In the Interest of C.J., C.J., N.J., and N.P.-R., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 23-0125
Filed May 10, 2023

IN THE INTEREST OF C.J., C.J., N.J., and N.P.-R.,
Minor Children,

C.P., Mother,
Appellant.
________________________________________________________________

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

Associate Judge.

A mother appeals the juvenile court order terminating her parental rights.

AFFIRMED.

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

Brenna Bird, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Ryan R. Gravett, Clive, guardian ad litem for minor children.

Alexandra Nelissen of Advocate Law PLLC, Clive, attorney for minor child

C.J.

Erin Romar of Youth Law Center, Des Moines, attorney for minor child C.J.

Heidi Miller of Gribble Boles Stewart & Witosky Law, Des Moines, attorney

for minor child N.J.

Considered by Bower, C.J., Badding, J., and Carr, S.J.*

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

(2023).
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CARR, Senior Judge.

A mother appeals the juvenile court order terminating her parental rights.

We find termination of the mother’s parental rights is supported by clear and

convincing evidence, termination is in the children’s best interests, none of the

exceptions to termination should be applied, and the court properly denied the

mother’s request to place the children in a guardianship. We affirm the juvenile

court’s decision terminating the mother’s parental rights.

I. Background Facts & Proceedings

C.P. is the mother of Ch.J., born in 2010; Ce.J., born in 2011; N.J., born in

2013; and N.P.-R., born in 2019.1 In an earlier appeal in this case we stated:

This family came to the attention of the Iowa Department of
[Health and] Human Services [(HHS)][2] in March 2021 upon
concerns regarding the mother’s substance abuse and supervision
of the children, as well as the cleanliness and safety of the home.
Later that month, the mother presented behavioral indicators of
substance abuse in the presence of a social worker, but the mother
explained her behavior was a result of Grave’s disease, a thyroid
condition, which the worker had no reason to disbelieve. The mother
had recently refused requests that she and the children be tested for
drugs. She was also recently found in her vehicle at a convenience
store, asleep at the wheel, with two of the children in the vehicle with
her. While law enforcement believed the mother to be impaired, no
charges were initiated, although the mother was arrested on
unrelated warrants. The mother agreed to a safety plan involving the
children staying with the maternal grandmother.
In mid-April, a social worker went to the family home, where
police were already present in relation to the mother’s dog biting a
pedestrian. The mother barricaded herself and the youngest child
inside of the home. The police officers opined the mother was under
the influence of an unknown substance. The officers called a
locksmith to facilitate entering the home to arrest the mother, but the
mother escaped through a side window with the child in tow. The
mother did not respond to communication attempts from the social

1 The father of the three oldest children is M.J. The father of the youngest child is
Z.R. The parental rights of the fathers were terminated. They did not appeal.
2 HHS was formerly known as the Iowa Department of Human Services.
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worker to safety plan the child into relative care. When the officers
entered the home, they found marijuana. Based on the foregoing
and the mother’s refusal to cooperate with [HHS], the State sought
and obtained an order for temporary removal of all children.

In re C.J., No. 21-1210, 2022 WL 109186, at *1 (Iowa Ct. App. Jan. 12, 2022).

After the children’s removal, the mother tested positive for marijuana, and

the children tested positive for methamphetamine. Id. at *2. The children were

adjudicated to be in need of assistance (CINA), pursuant to Iowa Code section

232.2(6)(c)(2), (n), and (o) (2021). Id. “[T]he mother claimed to be participating in

substance-abuse and mental-health treatment, but she refused to sign releases in

order to provide DHS with an ability to verify her participation.” Id. On the mother’s

appeal, we affirmed the CINA adjudication and removal of the children. Id. at *4.

Following a review hearing in November 2021, the court found the mother

had a recent sweat patch that was positive for methamphetamine. In addition, the

mother indicated that she continued to drink alcohol. On the plus side, the court

noted the mother was in substance-abuse and mental-health treatment. Soon

after, the mother abruptly left the treatment program.

In January 2022, the State and guardian ad litem (GAL) filed motions

seeking to suspend visitation for Ch.J. Ch.J. found a methamphetamine pipe in

the mother’s home and informed social workers. The child was very upset by the

incident and the mother caused further harm by stating the child was lying about

the pipe. The court determined Ch.J. could decline to participate in visitation.

