January 11, 2017
IN THE INTEREST OF K.D. and A.D., Minor children, J.D., Mother, Appellant.
from the Iowa District Court for Montgomery County, Amy L.
Zacharias, District Associate Judge.
mother appeals the termination of her parental rights.
M. Hart of Reisinger Booth & Associates, P.C., L.L.O.,
Omaha, Nebraska, for appellant mother.
J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
L. Mailander of Mailander Law Office, Anita, guardian ad
litem for minor children.
Considered by Danilson, C.J., and Doyle and McDonald, JJ.
mother appeals the termination of her parental rights to her
children, K.D. and A.D. She claims the State failed to prove
the statutory grounds for termination, that termination is
not in the children's best interests, and that Iowa Code
section 232.116(3) (2015) factors apply to overcome
termination. We affirm the juvenile court's order.
review termination-of-parental-rights proceedings de novo.
See In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). We
examine both the facts and law, and we adjudicate anew those
issues properly preserved and presented. See In re
L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We will
uphold an order terminating parental rights only if there is
clear and convincing evidence establishing the statutory
grounds for termination of the parent's rights. See
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). Evidence is
"clear and convincing" when there is no serious or
substantial doubt as to the correctness of the conclusions of
law drawn from the evidence. Id.
of parental rights under Iowa Code chapter 232 follows a
three-step analysis. See In re P.L., 778 N.W.2d 33,
40-41 (Iowa 2010). First, the court must determine if a
ground authorizing the termination of parental rights under
section 232.116(1) has been established. See id. at
40. Second, if a ground for termination is established, the
court must apply the framework set forth in section
232.116(2) to decide if proceeding with termination is in the
best interests of the child. See id. Third, if the
statutory best-interests framework supports termination of
parental rights, the court must consider if any statutory
exceptions set forth in section 232.116(3) should serve to
preclude termination. See id. at 41. The exceptions
set forth in subsection three are permissive and not
mandatory. See A.M., 843 N.W.2d at 113.
district court terminated the mother's rights pursuant to
Iowa Code section 232.116(1)(f) (as to the older child) and
(h) (as to the younger child). As relevant here, termination
pursuant to paragraphs (f) and (h) requires the State to
prove the children could not be returned at the present time
to the mother's care as provided in section 232.102.
See Iowa Code § 232.116(1)(f)(4), (h)(4) (both
requiring proof the child cannot be returned at the present
time to the parent's custody "as provided in section
232.102"). To satisfy its burden of proof, the State
must establish "[t]he child cannot be protected from
some harm which would justify the adjudication of the child
as a child in need of assistance." See id.
§ 232.102(5)(2); see also In re A.M.S., 419
N.W.2d 723, 725 (Iowa 1988). The threat of probable harm will
justify termination of parental rights, and the perceived
harm need not be the one that supported the child's
initial removal from the home. See In re M.M., 483
N.W.2d 812, 814 (Iowa 1992). "At the present time"
refers to the time of the termination hearing. A.M.,
843 N.W.2d at 111.
children were removed from the parents' home in July
2015. The termination hearing was held in October 2016. In
its findings of fact, the juvenile court noted that an Iowa
Department of Human Services (DHS) worker testified,
the children cannot be returned to their mother's care
now or at any time in the foreseeable future because she did
not follow through with substance-abuse treatment and has
very little progress towards maintaining her sobriety. [The
worker] testified she placed [the mother] on a call-in system
for drug testing but she did not comply with those protocols.
[The worker] also testified it would be in the children's
best interests for [the mother]'s parental rights to be
mother also testified at the hearing, and the court found,
She was given the opportunity to be questioned by her
attorney and tell the court why her parental rights should
not be terminated. [The mother] also submitted a letter to
the court, which was filed as Exhibit 8. In that letter, [the
mother] acknowledged that she was an alcoholic and an addict,
and in the last few months she is finally accepting who she
is and believes that she can recover from her addictions. She
admitted in this letter that it would not be in her
children's best interests to return the children to her
care at this time. [The mother] also admitted during her
testimony that she has been doing well in her current
treatment plan for both mental health and substance abuse.
