In the Interest of A.F., L.M.F., D.M.F., and Y.F., Minor Children, N.F.K., Mother

IN THE COURT OF APPEALS OF IOWA

No. 15-0768
Filed July 9, 2015

IN THE INTEREST OF A.F., L.M.F., D.M.F., AND Y.F.,
Minor Children,

N.F.K., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Sylvia A. Lewis,

Judge.

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

Jean Lawrence and John B. Whiston of the Clinical Law Program,

University of Iowa College of Law, Iowa City, for appellant mother.

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

Attorney General, Janet M. Lyness, County Attorney, and Patricia Weir, Assistant

County Attorney, for appellee State.

Anthony Haughton of Linn County Advocate, attorney and guardian ad

litem for minor children.

Considered by Tabor, P.J., McDonald, J., and Goodhue, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, S.J.

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

She contends termination is not in the children’s best interests. She also

contends termination is not required because the children are in the care of a

relative.

I. BACKGROUND FACTS AND PROCEEDINGS.

There are four children at issue in the present case. The children were all

born of the same mother, a citizen of Honduras who entered the United States

illegally. Each child has a different father. The parental rights of three of the

fathers were also terminated, though the termination of their parental rights is not

at issue in this appeal.

The family first came to the attention of the Department of Human

Services (DHS) in April 2009, when the mother had only two children, A.F. and

L.M.F. At the time, A.F. was four years old and suffered serious physical injuries

inflicted by L.M.F.’s father. As a result, both A.F. and L.M.F. were removed and

adjudicated to be children in need of assistance (CINA). L.M.F.’s father was

convicted of domestic abuse assault for abusing the mother and was eventually

deported to Honduras. The children were returned to the mother’s care in May

2010, and the CINA proceedings were terminated in November 2010.

Two additional claims of abuse were made following the close of the initial

CINA proceedings. In April of 2012, A.F. reported that L.M.F.’s father had

sexually abused her. After an investigation, the report was determined to be

unfounded. In June of 2012, a confirmed finding of physical abuse was made

against the mother after it was reported her paramour had left bruises on L.M.F.
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During the summer of 2013, the mother was investigated for selling

methamphetamine. The children were present with her during one transaction

with an undercover agent. In September 2013, law enforcement officers at the

mother’s home discovered L.M.F., then four years old, tied up in a bedroom

closet with visible marks and bruises up his arm, as well as his chest and back.

The mother admitted she instructed her live-in boyfriend to tie L.M.F. up as a

consequence for inappropriate behaviors. Approximately 1000 grams of

methamphetamine was also found in the home, some of it within the children’s

reach.

A.F, L.M.F., and D.M.F. were removed from the mother’s care and

adjudicated CINA pursuant to Iowa Code sections 232.2(6)(b), (c)(2), and (p)

(2013). At the time, the mother was pregnant with Y.F. After birth, Y.F. was also

removed from the mother’s care and adjudicated CINA pursuant to sections

232.2(6)(b), (n), and (p).

The mother has been incarcerated since September 2013, and pled guilty

to conspiracy to distribute methamphetamine. She is not expected to be

released from federal prison until 2020. Because she is not a United States

citizen, she faces possible deportation upon her release.

The State filed a petition seeking to terminate the mother’s parental rights

pursuant to Iowa Code sections 232.116(1)(b), (d), (f), and (j). Following a

hearing, the juvenile court entered its order terminating the mother’s parental

rights pursuant to sections 232.116(1)(f) and (j). The mother appeals.
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II. SCOPE AND STANDARD OF REVIEW.

We review termination proceedings de novo. In re J.C., 857 N.W.2d 495,

500 (Iowa 2014). In so doing, we review both the facts and the law to adjudicate

rights anew. Id. While we give weight to the juvenile court’s fact findings—

especially where witness credibility is concerned—we are not bound by them. In

re B.C., 845 N.W.2d 77, 79 (Iowa Ct. App. 2014). Our overriding concern is the

children’s best interests. J.C., 857 N.W.2d at 500.

