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In re K.D.

Court of Appeals of Iowa

January 11, 2017

IN THE INTEREST OF K.D. and A.D., Minor children, J.D., Mother, Appellant.

         Appeal from the Iowa District Court for Montgomery County, Amy L. Zacharias, District Associate Judge.

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

          Sarah M. Hart of Reisinger Booth & Associates, P.C., L.L.O., Omaha, Nebraska, for appellant mother.

          Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant Attorney General, for appellee State.

          Karen L. Mailander of Mailander Law Office, Anita, guardian ad litem for minor children.

          Considered by Danilson, C.J., and Doyle and McDonald, JJ.

          DOYLE, JUDGE.

         A mother appeals the termination of her parental rights to her children, K.D. and A.D.[1] 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.

         We 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.

         Termination 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.

         The 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).[2] 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.

          The 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 ...

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