In the Interest of R.D., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 24-0704
Filed July 24, 2024

IN THE INTEREST OF R.D.,
Minor Child,

M.D., Father,
Appellant,

D.L., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Brent Pattison, Judge.

A mother and father separately appeal the termination of their parental

rights to a child. AFFIRMED ON BOTH APPEALS.

Adam E. Brewster of Neighborhood Law Group of Iowa, West Des Moines,

for appellant father.

Felicia M. Bertín Rocha of Bertín Rocha Law, P.C., Urbandale, for appellant

mother.

Brenna Bird, Attorney General, and Lisa Jeanes, Assistant Attorney

General, for appellee State.

Megil Dashawn Patterson of Youth Law Center, Des Moines, attorney and

guardian ad litem for minor child.

Considered by Ahlers, P.J., and Chicchelly and Buller, JJ.
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CHICCHELLY, Judge.

A mother and father separately appeal the order terminating their parental

rights. The mother challenges each step of the termination analysis, In re A.S.,

906 N.W.2d 467, 472–73 (Iowa 2018) (describing the three-step analysis), and

asks for more time. The father contends that termination is not in the child’s best

interests and seeks to avoid termination by having the child placed in the custody

of a relative. Following a de novo review, see In re A.B., 956 N.W.2d 162, 168

(Iowa 2021), we affirm the order terminating each of their parental rights.

I. Background Facts and Proceedings.

The child came to the attention of the Iowa Department of Health and

Human Services (HHS) in July 2023 after the mother tested positive for heroin,

amphetamines, and methadone when she was admitted to the hospital to give

birth. The child’s umbilical cord tested positive for methadone, and the child

showed signs of withdrawal. As a result, the juvenile court removed the child from

the parents’ custody when the child was two weeks old. HHS placed the child in

foster care, and the child remains in the same placement.

The State petitioned to adjudicate the child as a child in need of assistance

(CINA). The parents stipulated that the child was CINA, and the juvenile court

entered the adjudicatory order in September. The father’s paternity was confirmed

by paternity testing completed the same month.

The mother has a history of substance use that extends over twenty years.

Her substance-use issues resulted in the termination of her parental rights to two

other children: one in 2009 and the other in 2014. The mother admits she has

struggled with methamphetamine and heroin for several years. She entered
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inpatient treatment in September, but she was discharged eight days later for

violating the program’s policies. The mother showed signs of being under the

influence during a supervised visit with the child, and she was arrested on drug

charges in November. She never provided samples for drug testing when asked

and never completed treatment.

The father also has a long history of substance use. He admits he uses

alcohol and marijuana regularly and uses cocaine “socially.” The father was

enrolled in inpatient treatment for about five weeks, but he was discharged in

November for using methamphetamine and attempting to fake the results of a drug

screening. In January 2024, he was arrested on drug charges after he was located

inside a vehicle driven by the mother.

The State petitioned to terminate the mother’s and father’s parental rights.

The termination hearing was held in March.1 At the time of the termination hearing,

the father was incarcerated after pleading guilty to possession of fentanyl with

intent to deliver and possession of contraband in a correctional facility, for which

he received consecutive sentences totaling fifteen years in prison. The mother

was also incarcerated at the time of the hearing after pleading guilty to possession

of methamphetamine, second offense, and receiving a suspended sentence. The

mother’s attorney moved to continue the hearing until the mother’s release from

jail, but the juvenile court denied the motion based on the late request and the

importance of addressing permanency for the child.

1 When neither parent appeared at a February permanency hearing, it was reset

to coincide with the termination hearing the next month.
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At the termination hearing, the HHS worker testified that the child was doing

well in his foster-home placement. HHS was also investigating the possibility of

placing the child with the paternal grandmother, who lives outside of Iowa. The

mother asked for a three-month extension of permanency to attend inpatient

treatment. In the alternative, she asked the court to place the child with the

paternal grandmother. The father admitted he could not take custody of the child

due to his incarceration, but he argued the mother could be successful if she was

given more time.