III. TERMINATION OF THE MOTHER’S PARENTAL RIGHTS.

Before terminating parental rights, the court must engage in a three-step

analysis. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). First, the court must

determine if the State has proved one of the grounds for termination set forth in

Iowa Code section 232.116(1). Id. If that ground has been established, the

second step is to determine whether termination of parental rights would be in

the children’s best interests as set forth in section 232.116(2). Id. at 706-07. If

the court determines that termination is in the children’s best interests, the final

step is consider whether any of the statutory exceptions outlined in section

232.116(3) should preclude termination. Id. at 707.

The mother does not dispute the State proved the grounds for termination

set forth in sections 232.116(1)(f) and (j). She instead challenges the termination

at the second and third steps of the analysis, arguing termination is not in the

children’s best interests and her parental rights to D.M.F. should not be

terminated because that child is in the father’s custody as set forth in section

232.116(3)(a). Because she concedes the first step of the analysis, we focus on

the second and third. See P.L., 778 N.W.2d at 40.
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A. Best Interests.

The mother gives five arguments as to why termination is against the

children’s best interests. She notes the strong bond between the children and

the unlikelihood they will end up in the same adoptive home. She further notes

L.M.F.’s serious behavioral issues and mental health diagnoses make it difficult

to place him in another home. The mother also argues the two older children

were raised in the Hispanic culture and there are few Hispanic adoptive homes

available to preserve their culture. Finally, she notes D.M.F. has already

achieved permanency and argues there is no showing ongoing contact with her

would be detrimental to the child.

In deciding whether to terminate parental rights, we must “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). In considering the

children’s best interests, we may consider “[w]hether the parent’s ability to

provide the needs of the child is affected by . . . the parent’s imprisonment for a

felony.” Id. § 232.116(2)(a).

The mother is currently incarcerated on federal drug charges and is not

expected to be released until 2020. At that time, the three oldest children will

have been out of her care for approximately seven years and the youngest child

will never have been in the mother’s care. A.F., who will be fifteen years of age

at that time, will have had the most experience in the mother’s care—

approximately half of her life. During that time she suffered severe physical

abuse, witnessed domestic violence, and witnessed the physical abuse of L.M.F.
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As a result of that abuse, L.M.F. has serious behavioral issues and mental health

diagnoses. D.M.F., who was not yet two years old at the time the mother was

arrested, will have little memory of the mother. Upon the mother’s release, her

deportation is likely. Even if she was not deported, the mother would require

additional time to prove she has resolved her substance abuse issues, to show

she can ensure the children’s safety, and to develop bonds with the children.

This is time the children simply do not have.

The mother’s arguments against termination are not compelling. Although

there is a parental interest in the integrity of the family, that interest is not

absolute. In re E.B.L., 501 N.W.2d 547, 551 (Iowa 1993). Once the statutory

grounds for termination have been found to exist, termination of parental rights—

rather than a permanency order—is the legally preferred alternative. See In re

L.M.F., 490 N.W.2d 66, 67–68 (Iowa Ct. App. 1992); see also In re T.C., 522

N.W.2d 106, 108 (Iowa Ct. App. 1994) (noting that a case must be viewed with “a

sense of urgency” once the time limits set forth in the statute have passed). Nor

is “[a]n appropriate determination to terminate a parent-child relationship . . .

countermanded by the ability and willingness of a family relative to take the

child.” In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). Child custody should be

quickly fixed and little disturbed. In re A.C., 415 N.W.2d 609, 613 (Iowa 1987).

Considering the mother’s incarceration, her parenting deficiencies, her

past involvement in serious criminal activity, and the obstacles facing the mother

before she could be reunited with the children, we find termination is in the

children’s best interests.
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B. Relative Placement.

The mother next contends her parental rights to D.M.F. should not be

terminated because D.M.F. has been in the care of the father since removal from

the home in September 2013. Iowa Code section 232.116(3)(a) states “[t]he

court need not terminate the relationship between the parent and child if the court

finds [a] relative has legal custody of the child.”

Application of section 232.116(3) is permissive, not mandatory. In re

J.L.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 C.L.H., 500 N.W.2d 449, 454 (Iowa Ct. App. 1993), overruled

on other grounds by P.L., 778 N.W.2d at 39–40. Given the grounds for

termination have been proved and termination is in the child’s best interests, we

decline to apply section 232.116(3)(a) to preclude termination. See J.C., 857

N.W.2d at 502 (noting the court’s obligation to move urgently to achieve the ends

that will serve the child’s best interests).

AFFIRMED.