Based on the exhibits filed in this matter, [the mother]
appears to be making progress. However, she admitted that it
took her almost a year to decide she wanted to get better and
not lose her children. When looking at the timeframes
involved, she only made this decision after the permanency
goal in this changed in July 2016. By that time, the Court
had already granted her additional time for reunification but
she did not take advantage of it. As of today, the children
have been removed from their parents for approximately
fifteen months and been in two different placements. They
deserve permanency and should not have to wait any longer for
[the mother] to decide to be the mother she always should
juvenile court found the mother "continues to struggle
with sobriety and the ability to care for her children.
Throughout the life of this case [the mother] has been
inconsistent with addressing her chemical-dependency issues
and has self-reported relapses." The mother's
struggles with substance-abuse treatment were detailed by the
juvenile court in its order, and we see no need to repeat
them here. The court also observed,
Aside from the substance-abuse issues, [the mother] has not
followed through with her mental-health treatment either. She
missed the most recently scheduled appointment with her
psychiatrist in August 2016. By [the mother]'s own
admission, it is not in the children's best interests to
return to her care.
termination hearing, the mother admitted that neither child
could be safely returned to her at that time. Given the
circumstances, that is sufficient evidence authorizing the
termination of her parental rights. See In re K.P.,
No. 15-2078, 2016 WL 1703081, at *4 (Iowa Ct. App. Apr. 27,
2016) (citing In re D.R., No. 15-1968, 2016 WL
1129385, at *4 (Iowa Ct. App. Mar. 23, 2016), In re
M.R., No. 14-1642, 2014 WL 7343520, at *2 (Iowa Ct. App.
Dec. 24, 2014), In re Z.B., No. 13-1406, 2014 WL
667596, at *2 (Iowa Ct. App. Feb. 19, 2014), In re.
G.S., No. 12-2258, 2013 WL 751298, at *2 (Iowa Ct. App.
Feb. 27, 2013), In re. K.B., No. 12-1299, 2012 WL
4903052, at *4 (Iowa Ct. App. Oct. 17, 2012), and In re
H.L., No. 07-1126, 2007 WL 2710968, at *2 (Iowa Ct. App.
Sept. 19, 2007), where termination was affirmed because a
parent admitted the child or children could not be returned
to the parent's care at the time of the termination
hearing). In any event, we agree with the juvenile court that
the State proved by clear and convincing evidence the
children could not be returned to her care at the time of the
termination-of-parental-rights hearing and termination of her
parental rights was proper under section 232.116(1)(f) and
hearing the mother believed the children could be returned to
her "sooner but not today." On appeal she claims
her testimony "indicated that she would be able to have
the children back in her home within months and the risk of
physical abuse is no longer at issue." We take this to
be a request for additional time.
children were removed from the parents' home in July 2015
and placed with their maternal grandparents. The children
were subsequently adjudicated children in need of assistance.
The children were placed with their paternal great aunt and
uncle in April 2016 and continue to reside at this placement.
Since the removal of her children, the mother has struggled
with maintaining sobriety. The mother was given additional
time to achieve reunification with the children but did not
take advantage of it. After a relapse in May 2016, the State
began termination proceedings. Although the mother has made
some progress since then, the mother's late progress in
the case did not begin until after the State filed
its petition seeking termination of parental rights.
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." P.L., 778 N.W.2d at
41. Children require permanency. See In re J.E., 723
N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially)
(noting the "defining elements in a child's best
interest" are the child's safety and "need for
a permanent home"). Delaying permanency any further is
not in the children's best interests. As we have stated
numerous times, children are not equipped with pause buttons.
"The crucial days of childhood cannot be suspended while
parents experiment with ways to face up to their own
problems." In re A.C., 415 N.W.2d 609, 613
(Iowa 1987); see also In re D.J.R., 454 N.W.2d 838,
845 (Iowa 1990) ("We have long recognized that the best
interests of a child are often not served by requiring the
child to stay in 'parentless limbo.'" (citation
omitted)); In re Kester, 228 N.W.2d 107, 110-11
(Iowa 1975) (refusing to "gamble with the children's
future" or force the children to "await their
[parent]'s maturity" where the parent's history
shows "good intentions, but feeble resistance to
temptation and wrongdoing"). While the law requires a
"full measure of patience with troubled parents who
attempt to remedy a lack of parenting skills, " this
patience has been built into the statutory scheme of chapter
232. In re C.B., 611 N.W.2d 489, 494 (Iowa
2000). Our supreme court has explained that "the
legislature, in cases meeting the conditions of [the Iowa
Code], has made a categorical determination that the needs of
a child are promoted by termination of parental rights."
