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In re E.M.

Court of Appeals of Iowa

May 17, 2017

IN THE INTEREST OF E.M., Minor Child, I.M., Mother, Appellant.

         Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.

         A mother appeals from the juvenile court's order terminating her parental rights. AFFIRMED.

          Jane M. White of Jane White Law Office, Des Moines, for appellant mother.

          Thomas M. Miller, Attorney General, and Charles K. Phillips, Assistant Attorney General, for appellee State.

          Michael R. Sorci of the Youth Law Center, Des Moines, attorney and guardian ad litem for minor child.

          Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

          MULLINS, Judge.

         A mother appeals from the juvenile court's order terminating her parental rights to her child. She argues the State failed to prove the statutory grounds for termination by clear and convincing evidence and termination is not in the child's best interests.

         E.M. is the mother's fifth child. He was born in May 2016. The mother has a history of involvement with the Iowa Department of Humans Services (DHS) and has been receiving services through them since as early as 2008 and 2009. She has previously had her parental rights terminated with regard to two of her older children and the other two children have had guardianships established for them with their maternal grandmother.

         The mother has a lengthy history of significant criminal activity, substance-abuse problems, and mental-health issues. Due to her history and her use of marijuana and cocaine during her pregnancy with this child, the juvenile court entered a temporary removal order after the child was born. Thereafter, the mother hid the child from DHS for almost two weeks, attempting to avoid his removal from her care and custody. Eventually, the child was found and placed in family foster care. In June 2016, the court adjudicated E.M. a child in need of assistance (CINA).

         In February 2017, the juvenile court terminated the mother's parental rights pursuant to Iowa Code section 232.116(1)(h) (2016).[1] We review termination-of-parental-rights proceedings de novo. In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). "We are not bound by the juvenile court's findings of fact, but we do give them weight, especially in assessing the credibility of witnesses." Id. (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa 2014)). Our primary consideration is the best interests of the child. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).

         Iowa Code section 232.116(1)(h) provides the court may terminate parental rights if the court finds the State has proved by clear and convincing evidence the child (1) is three years old or younger; (2) has been adjudicated CINA; (3) has been removed from the physical custody of the parent for at least six of the last twelve months, or the last six consecutive months and any trial period at home has been less than thirty days; and (4) cannot be returned to the parent's custody at the time of the termination hearing.

         At the time of the combined permanency review and termination hearing, E.M. was nine months old. He was removed from his mother's physical custody in May 2016 when he was only a few weeks old and has not had any trial periods at home. The juvenile court adjudicated the child CINA in June 2016. The mother was incarcerated pending criminal charges at the time of the combined permanency review and termination hearing and was clearly unable to assume custody of her child at that time. For these reasons, we affirm the juvenile court's order finding the State proved the grounds for termination under section 232.116(1)(h) by clear and convincing evidence.

         Next, we consider whether termination is in this child's best interests under section 232.116(2). See In re M.W., 876 N.W.2d at 219-20. 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." Iowa Code ยง 232.116(2). "Insight for the determination of a child's long-range best interests can be gleaned from 'evidence of the parent's past performance for that performance may be indicative of the quality of the future ...


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