In the Interest of H.S.H., Minor Child, T.L.M., Mother

IN THE COURT OF APPEALS OF IOWA

No. 15-1339
Filed November 25, 2015

IN THE INTEREST OF H.S.H.,
Minor Child,

T.L.M., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Union County, Monty W. Franklin,

District Associate Judge.

A mother appeals the juvenile court’s termination of her parental rights to

the child, H.S.H. AFFIRMED.

Michael A. Beal, Urbandale, for appellant mother.

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

Attorney General, for appellee State.

Todd G. Nielsen of Kenyon & Nielsen, P.C., Creston, attorney and

guardian ad litem for minor child.

Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.

A mother appeals the juvenile court’s termination of her parental rights to

her child, H.S.H. She argues both that the State failed to prove the grounds for

termination by clear and convincing evidence, and that a statutory factor exists to

prevent termination. We conclude that clear and convincing evidence supported

termination, termination is in the best interest of the child, and that the statutory

factor does not preclude the termination. We therefore affirm.

I. Background Facts and Proceedings

H.S.H. was born on July 1, 2013. She first came to the attention of the

Iowa Department of Human Services (DHS) in the spring of 2014, when reports

of child abuse were lodged against both her mother and her mother’s boyfriend,

alleging they had smoked methamphetamine (meth) with the child present. Child

abuse assessments were completed by May 2014, at which point DHS

determined two allegations of denial of critical care against the mother were

founded—one for failure to provide adequate shelter, and the other for failure to

provide proper supervision.

At the time the abuse was reported, H.S.H. and her mother were staying

in the basement of the mother’s boyfriend’s grandmother’s house. The DHS

investigation revealed a litany of problems with the basement’s suitability as a

living space for an infant: it was accessible only via trapdoor and a set of very

steep stairs; it was small and unclean; it doubled as a utility and storage area,

with H.S.H.’s filthy bassinet located next to the water heater; it was crammed full

of boxes, furniture, bags of clothing, a bed, and other items, leaving no open area

for H.S.H. to be on the floor; it had no windows to allow light in or to allow for
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escape in case of fire; and it had no smoke detectors, despite the fact that the

mother and boyfriend smoked cigarettes inside. Additionally, drug

paraphernalia—tubes used to snort drugs—were found in the basement. The

tubes were accessible to H.S.H., and tested positive for meth residue, which

could have caused her serious harm if ingested. The mother denied having used

meth and denied that the tubes were hers, but also refused to submit to drug

testing.

H.S.H. suffered developmental delays as a result of the unsafe conditions.

For example, the floor was littered with debris that constituted a choking hazard;

HSH was kept in her crib and thus had not learned to crawl. Follow-up regarding

H.S.H.’s medical records revealed that she had not been to a doctor for a routine

well-child check since she was two weeks old. To address these issues as well

as the mother’s own deficiencies, a number of services were offered to the family

by DHS. However, the mother failed to participate actively in the services

provided and generally showed a lack of motivation to make any meaningful

changes. She did move out of the basement residence and into her own

parent’s home (because her boyfriend was now in prison), and also finally

participated in a substance abuse evaluation in September 2014 during which

she admitted to using meth.

Otherwise, the mother did not make significant progress, and so on

September 18, 2014, H.S.H. was adjudicated to be a child in need of assistance

(CINA) as defined by Iowa Code sections 232.2(6)(b), (c)(2), (g), and (n). (2013).

H.S.H. was removed from the mother’s custody and placed in the temporary

legal custody of the child’s paternal grandparents. She could not be placed with
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her biological father because he was incarcerated. During subsequent months,

as CINA review hearings were ongoing and DHS was overseeing the mother’s

activity, the mother’s participation in the offered services was inconsistent. The

mother’s substance abuse problems persisted, even though she had become

pregnant again. On January 9, 2015, the mother gave birth via a scheduled

Caesarean section to a child that tested positive at birth for both meth and

amphetamines. During this time period, the mother’s visitation with H.S.H. was

both limited and supervised due to her lack of progress with services. She

attended most of those supervised visits, but often seemed distant and

disinterested in H.S.H., only interacting with the child when prompted to do so.

