In the Interest of L.A., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 24-0319
Filed April 10, 2024

IN THE INTEREST OF L.A.,
Minor Child,

K.S., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Clarke County, Monty Franklin,

Judge.

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

AFFIRMED.

Amanda Demichelis of Demichelis Law Firm, P.C., Chariton, for appellant

mother.

Brenna Bird, Attorney General, and Natalie Hedberg, Assistant Attorney

General, for appellee State.

Chira L. Corwin of Corwin Law Firm, Des Moines, attorney and guardian ad

litem for minor child.

Considered by Greer, P.J., Chicchelly, J., and Doyle, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
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DOYLE, Senior Judge.

A mother appeals the termination of her parental rights to her child. She

contends there is insufficient evidence establishing the statutory grounds for

termination. She also contends termination is not required under Iowa Code

section 232.116(3) (2023). We review her claims de novo. See In re L.B., 970

N.W.2d 311, 313 (Iowa 2022).

The child was born in August 2022 and came to the attention of the Iowa

Department of Health and Human Services (HHS) in January 2023. The were

concerns that the mother was neglecting to meet the child’s medical needs, 1 and

the mother admitted using methamphetamine. The child was placed in the care of

relatives as part of a safety plan, and the State petitioned to adjudicate the child

as a child in need of assistance (CINA). The juvenile court granted the petition in

March 2023 and placed the child in the legal custody of the HHS, which continued

the relative placement.

Throughout the CINA proceedings, the mother was enrolled in outpatient

substance-abuse and mental-health treatment, but her attendance at scheduled

1 The child was born with a ventricular septal defect—a hole in the wall that
separates the chambers of the heart. The condition can stress the lungs and
increase the risk of respiratory infections. The child contracted RSV and
COVID-19 in late November 2022 and was diagnosed with RSV again in early
January 2023. On January 8, the child was admitted to critical care with
pneumonia. Within the hour, she was flown to Blank Children’s Hospital because
her oxygen level dropped dangerously low, and she remained hospitalized for ten
days. The child was prescribed a medication when she was discharged on
January 19. The mother had not picked up the medication by January 21, when
she brought the child to the emergency room for care. As a result, the HHS issued
a founded report of denial of critical care against the mother.
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appointments was described as sporadic.2 The mother tested positive for

methamphetamine in September 2023 but claimed it resulted from using a friend’s

vape pen without knowing it contained the drug. She failed to provide a sample

for drug testing when the HHS requested one in January 2024. There were

concerns about domestic violence in the home.

In December 2023, the State petitioned to terminate the mother’s parental

rights. The mother did not attend the February 2024 termination hearing. At the

hearing, the social work case manager testified that the mother made “hardly any

progress” during the CINA proceedings to allow for the child’s safe return to her

custody and the situation was “pretty similar” to when the State petitioned for the

CINA adjudication. Both the HHS and the guardian ad litem recommended

terminating the mother’s parental rights.

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

section 232.116(1)(e) and (h). The mother challenges both grounds, but we may

affirm if the record supports termination under either. See In re A.B., 815 N.W.2d

764, 774 (Iowa 2012). To terminate parental rights under section 232.116(1)(h),

the evidence must show:

(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 of the last twelve months, or for the
last six consecutive months and any trial period at home has been
less than thirty days.

2 Between February and November 2023, the mother attended nineteen out of

thirty-seven scheduled appointments; she cancelled ten and failed to show for
eight.
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(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 mother only disputes the sufficiency of the evidence showing the fourth

element: that the child could not be returned to her care at the time of the

termination hearing because doing so would expose the child to any harm

amounting to a new CINA adjudication. See In re D.W., 791 N.W.2d 703, 707

(Iowa 2010) (interpreting the term “at the present time” to mean “at the time of the

termination hearing”); In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App. 2016)

(stating that a child cannot be returned to a parent’s custody as provided in

section 232.102 if doing so would expose the child to any harm amounting to a

new CINA adjudication).

Clear and convincing evidence shows the child could not be returned to the

mother’s custody at the time of the termination hearing. The department changed

its permanency recommendation to termination of parental rights because the

mother made little to no progress in addressing the concerns that led to the CINA

adjudication. As the social work case manager testified, the mother remained in a

similar situation to the one she was in at the time of the adjudication. As a result,

her visits with the child remained fully supervised. Because the concerns that

existed at the time of the CINA adjudication persisted at the time of the termination

hearing, returning the child to the mother’s custody would expose the child to the

type of harm that would result in a CINA adjudication.

The mother also contends termination is unnecessary under

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

relationship between the parent and child” in some cases. The mother seeks to
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avoid termination under section 232.116(3)(a), which applies when “[a] relative has

legal custody of the child,” and 232.116(3)(c), which applies when “[t]here is clear

and convincing evidence that the termination would be detrimental to the child due

to the closeness of the parent-child relationship.”

The termination order states that “[r]elatives of the child in interest do not

have legal custody of the child.” The record supports this finding; although the

child was placed in the care of relatives, the court gave legal custody to the HHS.

Section 232.116(3)(a) does not apply. See In re A.M., 843 N.W.2d 100, 112-13

(Iowa 2014) (noting that section 232.116(3)(a) did not apply because although the

child was in a pre-adoptive placement with relatives, the child was not in their legal

custody).

The mother presented no evidence of the bond she has with the child. The

juvenile court found “[t]he bond between the child and the child’s parents is

described as: minimal to nonexistent due to the length of the removal and lack of

significant, regular contact.” The court concluded “[a]ny potential problems that

may be caused by termination of their parental rights will be far outweighed by the

stability, certainty, and permanency that termination will provide for [the child].” We

agree. The court properly declined to apply the parental bond exception.

Because the State proved the grounds for termination under Iowa Code

section 232.116(1)(h), the exception under section 232.116(3)(a) does not apply,

and the mother has not proved by clear and convincing evidence that the exception

under section 232.116(3)(c) applies, we affirm the termination of the mother’s

parental rights.

AFFIRMED.