IN THE INTEREST OF M.D., K.T., G.A., E.A., and S.A., Minor Children, K.A., Mother, Appellant.
from the Iowa District Court for Ida County, Patrick H. Tott,
mother appeals the termination of her parental rights to five
B. Deck of Deck Law PLC, Sioux City, for appellant mother.
J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
D. Rynell of Juvenile Law Center, Sioux City, attorney and
guardian ad litem for minor children.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
POTTERFIELD, Presiding Judge.
mother appeals the termination of her parental rights to her
five children. The mother's parental rights to the
children were initially terminated in May 2018. On further
review, our supreme court reversed the termination, finding
the mother, who was incarcerated at the time of the initial
hearing and participated by phone, was improperly limited to
participating in the hearing for only the duration of her
testimony. In re M.D., 921 N.W.2d 229, 231 (Iowa
2018). The supreme court remanded the case, requiring the
juvenile court to hold the termination hearing anew and allow
the mother the opportunity to participate in the entire
hearing. Id. at 237.
second termination-of-parental-rights (TPR) hearing was held
in February 2019. Afterward, the juvenile court terminated
the mother's rights to all five children pursuant to Iowa
Code section 232.116(1)(e), (g), and (i) (2018) and applied
individual subsections to some children. On appeal, the
mother does not challenge the statutory grounds for
termination,  so we need not address this step. See
In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).
mother argues for the application of an exception to
termination within section 232.116(3) to save the
parent-child relationship. See Iowa Code §
232.116(3) (providing statutory exceptions the court may
apply to save the parent-child relationship even after the
grounds for termination have been proved). Specifically, the
mother focuses on section 232.116(3)(a), which allows the
court to forego termination when a relative has legal custody
of the children. The application of the factor is
"permissive," not mandatory, and "it is within
the sound discretion of the court, based upon the unique
circumstances before it and the best interests of the child,
whether to apply" it. P.L., 778 N.W.2d at 39
(citation omitted). Additionally, the mother, as the parent
resisting termination, bears the burden to establish that the
exception should be applied here. See In re A.S.,
906 N.W.2d 467, 476 (Iowa 2018).
mother argues there is no need to terminate her rights now,
as she is in prison and cannot be a risk to the children
while she is incarcerated. She points out that she may be
able to achieve lasting sobriety while in
prison and advocates for a "wait and
see" approach to termination-arguing termination could
be pursued after her release if it remains necessary. We
recognize the children are in the custody of their respective
fathers, who have the ability to keep the children safe, but
the mother's argument fails to take into account the harm
the children have suffered because of the long-term, ongoing
instability in their lives. See In re N.M., 491
N.W.2d 153, 155 (Iowa 1992) ("It is not in the
children's best interests to interpret the language of
the subsections to prevent termination of the noncustodial
parent's rights when the children are placed in the
separate home of the other parent."). The oldest child,
M.D., who was sixteen at the time of the second TPR hearing,
testified in support of the termination of the mother's
rights. M.D. was upset at the mother's minimization of
how many years the department of human services (DHS) and the
juvenile court have been involved in the children's
lives, testifying, "[The mother] said she feels like I
haven't been in over half my life. From what I remember,
like, you guys, DHS, has always been in my life." M.D.
expressed a desire to have the chance to live her life
without being involved with the juvenile court system. She
also expressed concern that her younger siblings were going
to get caught in the same cycle of having their parent come
in and out of their lives, which she recognized has the
ability to affect how they view other relationships as well.
In closing, M.D. asked the court to terminate the
mother's parental rights, stating:
I don't feel like [the mother is] capable to take care of
me or my sisters and I feel like she keeps getting chances
and she keeps ruining them. It's not going to be any
different, and I don't want to have to go through that. I
don't want my little sisters to have to go through that
mother advocates waiting until she gets out of
prison-sometime between two and a half and eight years from
now-to make a determination about her parental rights. But
leaving the door open for additional uncertainty in these
children's lives is not in their best interests. See
P.L., 778 N.W.2d at 38 ("A stable, loving homelife
is essential to a child's physical, emotional, and
spiritual well-being." (citation omitted)). We ...