In the Interest of A.S. and W.S., Minor Children, L.S., Mother

IN THE COURT OF APPEALS OF IOWA

No. 16-1984
Filed February 22, 2017

IN THE INTEREST OF A.S. and W.S.,
Minor Children,

L.S., Mother,
Appellant.
______________________________________________________________

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

Associate Judge.

A mother appeals from the order terminating her parental rights.

AFFIRMED.

Alexandra M. Nelissen of Taylor Law Offices, Des Moines, for appellant

mother.

Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd and Mary

A. Triick, Assistant Attorneys General, for appellee State.

Kimberly S. Ayotte of Youth Law Center, Des Moines, attorney and

guardian ad litem for minor children.

Considered by Mullins, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

A mother appeals the juvenile court order terminating her parental rights.

She claims the evidence was insufficient to support termination, the termination

is not in the best interests of the children, and the juvenile court should have

exercised its discretion and applied an exception to termination. We find the

evidence was sufficient to terminate the mother’s parental rights, termination is in

the best interests of the children, and no exception should be applied to the

termination. Therefore, we affirm.

I. Background Facts and Proceedings

W.S. was born in 2005 and A.S. was born in 2003. The children came to

the attention of the Iowa Department of Human Services (DHS) on May 23, 2014,

after there were allegations A.S. was sexually abused by the mother’s boyfriend.

DHS found the allegations to be credible and filed a founded child abuse

assessment. Therapy was recommended for A.S. but the therapy was canceled

by the mother for several weeks. A Child in Need of Assistance (CINA) petition

was filed and the juvenile court became involved in August. The CINA petition

alleged the mother was interfering with A.S.’s therapy and continuing her

relationship with the abuser. The children were found to be in need of

assistance. The juvenile court required services, including therapy for the

children, but allowed the children to remain with the mother.

Originally, the mother stated she believed A.S. had been abused but did

not believe her boyfriend was the abuser. The juvenile court informed the mother

the case “was on a fine line” and required her to “fully engage in all services and
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cooperate with DHS.” On January 30, 2015 the guardian ad litem filed a motion

to modify placement. The juvenile court granted the motion as the mother had

failed to consistently attend therapy, failed to ensure the children attended

therapy, continued to see her child’s abuser, and failed to provide any plausible

excuse for the missed appointments. The children were placed in foster care.

At a February 9 hearing it was discovered the mother had not attended

therapy since November. The mother’s therapist had elected to terminate

treatment based on her lack of attendance. DHS referred the mother to another

therapist specializing in sex abuse treatment; however, the mother chose to use

a therapist unknown to DHS. The court further found the mother was not

cooperating with the parenting plan requirements concerning “therapeutic

engagements that were vital for the mother to be minimally adequate.” The

mother also continued to communicate with A.S.’s abuser. The placement of the

children in foster care was continued and the mother was granted three visits a

week with each child.

At a hearing on June 9, 2015, it was found there was a “continuing need

for structured accountability between the mother and A.S., an inadequate

engagement in therapy, and a lack of adequate housing.” The guardian ad litem

interviewed and visited the children’s grandparents but recommended the

children not be placed with them. At a hearing on January 14, 2016, the juvenile

court found progress had been made and granted the mother an additional six

months. On June 9, 2016 the court found the children had been removed for

eighteen months and one six-month extension had been granted. The children
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expressed a desire to return to the mother but significant issues still existed

which required continued out-of-home placement.

A termination hearing was held October 20. The mother was found to still

be inconsistent in attending therapy sessions and combined therapy sessions

with the children. She often did not attend her own sessions, did not provide any

explanation for the missed visits to her therapist, and lied about conflicts in order

to avoid attending group sessions with W.S. The mother was also alleged to be

in a new relationship with a registered sex offender. The mother’s current

housing was a two-bedroom trailer, which she shared with a roommate. At the

time of the hearing, she was waiting for a three-bedroom trailer to become

available as her current housing could not accommodate the children.

