In the Interest of M.W., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 20-1096
Filed November 4, 2020

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

M.W., Father,
Appellant,

T.T., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Lynn Poschner, District

Associate Judge.

A mother and father each appeal the juvenile court order terminating their

parental rights. AFFIRMED ON BOTH APPEALS.

Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant

father.

Sarah E. Dewein of Cunningham & Kelso, P.L.L.C., Urbandale, for appellant

mother.

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

Attorney General, for appellee State.

Yvonne C. Naanep, Des Moines, attorney and guardian ad litem for minor

child.

Considered by Mullins, P.J., and May and Schumacher, JJ.
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SCHUMACHER, Judge.

A mother and father each appeal the juvenile court order terminating their

parental rights. There is clear and convincing evidence in the record to support

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

interests. The record is void of evidence that would support either parent’s request

for additional time to work on reunification. Lastly, none of the exceptions in Iowa

Code section 232.116(3) (2020) should be applied to prevent termination under

these facts. We affirm termination of the parents’ rights.

I. Background Facts & Proceedings

M.W., father, and T.T., mother, are the parents of M.W., who was born in

2017. The child was removed from the mother’s custody on March 19, 2019, due

to concerns the mother was using methamphetamine and not providing adequate

care and housing for the child. The father was in prison in Minnesota. He

remained incarcerated throughout the juvenile court proceedings. The child was

placed in the custody of the maternal grandmother, where he remained at the time

of the termination hearing.

After the removal, the mother had only one face-to-face visit with the child,

which was on March 29, 2019. On April 22, the child was adjudicated to be in need

of assistance (CINA), pursuant to Iowa Code section 232.2(6)(c)(2) and (n) (2019).

The mother did not appear for the adjudication hearing. She moved to Florida with

her boyfriend. The mother did not cooperate with a request for an interstate

compact home study in September. While she participated in a second request in

November, her roommates would not cooperate, so the interstate compact home

study was not completed.
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For the first year after removal, the mother did not participate in

recommended therapeutic services. She did, however, participate in telephone

and video contact with the child. When the maternal grandmother supervised the

video visits, the mother was aggressive at times, and the mother and maternal

grandmother would argue while the child was on the telephone. The Iowa

Department of Human Services (DHS) then required the video visits to be

supervised by Family Safety, Risk, and Permanency (FSRP) services. The mother

was also combative on occasion with social workers on the telephone. She

indicated that she smoked marijuana and drank alcohol. The father had weekly

telephone contact from prison with the child. Due to his young age, the child was

not very interested in conversations with his parents on mobile devices.

On February 12, 2020, the State filed a petition seeking termination of the

parents’ rights. In March, the mother started a substance-abuse treatment

program. In June, she started participating in therapy for her mental-health

problems. The termination hearing commenced on June 24 and continued on

July 9. Between the first day of the hearing and the second day, the mother signed

a new lease with the same roommateswho would not cooperate with the interstate

compact home study. Also, by the second day of the hearing, the mother had

missed services in the previous week. The father testified his expected release

date from prison was January 2021. He will be on parole in Minnesota for twenty

months following his release.

The juvenile court terminated the mother’s parental rights under section

232.116(1)(e) and (h) (2020) and the father’s rights under section 232.116(1)(h).

The court stated, “[The child] has needed a caregiver to live with, to provide a safe
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home for him, to provide for him each day. . . . [He] should not have to wait

anymore for a resolution to who will take care of him into adulthood.” Also, “[t]he

court is unable to find that the need for removal will no longer exist at the end of [a

six-month] extension [of time].” The court determined termination of the parents’

rights was in the child’s best interests and declined to apply an exception contained

in Iowa Code section 232.116(3) to prevent termination. The mother and father

each appeal the juvenile court’s decision.

II. Standard of Review

Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d

764, 773 (Iowa 2012). The State must prove its allegations for termination by clear

and convincing evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). “‘Clear

and convincing evidence’ means there are no serious or substantial doubts as to

the correctness [of] conclusions of law drawn from the evidence.” Id. Our primary

concern is the best interests of the child. In re J.S., 846 N.W.2d 36, 40 (Iowa

2014).

III. The Mother

A. Sufficiency of the Evidence. The mother contends there is not

sufficient evidence in the record to support termination of her parental rights. “We

will uphold an order terminating parental rights where there is clear and convincing

evidence of the statutory grounds for termination.” In re T.S., 868 N.W.2d 425,

434 (Iowa Ct. App. 2015). “When the juvenile court orders termination of parental

rights on more than one statutory ground, we need only find grounds to terminate
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on one of the sections to affirm.” Id. at 435. We focus on the termination of the

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

The mother contests only the fourth element of section 232.116(1)(h)—

whether the child can be safely returned to her care. A child cannot be returned

“if by doing so the child would be exposed to any harm amounting to a new child

in need of assistance adjudication.” In re M.M., 483 N.W.2d 812, 814 (Iowa 1992).