In re M.W., 458 N.W.2d 847, 850 (Iowa 1990)
(discussing then Iowa Code section 232.116(1)(e)).
Consequently, "[t]ime is a critical element, " and
parents simply "cannot wait until the eve of
termination, after the statutory time periods for
reunification have expired, to begin to express an interest
in parenting." C.B., 611 N.W.2d at
495. At some point, as is the case here, the rights and needs
of the children must rise above the rights and needs of the
parent. See In re C.S., 776 N.W.2d 297, 300
(Iowa Ct. App. 2009). The public policy of the state having
been legislatively set, we are obligated to heed the
statutory time periods for reunification. The mother has been
given more than ample time to address her adult issues and
demonstrate that she could provide a safe, stable, drug-free
home for the children, and she was not able to do so. Any
additional time in limbo would not be in the children's
appeal, the mother argues termination is not in the
children's best interests, citing her bond with the
children. See Iowa Code § 232.116(2) (listing
the child's emotional condition and needs as factors to
consider in determining whether to terminate parental
rights). At trial she admitted it was not in the
children's best interests to return them to her care at
that time. The children's need for permanency, security,
safety, and physical and emotional health dictate that it is
in the children's best interests to have the mother's
parental rights terminated rather than wait any longer for
the mother to be ready to resume full time responsibility for
the children's care. Although delaying the termination
decision may serve the mother's best interests, it is not
in the best interests of the children.
mother also seeks to avoid termination of her parental rights
under two of the exceptions set forth in section 232.116(3).
These exceptions are permissive, not mandatory. See 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. We may apply the exceptions in our discretion based on
the circumstances of each case and the child's best
interests. See id.
the mother maintains it was error to terminate her parental
rights because the children were in the custody of their
paternal aunt and uncle, citing Iowa Code section
232.116(3)(a). This is incorrect. Custody was placed with the
DHS, not a relative. See Iowa Code §
232.116(3)(a); see also A.M., 843 N.W.2d at 112, 113
(noting that although A.M. was in the care of her
grandparents, she was not in their legal custody making
section 232.116(3)(a) inapplicable). Consequently, section
232.116(3)(a) is inapplicable in the present case. See
citing Iowa Code section 232.116(3)(c), the mother maintains
it was error to terminate her parental rights because
"there is a significant and strong bond between [the
mother] and her children" and that children still refer
to her as "mom" or "mommy." Under section
232.116(3)(c), the court need not terminate parental rights
if the court finds "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."
For the reasons stated above, we concluded termination is in
the children's best interests. For the same reasons, we
conclude that terminating the mother's parental rights
would be less detrimental to the children than the harm that
would be caused by continuing the parent-child relationship.
We decline to apply any exception to termination provided in
children were adjudicated in need of assistance in September
2015, and the statutory time frames for reunification have
passed. The mother did not take advantage of the additional
time she was granted to work toward reunification. She
admitted she took a year before she got serious about
substance-abuse treatment. These children are in need of
permanency, and they should not have to wait any longer in
parentless limbo. We conclude a grant of additional time for
the mother to work toward reunification is not justified
under the circumstances. We agree with the juvenile court
that the State proved by clear and convincing evidence the
children could not be returned to her care at the time of the
termination-of-parental-rights hearing, termination of her
parental rights was proper under section 232.116(1)(f) and
(h), and termination is in the best interests of the
children. We decline to apply any exception under section
232.116(3). Accordingly, we affirm.
 The father's parental rights to
the children were also terminated. He is not a party to this
 At the time of the termination of
parental rights hearing, K.D. was three years old and A.D.
was four years old. The court also terminated the
mother's parental rights pursuant to section 232.116(d).
When the juvenile court terminates parental rights on more
than one ground, we may affirm the order on any ground we
find supported by clear and convincing evidence in the
record. See In re D.W., 791 N.W.2d 703, 707 (Iowa
2010). We choose to address the grounds for termination under
(f) and (h).