In the Interest of L.W., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 20-0783
Filed August 19, 2020

IN THE INTEREST OF L.W.,
Minor Child,

A.W., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

District Associate Judge.

A mother appeals the termination of her parental rights to her infant

daughter. AFFIRMED.

Lisa A. Allison of Allison Law Firm, LLC, Des Moines, for appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

ConGarry D. Williams of Juvenile Public Defender, Des Moines, attorney

and guardian ad litem for minor child.

Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.
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SCHUMACHER, Judge.

A mother appeals the termination of her parental rights to L.W., her infant

child. On appeal, the mother contends the district court erred when it found the

mother lacked the ability or willingness to respond to services that would correct

the situation and that a period of rehabilitation would not correct the situation, the

third and fourth elements of Iowa Code section 232.116(1)(g) (2020). The mother

also argues an additional six months’ time for reunification efforts should have

been granted.

I. Facts and Prior Proceedings.

L. W. is a nine-month-old child, born in May 2019. L.W. came to the

attention of the Iowa Department of Human Services (IDHS) at birth due to the

mother’s intellectual disabilities, unresolved mental-health issues, and prior

termination proceedings regarding two other children. L.W. was removed from her

mother’s care when she was only five days old, it being determined that the mother

was unable to meet her own needs and the needs of newborn L.W.

An uncontested adjudication hearing was held on July 2, 2019, with the

district court determining L.W. was a child in need of assistance pursuant to Iowa

Code section 232.2(6)(c)(2) and (n) (2019). A dispositional hearing was held on

September 12, 2019, at which time paternity to L.W. was confirmed. L.W.’s

biological father was on the sex offender registry. Just prior to the dispositional

hearing, L.W.’s father was sentenced for failure to comply with the sex offender

registry, second or subsequent offense. An indeterminate five-year term of

imprisonment was suspended and he was placed on probation.
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A permanency hearing was held on December 12, 2019. Following hearing,

the court directed a termination petition be filed with respect to L.W. L.W. remained

out of parental custody, with fully supervised visits for the parents. There was

never a trial home placement. The termination hearing was held over a period of

two days in March 2020. Following hearing, the court terminated both the mother

and father’s parental rights.1

Throughout the prior termination proceedings in 2014 and 2018, the mother

struggled to recognize unsafe relationships and struggled to parent with her

intellectual disability. The same issues presented concerning L.W. The mother

became involved with L.W.’s father, although aware that he was a registered sex

offender. While she testified she was not currently in a relationship with him, she

acknowledged it was only because he decided to “go back to his wife.” L.W.’s

father was quickly replaced with the mother’s current boyfriend, who has a criminal

history that involves an assault on a child. The mother expressed that her

boyfriend was “safe,” as he told her the criminal matter was an accident. While the

relationship with him ended briefly due to his involvement with another female, the

mother allowed him to move into her home in December 2019 against the advice

of her therapist after he convinced the mother that another female kidnapped him,

precipitating his short absence. Although he has never met L.W., the mother is

confident he could help her take care of L.W.

1 At the time of the termination hearing, the father was in custody for his sixth
violation of the sex offender registry and a probation violation. He participated by
phone on the first day of the termination hearing but declined to participate on the
second day. He does not appeal.
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The mother suffers from intellectual disabilities that have interfered with her

parenting; she herself is subject to a guardianship. I.Q. testing completed in 2014

reflected an I.Q. of 61, placing her in the range of a mild intellectual disability.

While she was ordered to complete a psychological evaluation since the time of

L.W.’s adjudication, she failed to complete such until December 2019. Because

of the delay in completion, the report following the evaluation was not available at

the termination hearing. During visits, which have remained fully supervised, the

mother would need prompting for basic parenting skills, such as how to make a

bottle. While she attended counseling, she revoked her release to IDHS so that

her counselor could not share information with the case manager.

II. Analysis.

Terminations follow a three-step analysis. In re P.L., 778 N.W.2d 33, 40

(Iowa 2010). First, the juvenile court must decide if the State proved one of the

enumerated grounds in section 232.116(1) (2020). Id. Second, the court must

consider if termination is in the best interests of the child by applying the factors in

section 232.116(2). Id. Third, if the factors require termination, the court must see

if any circumstances in section 232.116(3) compel it to forego termination. Id. at

41. “The factors weighing against termination in section 232.116(3) are

permissive, not mandatory.” In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App.