“The threat of probable harm will justify termination, and the perceived harm need

not be the one that supported the child’s initial removal from the home.” Id. We

consider whether there is clear and convincing evidence to show a child could be

returned to a parent’s care at the time of the termination hearing. See In re A.M.,

843 N.W.2d 100, 111 (Iowa 2014).

At the time of the termination hearing, the mother had only just started

taking steps to address the problems that led to the removal of the child from her

home. The mother did not begin participating in substance-abuse treatment or

counseling for her mental health until after the termination petition was filed, nearly

a year after the removal of the child. Furthermore, by the second date of the

termination hearing, the mother had missed services the prior week. The mother’s

1 Section 232.116(1)(h) provides for termination of parental rights if the following
elements are met:
(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.
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residence remained in Florida in a home that had not been approved for

placement. The same problems that led to the CINA adjudication in April 2019

were present at the time of the termination hearing. We conclude the child could

not be safely returned to the mother’s care. See M.M., 483 N.W.2d at 814. We

find the statutory grounds for termination were met under section 232.116(1)(h).

B. Best Interests and Extension of Time. The mother also claims

termination of her parental rights is not in the child’s best interests. As part of her

best-interests argument, the mother asserts she should be given a six-month

extension to work on reunifying with her child. The mother admits there were

delays in the past, but she states this was due to a lack of insurance. She states

that she is now participating in services and asks for an extension of time.

We find termination of the mother’s parental rights is in the child’s best

interests. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (noting 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” (quoting Iowa Code § 232.116(2))). The child

needs the stability of a parent who is present to care for him. The mother’s actions

show she has not made the child a priority in her life. The child is in the custody

of a relative where he will have a permanent home.

The juvenile court may decide not to terminate parental rights if it finds there

is clear and convincing evidence that CINA proceedings should continue and

enters an order to extend the time for reunification in accordance with section

232.104(2)(b). Iowa Code § 232.117(5). The court may continue the proceedings
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for an additional six months if the court finds “the need for removal . . . will no

longer exist at the end of the additional six-month period.” Id. § 232.104(2)(b).

The juvenile court addressed this issue and found:

The Code also allows for the establishment of permanency through
an extension of permanency under 232.104(2)(b). The court is
unable to find that the need for removal will no longer exist at the end
of the extension. [The mother] has just begun to address the issues
that led to [the child] being removed from her care. For the vast
majority of this case—the first twelve months—[the mother] did not
take any steps to participate in a substance abuse evaluation or
mental health treatment. . . . Given the overall history of the case
there is no reason to believe that six more months would result in
reunification when so much time has already passed and
reunification of this young child is not possible and [the mother] only
began to address her substance abuse and mental health needs
when a termination of parental rights hearing was imminent.

We agree with the juvenile court’s conclusions on this issue.

C. Permissive Exception to Termination. As with her claim

concerning a six-month extension, the mother, as part of her best-interests

argument, also claims an exception contained in Iowa Code section 232.116(3)

should be applied, asserting the bond between herself and M.W. should prevent

termination. We reject this argument. At the time of the termination hearing, the

mother had not had any physical contact with the child for over a year, choosing

to move to Florida with her boyfriend around the time of removal rather than remain

in Iowa.2 While DHS attempted two separate interstate compact home studies on

the mother’s Florida residence, both were denied.

2We recognize some limitations the COVID-19 pandemic has placed on visitation.
However, in the instant case, the mother moved to Florida a year prior to the
outbreak of the pandemic, with the termination hearing beginning in June 2020.
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IV. The Father

A. Extension of Time. Like the mother, the father asks for additional

time to work on reunification with the child. He states that he expects to be

released from prison in January 2021. He asserts that he would be available to

care for the child after he is no longer incarcerated. He points out that he

consistently participated in telephone calls with the child. The father states he has

housing and employment secured upon his release from prison.

The juvenile court stated:

[The father] will be released from prison in roughly five months. Then
he will hopefully begin to use the skills he has learned in prison to
establish a stable and sober life for himself. This will be a new
challenge for [the father]. He has not lived in the community for
several years. There is not a reasonable likelihood that [the child]
could be placed in his custody with six months.

We concur in the court’s findings. The father has been in prison for most of

the child’s life. Even after the father is released, he will need to establish himself

in a stable lifestyle in order to be a reliable caretaker for the child. It is not

reasonably likely “the need for removal . . . will no longer exist at the end of the

additional six-month period.” See id.

B. Permissive Exception to Termination. Alternatively, the father

claims the juvenile court should have applied section 232.116(3)(a) to preclude

termination, as this section permits a juvenile court to preclude termination when

“[a] relative has legal custody of the child.” We reject this argument. Section

232.116(3) exceptions are permissive, not mandatory. In re A.R., 932 N.W.2d 588,

591 (Iowa Ct. App. 2019). In addition, the burden of establishing a section

232.116(3) exception rests with the parent contesting termination. See In re A.S.,
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906 N.W.2d 467, 476 (Iowa 2018). The father presented no compelling evidence

to apply this exception. We, like the juvenile court, find that given the child’s age

and need for permanency, this exception should not prevent termination.

We affirm the decision of the juvenile court.

AFFIRMED ON BOTH APPEALS.