The juvenile court found the State proved the grounds for terminating the

mother’s parental rights under Iowa Code section 232.116(1)(g) and (h) (2024) and

the father’s parental rights under section 232.116(1)(h). It also found that

termination is in the child’s best interests and none of the circumstances set out in

section 232.116(3) apply. It terminated the mother’s and father’s parental rights

and placed the child in the custody of HHS for pre-adoptive care.

II. Mother’s Appeal.

We start our analysis with the termination of the mother’s parental rights.

The mother challenges the evidence showing the grounds for termination and asks

for more time. She also contends termination is not in the child’s best interests

and seeks to avoid termination based on one of the grounds set out in Iowa Code

section 232.116(3).

We begin with the grounds for termination. See A.S., 906 N.W.2d at 472–

73. Because the juvenile court terminated the mother’s parental rights on two

statutory grounds, “we may affirm the juvenile court’s order on any ground we find

supported by the record.” In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). We focus
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our analysis on Iowa Code section 232.116(1)(h). The mother does not dispute

that the State proved the first three requirements for termination under this section.

See Iowa Code § 232.116(1)(h)(1)-(3) (applying if a child is three or younger, has

been adjudicated CINA, and has been removed from the parent’s custody for six

months). She challenges the fourth element, which requires clear and convincing

evidence showing the child cannot be returned to the parent’s custody at the time

of the termination hearing. See Iowa Code § 232.116(1)(h)(4); A.B., 956 N.W.2d

at 168.

The child cannot be returned to the mother’s custody because at the time

of the termination hearing, the mother was in jail. The mother argues that she was

about to be released from jail, so “the child could have been returned to her care

within a few days after the termination hearing.” But even if the mother were not

in jail, the child could not be returned to her custody because the substance-use

issues that led to the CINA adjudication remain unresolved. See In re W.M., 957

N.W.2d 305, 313 (Iowa 2021) (“A long history of substance abuse, repeated

relapses, and demonstrated inability to maintain sobriety outside a supervised

setting demonstrates the child[] could not have been returned to [the mother’s]

care at the time of the termination hearing.”). Clear and convincing evidence

supports terminating the mother’s parental rights under section 232.116(1)(h).

As an alternative to termination, the mother asks us to delay permanency

for six months. See Iowa Code § 232.104(2)(b) (allowing the court to continue a

child’s placement for up to six months if the need for the child’s removal from the

home will no longer exist at the end of that period). But to delay permanency, we

must “enumerate the specific factors, conditions, or expected behavioral changes
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which comprise the basis for the determination that the need for removal of the

child from the child’s home will no longer exist at the end of the additional six-

month period.” Considering the mother’s substance-use history, failed past

attempts at sobriety, and lack of engagement in services during these proceedings,

we cannot find the need for removal would be eliminated if the mother was given

more time.

We next consider “whether the best-interest framework as laid out in

section 232.116(2) supports the termination of parental rights.” See A.S., 906

N.W.2d at 473 (citation omitted). When determining best interests, we “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); accord In

re L.T., 924 N.W.2d 521, 528 (Iowa 2019) (stating that “we look to the child’s long-

range as well as immediate interests, consider what the future holds for the child

if returned to the parents, and weigh the child’s safety and need for a permanent

home” (cleaned up)).

Clear and convincing evidence shows that termination is in the child’s best

interests. The child was removed from the mother two weeks after birth and was

never returned to her custody. The mother’s substance-use issues impede the

mother from providing the child with the care he requires. Her past performance

casts doubt on her ability to provide that care. See In re B.H.A., 938 N.W.2d 227,

233 (Iowa 2020) (noting that the mother’s past performance indicates the quality

of care she can provide in the future). While the mother squandered the precious

time afforded during the CINA proceedings, his pre-adoptive foster placement
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provided the long-term safety and stability that the child needs. The child is bonded

with his foster parent and is thriving in her care. Although terminating parental

rights may hurt the mother, the child’s needs supersede hers. See In re C.S., 776

N.W.2d 297, 300 (Iowa Ct. App. 2009) (“[A]t some point, the rights and needs of

the child[] rise above the rights and needs of the parent.”).