2011). The court may exercise its discretion in deciding whether to apply the

factors in section 232.116(3) to save the parent-child relationship based on the

unique circumstances of each case and the best interests of the child. In re A.M.,

843 N.W.2d 100, 113 (Iowa 2014).
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A. Statutory Ground Supporting Termination

When the court terminates a parent’s rights on more than one statutory

ground, we may affirm if any of the grounds cited are supported by clear and

convincing evidence. In re D.W., 791 N.W .2d 703, 706 (Iowa 2010). The district

court terminated the mother’s parental rights pursuant to Iowa Code section

232.116(1)(g) and (h). The mother does not challenge termination under

232.116(1)(h).

Accordingly, we begin by acknowledging that a parent’s intellectual

disability “alone is not sufficient grounds for termination.” A.M., 843 N.W.2d at 111.

(quoting D.W., 791 N.W.2d at 708). But it can be a relevant consideration when it

affects the child’s well-being. Id. Here, the mother’s intellectual disability

contributed to her inability to recognize unsafe individuals and affected her ability

to provide basic parenting skills.

The unchallenged ground requires that the child be three years of age or

less at the time of the termination hearing; has been adjudicated a child in need of

assistance; has been out of the parents’ custody for six of the last twelve months,

or the last six consecutive months and any trial period was less than thirty days;

and cannot be returned to the parent’s custody at the present time. We affirm the

termination on the unchallenged ground, section 232.116(1)(h), as L.W. was nine

months old at the termination hearing. She was removed from her mother’s

custody when she was only five days old. L.W. was adjudicated to be a child in

need of assistance and remained out of parental custody since the initial removal.

The record supports the finding that the child could not be returned to her mother’s

care at the time of the termination hearing, which is not challenged by the mother
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on appeal. While it is clear that the mother loves L.W. and desires to parent her

baby, clear and convincing evidence supports termination of the mother's parental

rights under section 232.116(1)(h). We affirm termination pursuant to this

unchallenged statutory ground for termination.

B. Iowa Code Section 232.104(2)(b)

The mother requests additional time for reunification, which we infer as an

invocation to apply Iowa Code section 232.104(2)(b).2 This statutory provision

allows the juvenile court to “[e]nter an order pursuant to section 232.102 to

continue placement of the child for an additional six months at which time the court

shall hold a hearing to consider modification of its permanency order.” Iowa Code

§ 232.104(2)(b). “An order entered under this paragraph shall enumerate the

specific factors, conditions, or expected behavioral changes which comprise the

basis for the determination that the need for removal of the child from the child’s

home will no longer exist at the end of the additional six-month period.” Id.; In re

H.L., No. 14-0708, 2014 WL 3513262, at *3 (Iowa Ct. App. July 16, 2014).

The record is devoid of evidence that additional time or additional services

which could comprise the basis for the determination that the need for removal of

the child from the child’s home will no longer exist at the end of the additional six-

month period. The mother has been involved with IDHS for a period spanning over

five years. Even with the services provided, the mother has been unable to

recognize the danger her choices in relationships present to the child. She further

has not progressed beyond fully-supervised visits, with the provider needing to

2 We infer this argument from the mother’s briefing in regard to the challenged
statutory ground for termination.
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continue to provide prompting during the visits with regard to the child’s basic

needs.3

As noted by the district court, “[t]his child needs a long-term commitment

from a parent to be appropriately nurturing, supportive of their growth and

development, and who can meet their physical, mental, emotional and safety

needs.” The court further found that the mother has not demonstrated she was

willing or able to fulfill this parental role. We agree. Given the length of time the

mother has been involved with IDHS and the extent of services, we cannot find

that the need for removal would be resolved in six months.

On appeal, the mother does not challenge the district court’s best interest

findings or the declination of the application of permissive exceptions to termination

set forth in Iowa Code section 232.116(3). We, therefore, do not address the

same.

III. Conclusion.

We affirm the juvenile court’s order terminating the mother’s parental rights

under section 232.116(1)(h). An additional six months will not resolve the need for

removal from parental care.

AFFIRMED.

3 At nine-months, L.W. is completely non-verbal and may need additional services.