In the Intrest of N.S., Minor Child, L.S., Mother

IN THE COURT OF APPEALS OF IOWA

No. 14-1024
Filed August 27, 2014

IN THE INTREST OF N.S.,
Minor Child,

L.S., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Buena Vista County, Mary L.

Timko, Associate Juvenile Judge.

Mother appeals from an order terminating her parental rights.

AFFIRMED.

Lisa Mazurek, Cherokee, for appellant.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant

Attorney General, Dave Patton, County Attorney, and Elizabeth D. LaPole,

Assistant County Attorney, for appellee.

David A. Dawson, Sioux City, attorney and guardian ad litem for minor

child.

Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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MCDONALD, J.

On June 6, 2014, the juvenile court entered an order terminating the

parent-child relationship between Johnathan and Lisa and their child N.S. Only

Lisa appeals the termination order. On appeal, Lisa contends there is not

sufficient evidence supporting the termination of her parental rights. Lisa also

contends the court should not have terminated her parental rights because two

different family members were willing to provide for the child “by adoption or

guardianship.”

We review de novo proceedings terminating parental rights. In re H.S.,

805 N.W.2d 737, 745 (Iowa 2011). We examine both the facts and law, and we

adjudicate anew those issues properly preserved and presented. In re L.G., 532

N.W.2d 478, 480 (Iowa Ct. App. 1995). We give weight to the findings of the

juvenile court, especially concerning the credibility of witnesses, but we are not

bound by them. See id. at 480-81. Our obligation to review termination

proceedings de novo means our review is not a rubber stamp of what has come

before. We will thus uphold an order terminating parental rights only if there is

clear and convincing evidence of grounds for termination. See In re C.B., 611

N.W.2d 489, 492 (Iowa 2000). Evidence is “clear and convincing” when there

are no “serious or substantial doubts as to the correctness [of] conclusions of law

drawn from the evidence.” Id.

Termination of parental rights under Iowa Code chapter 232 (2013) follows

a three-step analysis. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). First, the

court must determine if a ground for termination under section 232.116(1) has
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been established. Id. Second, if a ground for termination is established, the

court must apply the framework set out in section 232.116(2) to decide if

proceeding with termination is in the best interests of the child. 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 the termination of parental rights. Id.

The juvenile court terminated Lisa's parental rights pursuant to section

232.116(1)(h). As relevant here, to establish this ground for termination, the

State was required to prove by clear and convincing evidence the child “cannot

be returned to the custody of the child's parents as provided in section 232.102 at

the present time.” Iowa Code § 232.116(1)(h)(4); see In re Chad, 318 N.W.2d

213, 217 (Iowa 1982). A child cannot be returned to the custody of the child's

parents under section 232.102 if by doing so the child would remain a child in

need of assistance or would be exposed to any harm amounting to a new child in

need of assistance adjudication. See In re R.R.K., 544 N.W.2d 274, 277 (Iowa

Ct. App. 1995), overruled on other grounds by P.L., 778 N.W.2d at 39; see also

In re M.M., 483 N.W.2d 812, 814 (Iowa 1992) (“The threat of probable harm will

justify termination, and the perceived harm need not be the one that supported

the child's initial removal from the home.”). We conclude the State proved this

ground by clear and convincing evidence and termination of Lisa’s parental rights

is in the best interests of N.S.

The family first came to the attention of the Iowa Department of Human

Services (hereinafter IDHS) several months after N.S.’s birth in 2012. At that
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time, Lisa was no longer in a relationship with Johnathan, N.S.’s father. IDHS

was notified Lisa was engaged to and living with Tony, a career criminal and

registered sex offender recently released from prison. Lisa was then arrested

and charged with child endangerment. Investigation revealed Lisa was aware of

Tony’s status as a registered sex offender but thought his sex offender status

would not matter once they were married. Upon being released from jail and

being confronted with the choice of living with N.S. or with Tony, Lisa agreed to

have N.S. placed with Lisa’s mother, Judy, so Lisa could continue to live with

Tony.

Initially, while N.S. was out of Lisa’s custody, Lisa did little to work toward

reunification with N.S. and continued to place her desire to date Tony over her

relationship with N.S. Lisa did little to care for N.S. and little to create any bond

with N.S. Lisa had the right to supervised visitation with N.S., but she did not

often exercise that right. Judy explained when Lisa did exercise visitation, the

visitation typically lasted only fifteen minutes. The visits were short because

Tony texted and called Lisa during the visit and Lisa would leave in response.

