing, she
was in the House of Mercy program, but tested positive for
methamphetamine use on the day she was admitted and is pregnant
with another child and continuing to use methamphetamine with a
knowledge of the dangers that she is exposing her unborn child to.
As a result of the parents’ choices, [N.K.] cannot return to either
parent at this time. Despite the services provided, the parents have
not been able to make the changes needed to effectively parent their
child. They are not able to meet their own physical, mental, and
emotional needs, much less that of their child. Termination of their
parental rights and adoption will allow for [N.K.] to continue to
experience a safe and stable home.

Termination is in the child’s best interests.3 We encourage the mother to

remain in treatment. Yet, N.K. has waited more than a year for her mother to learn

3 Statutory best interests are defined in section 232.116(2):
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. This consideration may
include any of the following:
....
(b) For a child who has been placed in foster family care by a
court or has been voluntarily placed in foster family care by a parent
or by another person, whether the child has become integrated into
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to be a parent and provide a stable home. She cannot wait any longer. See id.

at 777 (“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.” (citation omitted)).

N.K. has resided with the foster parents for all but one month of her life.

She has bonded with them and sees them as her parents. They have provided a

stable, loving home. They are interested in adopting her, and that is the

recommendation of the DHS and the child’s guardian ad litem. We conclude

termination of the mother’s parental rights and adoption is in the child’s best

interests.

The parent-child bond does not preclude termination of parental rights. The

exceptions to termination of parental rights found under section 232.116(3) are

permissive, not mandatory. In re A.S., 906 N.W.2d 467, 475 (Iowa 2018). It is

within the court’s discretion to consider the circumstances of the case and the best

interests of the child in determining whether to apply the factors. A.M., 843 N.W.2d

at 113. One such factor allows avoidance of termination 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). This record does not establish such a close bond. The mother

claims there is a “strong bond” between her and the child, but there is no evidence

the foster family to the extent that the child’s familial identity is with
the foster family, and whether the foster family is able and willing to
permanently integrate the child into the foster family.
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the mother's relationship with N.K. is so close it would be detrimental to N.K. if

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

rights.

AFFIRMED.