The State filed a petition for termination of parental rights of both the

mother and the biological father on April 9, 2015. As the termination hearing

approached, the mother made some changes in her life. She moved out of her

parents’ home and into an apartment, began consistently participating in

substance abuse treatment, and began working. However, even these last-ditch

efforts were not wholly positive. The apartment, which the mother had lived in for

only a month at the time of the June 1, 2015 termination hearing, was shared

with the mother’s new boyfriend, who had a substance abuse problem and used

meth. The substance abuse treatment, which the mother had been participating

in consistently for only about a month, was potentially undermined by her

ongoing relationship with an active drug user. The job, which the mother had

begun so recently that at the time of the termination hearing she had not yet

received a paycheck, was apparently not meant to be permanent, because the

mother already had plans to quit it for another.
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On July 22, 2015, the juvenile court issued an order terminating the

parental rights of both of H.S.H.’s parents. The mother appeals.

II. Standard of Review

We conduct a de novo review of proceedings terminating parental rights.

In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). An order terminating parental

rights will be upheld if there is clear and convincing evidence of grounds for

termination under Iowa Code section 232.116. In re D.W., 791 N.W.2d 703, 706

(Iowa 2010). Evidence is “clear and convincing” when there are no serious or

substantial doubts as to the correctness of conclusions drawn from it. Id. We

give weight to the factual determinations of the juvenile court, particularly

regarding the credibility of witnesses, although we are not bound by them. Id.

The primary consideration of our review is the best interests of the child. In re

A.B., 815 N.W.2d 764, 773 (Iowa 2012).

III. Analysis

Termination of parental rights under Iowa Code chapter 232 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

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 factors set forth in section 232.116(3) should

serve to preclude termination. Id.
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The juvenile court terminated the mother’s parental rights on six different

grounds, as set forth in Iowa Code section 232.116(1)(b), (d), (e), (h), (i), and (l).

(2015). When a juvenile court terminates parental rights on more than one

ground, as it has in this case, we may affirm the order on any of the statutory

grounds supported by the record. D.W., 791 N.W.2d at 707. The mother’s

appeal challenges the sufficiency of the evidence to support the juvenile court’s

“clear and convincing” findings under sections 232.116(1)(b), (d), (e), (i), and (l);

her appeal does not challenge the juvenile court’s finding under section

232.116(1)(h).1 Thus, although she argues that the evidence presented at the

termination hearing was insufficient to satisfy five of the six grounds for

termination, by not challenging the sixth, the mother has conceded that evidence

presented at the termination hearing was sufficient to establish the basis for

termination set forth in section 232.116(1)(h) by clear and convincing evidence.

That single unchallenged ground is enough to affirm, and so the first of our three

steps of analysis requires no further discussion.

With respect to the second and third steps of analysis, the mother argues

that because termination should be viewed as an outcome of last resort, and

because H.S.H. was placed in the temporary legal custody of relatives (her

grandparents), section 232.116(3)(a) applies and termination was improper and

not in the child’s best interests under section 232.116(2). On our de novo review,

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At the termination hearing, the mother requested additional time to prepare for
reunification. However, she does not raise that issue on appeal except to say that
because 232.116(1)(i) and (1)(l) allow for “a reasonable period of time” to remediate her
deficiencies, the State could not have proved those grounds. In any event, we find on
our de novo review that the evidence does not support a likelihood that the child could
be returned to the mother’s care within a reasonable period of time.
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we agree with the juvenile court’s findings that termination of the mother’s

parental rights is in the child’s best interests. The mother’s life continues to be

unstable, and her daughter cannot be returned to her custody at this time or in

the foreseeable future. H.S.H. will be best served by the stability of her paternal

grandparents, with whom she has lived since she was removed from her

mother’s custody. The couple has indicated their desire to permanently integrate

H.S.H. into their home. They have a documented history of providing the child

safe and stable care, and H.S.H. has developed significantly under their care.

We also find termination to be appropriate here, even though the child was

being cared for by her paternal grandparents. Section 232.116(3) provides a set

of statutory factors weighing against termination after it has already been

determined that termination is in the child’s best interests. Section 232.116(3)(a)

provides that the juvenile court “need not terminate the relationship between the

parent and child if . . . [a] relative has legal custody of the child.” Placement with

relatives is not equivalent to being in the legal custody of relatives for purposes of

section 232.116(3)(a). See A.M., 843 N.W.2d at 113. The language of

232.116(3) is permissive, so a juvenile court may choose to forego termination if

any of the listed circumstances are satisfied, but is not obligated to do so. See In

re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App. 2011). Although H.S.H. was

placed in the temporary legal custody of her grandparents, the factor is

permissive and does not weigh against the termination order here.

AFFIRMED.