Subsequently, the mother entered a residential substance-abuse treatment

program. The mother also left this program before completing it.
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The mother filed a motion for a reasonable efforts hearing. This hearing

was combined with a permanency hearing. The court found the mother “struggles

to keep her conversations with the children appropriate—and to regulate her own

emotions during visits.” In addition, the mother continued in a relationship with

Z.R., the father of the youngest child, who had problems with sobriety and

domestic violence. The court found HHS had engaged in reasonable efforts. The

State was directed to file a petition for termination of parental rights.

On July 8, 2022, the State filed a petition seeking termination of the parents’

rights. In August the mother tested positive for methamphetamine and cocaine.

On the first day of the termination hearing, on September 26, the mother was in a

substance-abuse treatment program. She stated she was previously untruthful

with the court about her use of methamphetamine and alcohol. The mother

testified the children could be placed with her at her treatment program. In the

alternative, she asked for the children to be placed in a guardianship.

The hearing continued on October 28. A social worker testified that the

mother became “very verbally distraught” during a Zoom visit with three of the

children because the fourth child was not present due to illness of the foster parent.

The children attempted to get the mother to calm down. The social worker testified

she believed the mother would disrupt permanency if a guardianship were put in

place for the children. There was evidence that the three oldest children wanted

to be returned to the mother’s care.

The record was kept open for written arguments and the receipt of some

exhibits. The mother was discharged from the substance-abuse treatment

program in mid-November. A sweat patch from soon after her discharge was
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positive for methamphetamine. The mother requested a hair test and this was also

positive for methamphetamine and amphetamines.

The juvenile court entered an order on January 10, 2023, terminating the

mother’s parental rights under section 232.116(1)(f) (2022) (as to Ch.J., Ce.J., and

N.J.) and (h) (as to N.R.). The court found termination of the mother’s parental

rights was in the children’s best interests, finding “[The mother], despite completion

of an inpatient treatment program, is still struggling with methamphetamine use.”

The court found that placing the children in a guardianship would not be in their

best interests. The court determined none of the exceptions to termination found

in section 232.116(3) should be applied. The mother appeals.

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 children. In re J.S., 846 N.W.2d 36, 40 (Iowa

2014).

III. Termination of Parental Rights

In general, we follow a three-step analysis in reviewing the termination of a

parent’s rights. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). We first consider

whether there is a statutory ground for termination of the parent’s rights under

section 232.116(1). Id. Second, we look to whether termination of the parent’s

rights is in the child’s best interests. Id. (citing Iowa Code § 232.116(2)). Third,
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we consider whether any of the exceptions to termination in section 232.116(3)

should be applied. Id.

A. The mother claims there is not sufficient evidence in the record to

support termination of her parental rights under section 232.116(1)(f)3 for the three

oldest children and section 232.116(1)(h)4 for the youngest child. 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).

The mother asserts that the State had not proven the requirements in

sections 232.116(1)(f)(4) and 232.116(1)(h)(4). She contends the children could

be returned to her care. Section 232.116(1)(f)(4) and 232.116(1)(h)(4) require a

3 Section 232.116(1)(f) provides that a parent’s rights may be terminated if the
following have occurred:
(1) The child is four years of age or older.
(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 twelve of the last eighteen months, or
for the last twelve consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents
as provided in section 232.102.
4 Section 232.116(1)(h) provides for termination of parental rights when the court

finds:
(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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showing by clear and convincing evidence that a child “could not be safely returned

to the custody of [the child’s] parents.” In re S.O., 967 N.W.2d 198, 206 (Iowa

2021). Pursuant to section 232.116(1)(f)(4) and 232.116(1)(h)(4), a court

considers whether a child can be returned to the parent at the time of the

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

The mother continued to struggle with substance abuse. Despite her entry

into several treatment programs, she tested positive for methamphetamine shortly

after completing the latest program. We credit the trial court’s careful consideration

of the tests and its conclusion the positive tests were evidence of use and not

environmental exposure. Additionally, the mother had problems regulating her

emotions. The court noted, “[The mother] was so upset [one child] was not

participating that she became emotionally dysregulated in front of the children.

The older children had to try to calm her down so they could still have a visit with

her.” Under these circumstances, the children cannot be returned to her custody

at the present time. So we conclude there is clear and convincing evidence in the

record to support termination of the mother’s parental rights.

B. The mother claims termination of her parental rights is not in the

children’s best interests. She points out that the older children advocated to be

returned to her care. In considering the best interests of children, we give “primary

consideration to the children’s safety, to the best placement for furthering the long-

term nurturing and growth of the children, and to the physical, mental, and

emotional needs of the children under section 232.116(2).” P.L., 778 N.W.2d at

40. “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
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someday a parent will learn to be a parent and be able to provide a stable home

for the child.” Id. at 41.