Additionally, the mother missed one-third of her visits in July and August 2016

and missed two-thirds of her visits in September. At the time of the termination

hearing, the mother had recently lost her job and was unemployed. The juvenile

court entered an order terminating the mother’s parental rights on November 4,

2016. The mother now appeals.

II. Standard of Review

The scope of review is de novo in termination cases. In re D.W., 791

N.W.2d 703, 706 (Iowa 2010). Clear and convincing evidence is needed to

establish the grounds for termination. In re J.E., 723 N.W.2d 793, 798 (Iowa

2006). Where there is clear and convincing evidence, there is no serious or

substantial doubt about the correctness of the conclusion drawn from the

evidence. In re D.D., 653 N.W.2d 359, 361 (Iowa 2002). We give weight to the
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juvenile court’s findings of fact, but are not bound by them. In re C.B., 611

N.W.2d 489, 492 (Iowa 2000). The highest concern in termination proceedings is

the best interests of the children. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990).

III. Sufficiency of the Evidence

The mother claims there was insufficient evidence to terminate her

parental rights. The juvenile court terminated her parental rights pursuant to

Iowa Code section 232.116(1)(d) and (f) (2016). “On appeal, we may affirm the

juvenile court’s termination order on any ground that we find supported by clear

and convincing evidence.” D.W., 791 N.W.2d at 707. In order to terminate under

section 232.116(1)(f), (1) the child must be four years old or older, (2) the child

must have been adjudicated in need of assistance, (3) the child must have been

removed from the physical custody of the parent for twelve of the last eighteen

months, and (4) the child cannot be returned at the time of termination.

The mother challenges only the fourth element. At the time of the

termination hearing, the mother was living in a two-bedroom trailer with a

roommate who was on probation. The mother had also recently been terminated

from her employment. While the mother had been making limited progress in

therapy, this progress had only occurred in the months leading up to the hearing.

Last minute efforts “are simply too late.” See C.B., 611 N.W.2d at 495. The

juvenile court also found the mother was in a relationship with a registered sex

offender. Finally, the mother continued to display inappropriate behaviors with

the children during visits and telephone calls. We find the children could not be

safely returned to the mother at the time of the termination hearing.
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IV. Best Interests of the Children

The mother claims the termination is not in the best interests of the

children. After finding a ground for termination exists we are to “consider the

factors under section 232.116(2). Section 232.116(2) requires us to 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.” In re P.L., 778 N.W.2d 33, 40 (Iowa 2010)

(internal quotation marks and citations omitted).

The mother claims the children should have been placed in a guardianship

with their grandparents. She claims the grandparents, living in a retirement

community in Florida, were appropriate guardians of the children and the

placement would not have necessitated a termination of her parental rights. The

guardian ad litem visited and interviewed the grandparents in Florida. The

guardian ad litem was informed the children would not be allowed to live at the

grandparents’ residence and, therefore, the guardian ad litem did not recommend

placement. We too find placement with the grandparents is not feasible and

agree with the guardian ad litem and juvenile court.

Additionally, the district court noted “this case has been open since August

5, 2014. The mother has been granted ample time to engage in the services

provided. The mother’s lack of consistent engagement can be used as an

indication of what the future holds for these children if returned to the mother’s

care.” We also agree with the juvenile court’s analysis that “these children are

still suffering emotionally when the mother does not tend to their needs above
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her own. . . . They require consistency, which the mother has not displayed

during the two years this case has been open. . . . These children have waited

long enough and deserve to not wait any longer.” The best indication of a

parent’s future performance is past performance. In re S.N., 500 N.W.2d 32, 34

(Iowa 1993). The mother’s past performance indicates she will be unable to

resume care. We find it is in the best interests of the children for parental rights

to be terminated.

V. Exceptions

We may decide not to terminate parental rights if any exception set out in

Iowa Code section 232.116(3) is shown. The mother claims her parental rights

should be not terminated because both the children object to the termination.

See Iowa Code § 232.116(3)(b). She also claims termination should be

precluded by the strong bond she has with the children. See Iowa Code

§ 232.116(3)(c). The decision to apply these exceptions to termination is not

mandatory but rather discretionary. See In re A.M., 843 N.W.2d 100, 113 (Iowa

2014).

The juvenile court found both the children had objected to the termination

“at times” and “the children have a bond with their mother and arguably

termination of the mother’s rights could be detrimental to the children.” It is

indeed understandable these children have expressed some desire to return to

their mother’s care and it is clear there is a bond between the children and their

mother. However, we agree with the juvenile court’s assessment that the mother

has communicated with the children only sporadically, displayed inappropriate
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behaviors during visits with the children, the children “are both acting out and

regressing after visits with their mother,” and that the mother still does not

understand the importance of therapy for both the children and herself. Our

overriding concern must be the long-term best interests of the children and we

elect not to apply an exception to termination.

AFFIRMED.