Judy’s care of N.S. abruptly ended in July 2013 when IDHS learned Judy

left the area with a man she had known for only a week and left N.S. with Judy’s

sister, Michelle. IDHS was concerned that Judy demonstrated the same poor

decision-making skills as Lisa with respect to choosing male partners. IDHS

decided placement of N.S. with Judy was no longer viable. Although IDHS

preferred relative placement, all options were unsuccessful and N.S. was placed

in foster care. It was at this time N.S. was adjudicated in need of assistance.
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Despite the receipt of numerous services, Lisa was unable to progress to

a point where she could resume care of N.S. without exposing N.S. to the risk of

adjudicatory harm. Lisa has been diagnosed with Intellectual Disability (formerly

Mild Mental Retardation) and Adjustment Disorder. While lower mental

functioning alone is not sufficient grounds for termination, it is a relevant

consideration where it affects the child’s well being. See In re A.M., 843 N.W.2d

100, 111 (Iowa 2014). Lisa is unable to control her impulses with respect to

choosing partners, and Lisa chooses partners that create a risk of harm to N.S.

IDHS learned Lisa began a romantic relationship with another man after her

relationship with Tony ended. This second man also posed a risk of harm to N.S.

When asked about the relationship, Lisa misrepresented to IDHS and the

juvenile court the second relationship had ended.

Lisa has difficulty controlling her emotions and frequently is in conflict with

others. She has been diagnosed with Generalized Anxiety Disorder, Major

Depressive Disorder, ADHD, and Histrionic personality traits. During the time

N.S. was removed from her care, Lisa had conflicts with her neighbors. She had

conflicts with her friends and family. The social worker assigned to the case

testified that these recurring conflicts created a risk of harm to N.S. because N.S.

was present during some of the conflicts. In addition, the general chaotic

environment was not good for N.S.’s development.

Lisa is also unable to manage her financial affairs or control her impulses

with respect to spending money. Lisa’s Social Security Disability Insurance

benefits are managed by a designated payee. The money Lisa earns from
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employment is compulsively spent or gambled away. IDHS provided services to

Lisa to assist her in managing her money, but those services were not

successful. The social worker assigned to the case testified Lisa is barely able to

provide for herself let alone N.S. While termination cannot be based on

economic factors alone, we find those factors are relevant to the extent they

reflect on Lisa’s decision making process, or lack thereof. See id. IDHS

concluded there are no additional services that could be offered to address Lisa’s

needs to allow reunification without exposing N.S. to adjudicatory harm.

The goal of assistance proceedings “is to improve parenting skills and

maintain the parent-child relationship.” In re H.L.B.R., 567 N.W.2d 675, 677

(Iowa Ct. App. 1997). That being said, as a general rule, courts do not gamble

with a child's future by asking the child to wait indefinitely for stable biological

parenting. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). Lisa has had

ample opportunity to avail herself of IDHS services and work toward reunification

with N.S. N.S. need not wait for Lisa to become a responsible parent. See In re

L.L., 459 N.W.2d 489, 495 (Iowa 1990) (“Children simply cannot wait for

responsible parenting. Parenting . . . must be constant, responsible, and

reliable.”). Given the foregoing, we conclude the termination of Lisa’s parental

rights is in the best interests of the child.

We also conclude there are no statutory grounds why termination should

not proceed. Lisa argues that N.S. can be placed with one of two relatives under

a guardianship. This argument was not presented to the district court, and it is

not preserved for our review. See In re A.U., No. 13-0599, 2013 WL 2646971, at
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*3 (Iowa Ct. App. Jun. 12, 2013) (“The mother acknowledges that the juvenile

court did not rule upon issues of guardianship and additional time. As the mother

did not subsequently request such a ruling, she has not preserved error for

appellate review.”). To the extent Lisa is arguing the permissive exception set

forth in Iowa Code section 232.116(3)(a) applies, her argument fails. That

section applies only where a “relative has legal custody of the child.” Iowa Code

§ 232.116(3)(a). Here, IDHS has legal custody of the child.

AFFIRMED.