In addressing the children’s best interests, the juvenile court stated:

And even though termination will be hard on the children,
there are good reasons to believe it is in their long-term best
interests. The children are in concurrent plan homes and thriving.
They are involved in sports and other prosocial activities. The foster
parents and other caregivers make sure the children see each other.
All of the caregivers are open to the children maintaining contact with
the parents if they are healthy and sober. And the court proceedings
have been hard on the children.

We agree with the court’s conclusions. The children need stability and

permanency, which the mother is not able to provide. While the children are in

four different placements, the caregivers make sure the children remain in contact.

The children are doing well in these placements. We determine that termination

of the mother’s parental rights is in the children’s best interests.

C. The mother states the court could have decided not to terminate her

parental rights because the two oldest children were over the age of ten 5 and

objected to the termination and there was “clear and convincing evidence that the

termination would be detrimental to the child[ren] at the time due to the closeness

of the parent-child relationship.” See Iowa Code § 232.116(3)(b), (c).

The exceptions to termination found “in section 232.116(3) are permissive,

not mandatory.” In re W.T., 967 N.W.2d 315, 324 (Iowa 2021) (citation omitted).

“The court may exercise its discretion in deciding whether to apply the factors in

section 232.116(3) to save the parent-child relationship based on the unique

5At the time of the termination hearing, Ch.J. was twelve years old and Ce.J. was
eleven. Section 232.116(3)(b) would not apply to N.J. and N.P.-R., who were ages
nine and two, respectively.
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circumstances of each case and the best interests of the children.” In re A.R., 932

N.W.2d 588, 591 (Iowa Ct. App. 2019). “[O]nce the State has proven a ground for

termination, the parent resisting termination bears the burden to establish an

exception to termination under Iowa Code section 232.116(3) . . . .” In re A.S., 906

N.W.2d 467, 476 (Iowa 2018). The child’s best interests remain our first

consideration. Id. at 475.

While the oldest children were opposed to termination of the mother’s

parental rights, the court found it was in their best interests to terminate the

mother’s parental rights. The mother’s substance abuse and emotional

dysregulation creates more uncertainty for the children. The children needed to

know where they were going to be living in the long-term. They were thriving in

their current placements. The court did not abuse its discretion in deciding not to

forego termination of the mother’s parental rights based on the exception found in

section 232.116(3)(b).

The court also considered whether termination of the mother’s parental

rights would be detrimental to the children based on the closeness of their

relationship with the mother. See Iowa Code § 232.116(3)(c). The court found:

[T]he harm that would be caused by maintaining [the mother’s]
parental rights is substantially greater than the harm termination will
cause. She is not ready to resume custody of them. If the Court
declines to terminate, it will subject the children to custodial limbo for
the rest of their minority.

We determine the court properly decided not to forego termination of the mother’s

parental rights based on the exception found in section 232.116(3)(c), based on

the closeness of the parent-child relationship.
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The mother additionally contends the court should have decided not to

terminate her parental rights and should have placed the children in a

guardianship. The juvenile court stated:

The answer is that guardianship would just lead to more battles over
custody of these children in the next few years. [The mother] has
sought return of the children at nearly every hearing in the case—
even when she was actively using methamphetamine. And her
ability to work cooperatively with the guardians is questionable at
best. She is certainly better at coordinating with them as opposed to
HHS, but once the guardians were required to set limits with her (as
HHS has to now), it seems likely that would change. The Court’s
view is that termination and adoption would better allow the current
placements to safely manage contact with the parents. And, finally,
after a really turbulent child welfare case, the children need to know
where they are going to grow up. Given that termination and
adoption are the preferred methods of obtaining permanency for
children who cannot be returned to a parental home, the Court finds
termination is in the children’s best interest.

We concur in the juvenile court’s conclusions. “[A] guardianship is not a

legally preferable alternative to termination.” A.S., 906 N.W.2d at 477 (quoting In

re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App. 2017)). Guardianships can be modified

or terminated. See id. at 477–78 (discussing the practical realities of

guardianships); In re Z.G., No. 20-1083, 2020 WL 7383528, at *3 (Iowa Ct. App.

Dec. 16, 2020). A guardianship under the circumstances of this case would not

be in the children’s best interests.

We affirm the juvenile court’s decision terminating the mother’s parental

rights.

AFFIRMED.