In the Interest of A.H., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 19-1422
Filed November 27, 2019

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

A.H., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Christine Dalton,

District Associate Judge.

A mother appeals the termination of her parental rights to her child.

AFFIRMED.

Jean Capdevila, Davenport, for appellant mother.

Thomas J. Miller, Attorney General, and Anagha Dixit (until withdrawal) and

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

Barbara E. Maness, Davenport, attorney and guardian ad litem for minor

child.

Considered by Bower, C.J., and May and Greer, JJ.
2

MAY, Judge.

This case is about A.H., who was born in April 2007. In January 2017, the

Iowa Department of Human Services (DHS) took notice of A.H.’s mother. DHS

had received concerns the mother was under the influence of drugs while caring

for her children, including A.H.1 Later, A.H. reported she had witnessed the mother

smoking from a tube. In January 2018, A.H. was removed from the mother’s

custody and placed in the care of her paternal aunt.

Throughout the pendency of this case, the mother struggled with substance-

abuse and mental-health issues. Despite recommendations from DHS and the

juvenile court, the mother made little effort to pursue treatment. She also refused

to take drug tests. But, in May 2019, the mother tested positive for hydrocodone,

methamphetamine, and amphetamine when she gave birth to her youngest child.

The mother also failed to maintain consistent visitation with A.H. During

2019, the mother attended twelve out of twenty-nine offered visits. Of those twelve

visits, seven ended early for unknown reasons.

In January 2019, the State petitioned for termination. Following the October

2019 hearing, the juvenile court terminated the mother’s parental rights under Iowa

Code section 232.116(1)(d) and (e) (2019).2 She now appeals.

Our review is de novo. In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). We

generally use a three-step analysis to review the termination of a parent’s rights.

1
While the mother does have four other children, only one is the subject of this appeal.
The mother’s parental rights to her other children are not at issue. We limit the scope of
our review to the facts and issues pertaining to A.H.
2
The juvenile court also terminated the father’s rights under Iowa Code section
232.116(1)(d) and (e). But the father does not appeal.
3

In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). We must determine: (1) whether a

ground for termination has been established, (2) whether termination is in the

child’s best interest, and (3) whether we should exercise any of the permissive

exceptions to termination. Id. at 472–73.

The mother concedes the grounds for termination were established. She

contends, however, the juvenile court wrongly determined termination was in

A.H.’s best interest. She also argues the juvenile court should have opted for a

guardianship. She claims “[t]he State presented no evidence to suggest that the

child having an ongoing relationship with her mother was not in her best interest,

other than the routine need for permanency.”

We first note “a guardianship is not a legally preferable alternative to

termination.” Id. at 477 (quoting In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App.

2017)). Also, the child’s need for permanency is one of the “defining elements” in

our best-interests analysis. In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady,

J., concurring specially).

Moreover, the issue here is not merely whether A.H. should have some kind

of “ongoing relationship” with the mother. Rather, the question is whether

termination of the parental relationship is in A.H.’s best interest. Like the juvenile

court, we conclude it is. The mother’s uncontrolled substance-abuse and mental-

health issues have prevented her from serving as a safe and stable parent. In

contrast, A.H. has thrived in her paternal aunt’s care. And A.H. has made it clear

that, although she loves her mother, she does not want to live with her. Instead,

she wants to continue living with her aunt. Although a child’s opinions do not

control our best-interest analysis, we do take them into consideration. See In re
4

N.S., No. 19-0533, 2019 WL 2375252, at *2 (Iowa Ct. App. June 5, 2019) (noting

the child expressed a “strong desire” to not return to her father’s care and finding

“the emotional well-being of the child militated against reunification”); see also Iowa

Code § 232.116(2)(b)(2) (noting the court shall consider a child’s preference

between a parent and foster family “if the court determines that the child has

sufficient capacity to express a reasonable preference”); id. § 232.116(3)(b) (noting

the court may forgo termination on the objection of the child if the child is older

than ten years old). But see In re L.P., 370 N.W.2d 839, 843 (Iowa Ct. App. 1985)

(“The best interests of the child are the central determination in termination

proceedings . . . and we know of no authority for the proposition that a child’s

wishes take precedence over his or her best interests in these matters.”).

The mother also notes that “[o]ne of the very specific exceptions to the need

to terminate parental rights occurs when children are placed with a relative or

family member.” She cites no authority to support this assertion. See Iowa R.

App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be

deemed waiver of that issue.”). We infer, though, the mother is relying on section

232.116(3)(a). But it cannot apply because no relative has “legal custody” of A.H.

See In re B.W., No. 19-0602, 2019 WL 2375255, at *4 (Iowa Ct. App. June 5, 2019)

(declining to apply section 232.116(3)(a) because child remained in DHS’s legal

custody while placed in a relative’s physical care).

The juvenile court was correct in terminating the mother’s parental rights.

AFFIRMED.