In the Interest of M.B., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 24-1917
Filed April 9, 2025

IN THE INTEREST OF M.B.,
Minor Child,

S.S., Father,
Appellant,

M.B., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Kimberly Ayotte, Judge.

A father and mother separately appeal the termination of their parental

rights to their child. AFFIRMED ON BOTH APPEALS.

Michael A. Horn of Horn Law Offices, Des Moines, for appellant father.

Andrea B. McGinn of The Law Shop Iowa, Van Meter, for appellant mother.

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

General, for appellee State.

Jami J. Hagemeier, Clive, attorney and guardian ad litem for minor child.

Considered without oral argument by Tabor, C.J., and Schumacher and

Chicchelly, JJ.
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SCHUMACHER, Judge.

The district court terminated the parental rights of the mother and father of

three-year-old M.B. The parents separately appeal. The father challenges the

statutory ground relied on by the district court, contends termination is not in the

child’s best interests, and asserts that a guardianship should be established in lieu

of termination. The mother asserts termination is not in the child’s best interests

and, like the father, argues that a guardianship should be established.

I. Background Facts and Prior Proceedings

M.B., born in 2021, is not a stranger to the Iowa Department of Health and

Human Services (HHS). M.B. was removed from his mother’s custody at the time

of his birth after he tested positive for methamphetamine and his mother tested

positive for methamphetamine and amphetamine. The hospital reported that on

the day of M.B.’s birth, the mother was “actively using” in the bathroom of her

hospital room. A child abuse assessment in September 2021 deemed the

allegations against the mother founded based on the presence of illegal drugs in

the child, with M.B. listed as the victim.

M.B.’s father was incarcerated. M.B. was adjudicated as a child in need of

assistance (CINA), and his mother entered inpatient treatment soon after, with

M.B. residing with his mother while she was in treatment. The mother began taking

Suboxone as part of her medically assisted treatment. In October 2022, the

mother completed treatment, and M.B.’s case was successfully closed, with M.B.

remaining with his mother.

Just a little over a year after case closure, M.B. again came to the attention

of HHS when it was discovered that the mother was abusing Suboxone while
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caring for M.B. The child was removed from parental custody in December 2023

and adjudicated as a CINA for a second time in February 2024. In a second child

abuse assessment, HHS found the mother was using dangerous substances, with

M.B. again listed as the victim. The assessment noted a photo of the mother

passed out with drug paraphernalia in her hand in bed with M.B. sleeping next to

her.1

In the second CINA proceeding, the mother did not act to address her

substance-use issue. She participated in an evaluation at the House of Mercy in

March 2024, reporting her most recent use of methamphetamine and opioids to be

three days earlier. But she failed to enter residential treatment. She completed a

second substance-use evaluation in October 2024 and was diagnosed with severe

alcohol-use disorder, opiate use, and severe cannabis-use disorder. She reported

the use of alcohol, marijuana, and “benzos” within thirty days before this

evaluation. She again failed to enter residential treatment.

Following M.B.’s second adjudication, the mother did not comply with

requested drug screens and individual therapy. And her visits with M.B. were

1 This photo was offered and admitted in the underlying CINA proceeding.

As an aside, the exhibits in this appellate record do not contain a physical
exhibit sticker or an electronic exhibit stamp. “The clarity of the appellate record
benefits by having exhibit stickers on the electronically submitted exhibits. The
exhibits contained in this record do not have exhibit stickers or other markings
indicating the number of the individual exhibits.” In re N.G., No. 19-1732, 2020 WL
825965, at *1 n.3 (Iowa Ct. App. Feb. 19, 2020). “Our independent review of the
record is decidedly more difficult due to the absence of exhibit stickers or other
identifying markers on the bulk of the exhibits. It is critical for review of the trial
court record that the exhibits contain an identifier on the exhibit.” In re A.D., No. 19-
1459, 2020 WL 105093, at *4 n.7 (Iowa Ct. App. Jan. 9, 2020); accord In re J.W.,
No. 14-0515, 2014 WL 3749419, at *2 n.1 (Iowa Ct. App. July 30, 2014) (“It is
essential for our review that exhibits have some identifying information.”).
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inconsistent. Since the most recent removal, the mother attended only thirty-two

out of seventy-nine offered visits. The mother’s housing situation also remained

unstable, with the mother vacillating from staying at hotels to staying with friends.

The father, as in the first CINA case, remained incarcerated during the

pendency of the proceedings giving rise to this appeal. He is not eligible for parole

until January 2027. While incarcerated, he tested positive for Suboxone despite

not having a prescription for this drug. He exercised fairly regular phone contact

with M.B. and also began video visits in the months preceding the termination

hearing.

II. Standard of Review

“We review proceedings to terminate parental rights de novo.” In re H.S.,

805 N.W.2d 737, 745 (Iowa 2011). “We give weight to the juvenile court’s factual

findings, especially when considering the credibility of witnesses, but we are not

bound by them.” Id.

III. Analysis

A. Statutory Ground

Our review follows a three-step process that involves determining if a

statutory ground for termination has been established, whether termination is in

the child’s best interests, and whether any permissive exceptions should be

applied to preclude termination. In re A.B., 957 N.W.2d 280, 294 (Iowa 2021).

We turn first to the father’s claim related to the statutory ground. The district

court terminated the father’s parental rights under Iowa Code

section 232.116(1)(h) (2024), which permits termination upon clear and convincing

proof that (1) the child is three years of age or younger; (2) the child has been
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adjudicated a CINA; (3) the child has been removed from the physical custody of

the parents for at least six of the last twelve months; and (4) the child cannot be

returned to the custody of the parent.

But the father’s petition on appeal does not address any of the four elements

contained in this ground.2 He does not contest that M.B. is three years of age or

younger, has been adjudicated to be a CINA, or that M.B. has been removed from

the physical custody of his parents for at least six of the last twelve months without

any trial home placements. And the father concedes that M.B. could not be

returned to his custody as he is incarcerated. We conclude clear and convincing

evidence supports termination of the father’s parental rights under Iowa Code

section 232.116(1)(h).

B. Best Interests

We next consider whether termination is in the child’s best interests, which

both parents contest. In doing so, 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.” In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (quoting 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.” Id. at 41.

2 As noted by the State, the father’s argument about the statutory grounds is
directed at the child’s best interests rather than a challenge to the statutory
grounds.
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We agree with the district court that termination of both parents’ parental

rights is in M.B.’s best interests. He could not safely be returned to the custody of

either parent. On the other hand, the child’s relatives have provided him with the

necessary safety and structure. They are also willing to permanently integrate the

child into their family through adoption. See Iowa Code § 232.116(2)(b).

Termination is in the child’s best interests.

C. Guardianship

Both parents contend a guardianship should be established in lieu of

termination. Like the district court, we conclude this is not an appropriate

permanency option for M.B. “[A] guardianship is not a legally preferable alternative

to termination.” In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App. 2017). M.B. was only

three years old at the time of the termination hearing. And the relative placement,

while willing to act as a guardian if the court ordered such, favored adoption. Given

the child’s young age, the fact that he has spent most of his life out of parental

custody, and the relative placement’s willingness to adopt, we agree with the

district court that a guardianship is not the appropriate permanency option.3

IV. Conclusion

Clear and convincing evidence supports the termination of the parents’

parental rights, termination of the parents’ parental rights is in the child’s best

interest, and a guardianship is not the appropriate permanency option.

AFFIRMED ON BOTH APPEALS.

3 To the extent that either parent argues that a permissive exception should be

applied because a relative has legal custody, we determine such exception to be
inapplicable, as custody of M.B. was placed with HHS.