Finally, “we consider whether any exceptions in section 232.116(3) apply to

preclude termination of parental rights.” See A.S., 906 N.W.2d at 473. The mother

argues against terminating her parental rights under section 232.116(3)(c) (stating

that the court “need not terminate the relationship between the parent and child 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”). In support of her argument, she notes that she nursed the child

“from the time of his birth through his removal.” But that two-week period pales in

comparison to the eight months that passed from the child’s removal to the

termination hearing. Further, as the juvenile court noted, any bond established

between the mother and child has been harmed by the mother’s absence due to

her substance use and incarceration. The mere existence of a parent-child bond

is insufficient. To avoid termination under section 232.116(3)(c), the mother bears

the burden of showing by clear and convincing evidence “that, on balance, [the

parent-child] bond makes termination more detrimental [for the child] than not.”

W.M., 957 N.W.2d at 315. The mother has not shown that the strength of their

bond outweighs the child’s need for permanency such that termination of her

parental rights will harm the child.
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Having found clear and convincing evidence supporting termination under

Iowa Code section 232.116(1)(h), termination is in the child’s best interests, and

the circumstances listed in section 232.116(3) do not apply to the mother, we affirm

the termination of her parental rights. We turn then to the father’s appeal.2

III. Father’s Appeal.

The father contends the juvenile court erred by terminating his parental

rights because “reasonable efforts were not followed to pursue familial placement

as required under Iowa Code [section] 232.117(3).”3 The father requested that

HHS consider the paternal grandmother as a potential placement for the child. In

a report filed one week before the termination hearing, HHS stated that it had

started obtaining a home study of the paternal grandmother’s home but no findings

were available yet.

When the court transfers custody of the child to HHS for placement after a

dispositional hearing, Iowa Code section 232.102(6) requires HHS to “make every

reasonable effort to return the child to the child’s home as quickly as possible

consistent with the best interests of the child.” But this requirement “is not viewed

as a strict substantive requirement of termination.” L.T., 924 N.W.2d at 527

2 In her appellate brief, the mother states that if we affirm the termination of her

parental rights, she joins the father’s arguments about the child’s placement. We
address those claims below.
3 The father appears to conflate the statute addressing transfer of legal custody

and placement of a child following a dispositional hearing with the statute
addressing a child’s custody and placement following termination. Compare Iowa
Code § 232.102 (addressing the transfer of legal custody and placement of a child
after a dispositional hearing), with id. § 232.117(3) (addressing the transfer of
guardianship and custody of a child following termination of parental rights).
Although section 232.102 requires reasonable effort to return the child to the
parent’s custody, section 232.117(3) does not.
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(citation omitted). Rather, the scope of the services provided by HHS impacts the

State’s burden of showing the child cannot be safely returned to the parent’s

custody. Id.; accord Iowa Code § 232.116(1)(h)(4) (requiring the court to find that

the child cannot be returned to the custody of the child’s parents as provided in

section 232.102). The father concedes the State has proved by clear and

convincing evidence that the child cannot be returned to his custody at the time of

the termination hearing. Because the father’s incarceration prevents him from

taking custody of the child, the State has proved the grounds for termination under

section 232.116(1)(h).

Although placement of the child in the legal custody of a relative could affect

the decision to terminate parental rights, see Iowa Code § 232.116(3)(a) (providing

that the court need not terminate parental rights if “[a] relative has legal custody of

the child”), section 232.116(3)(a) does not apply because the child is not in the

paternal grandmother’s legal custody, see In re A.M., 843 N.W.2d 100, 113 (Iowa

2014) (declining to apply section 232.116(3)(a) to avoid termination because the

child was not in the grandparents’ legal custody). To the extent that the court could

apply the section to save the parent-child relationship if the paternal grandmother

was the child’s legal custodian, we note that it need not do so. Id. The court may

preserve parental rights based on section 232.116(3)(a) only if it serves the child’s

best interests. Id.

The father claims that any harm in terminating parental rights will be

lessened by placing the child with the paternal grandmother. But the record shows

that the child has never met the paternal grandmother, who lives in North Carolina.

It is hard to conceive how removing the child from the only home he has known
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and placing him with a stranger in another state would lessen the detriment of

terminating parental rights.

We affirm the termination of the father’s parental rights.

AFFIRMED ON BOTH APPEALS.