IN THE INTEREST OF M.B., Minor Child, B.B., Mother, Appellant.
from the Iowa District Court for Polk County, Rachael E.
Seymour, District Associate Judge.
mother appeals the termination of her parental rights.
L. Mason of JL Mason Law, PLLC, Des Moines, for appellant
J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
ConGarry D. Williams of Juvenile Public Defender's
Office, Des Moines, guardian ad litem for minor child.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
mother appeals the termination of her parental rights to her
child, born in 2012. The child first came to the attention of
the Iowa Department of Human Services (DHS) in July 2014 upon
reports the mother was using controlled substances while
caring for the child. DHS initially removed the child. The
mother was successful in treatment, the child was returned to
the mother's care, and the case was closed in February
2016. In February 2017, the child again came to
the attention of DHS upon reports of the mother and her
live-in paramour using controlled substances while caring for
the child. During its investigation, DHS discovered the
paramour sexually abused the child. The child was removed
from the mother's care and initially placed with the
maternal grandmother. However, the child was removed after the
grandmother allowed the mother unsupervised and unauthorized
contact with the child, which resulted in contact with the
mother's paramour. The child was subsequently placed and
remains in foster care.
the pendency of this case, DHS explored a maternal great-aunt
as a potential placement for the child, but it determined she
was not suitable for long-term placement due to concerns for
her ability to set boundaries with the maternal grandmother
and the maternal grandmother's own boundary issues with
the mother. Further, the maternal great-aunt failed to
immediately report a sexual incident between the child and a
relative of the foster family. The mother continued to
struggle with substance abuse and, throughout the pendency of
this case, including just prior to the termination hearing,
continued to associate with the paramour that abused the
child. In June 2018, the juvenile court terminated the
mother's parental rights pursuant to Iowa Code section
232.116(1)(f) and (l) (2018).
review termination proceedings de novo. In re A.M.,
843 N.W.2d 100, 110 (Iowa 2014). "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 D.W.,
791 N.W.2d 703, 706 (Iowa 2010)). On appeal, the mother does
not contest the statutory grounds upon which her rights were
terminated. Therefore we do not need to address this step in
the three-step analysis for termination of parental rights.
See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).
Instead, the mother maintains termination is not in the
child's best interests and statutory exceptions should be
applied to preclude termination. The mother suggests the best
interests of the child would be to establish a guardianship
with the maternal great-aunt as guardian due to the
child's bond with herself and the great-aunt along with
other members of the mother's family.
determine whether termination is in the child's best
interests, 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 § 232.116(2). "[A]
guardianship is not a legally preferable alternative to
termination." In re A.S., 906 N.W.2d 467, 477
(Iowa 2018) (quoting In re B.T., 894 N.W.2d 29, 32
(Iowa Ct. App. 2017)). Further, a guardianship, rather than
termination, would not promote stability in the child's
life. See In re R.S.R., No. 10-1858, 2011 WL 441680,
at *4 (Iowa Ct. App. Feb. 9, 2011) ("So long as a
parent's rights remain intact, the parent can challenge
the guardianship and seek return of the child to the
recognize that DHS considered and ultimately determined the
maternal great-aunt was not appropriate for long-term
placement for the child due to concerns about her inability
to provide protective boundaries and her failure to
immediately report sexual abuse. The record also reflects the
maternal great-aunt is in support of termination of the
mother's parental rights. Though the maternal great-aunt
may be willing to care for the child, "[a]n appropriate
determination to terminate a parent-child relationship is not
to be countermanded by the ability and willingness of a
family relative to take the child. The child's best
interests always remain the first consideration." In
re C.K., 558 N.W.2d 170, 174 (Iowa 1997). Even if a
guardianship with the maternal great-aunt was established,
the mother has failed to meet her burden to show that such a
guardianship should serve as an alternative to termination.
On our de novo review, we conclude a guardianship is not
appropriate under the facts of this case and termination is
in the best interests of the child.
mother also contends the statutory exceptions to termination
contained in Iowa Code section 232.116(3)(a) and (c) should
be applied. The "factors weighing against termination in
section 232.116(3) are permissive, not mandatory."
In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (quoting
A.M., 843 N.W.2d at 113). "We may use our
discretion, 'based on the unique circumstances of each
case and the best interests of the child, whether to apply
the factors in this section to save the parent-child
relationship.'" Id. (quoting A.M.,
843 N.W.2d at 113). "[O]nce the State has proven a
ground for termination, the parent resisting termination
bears the burden to establish an exception to
termination." A.S., 906 N.W.2d at 476.
juvenile court declined to apply any exception to
termination, finding the "mother has not maintained
consistent contact with the child and has not meaningfully
engaged in services and her continued poor decisions pose a
real danger to this child." Section 232.116(3)(a)
permits the court to forgo termination if "[a] relative
has legal custody of the child." We find the exception
under paragraph (3)(a) does not apply-at the time of the
termination hearing, the child was not in the legal custody
of a relative, but in the custody of DHS and placed in a
foster home. Section 232.116(3)(c) permits the court to forgo
termination if "[t]here is 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." A strong bond between parent and child is
"not an overriding consideration, but merely a factor to
consider." In re N.F., 579 N.W.2d 338, 341
(Iowa Ct. App. 1998). Further, "our consideration must
center on whether the child will be disadvantaged by
termination, and whether the disadvantage overcomes [the
mother's] inability to provide for [the child's]
developing needs." D.W., 791 N.W.2d at 709. On
our review, we find that though there is a bond between
mother and child, that bond does not ...