In the Interest of L.W. and B.W., Minor Children, C.W., Mother, B.W., Father

IN THE COURT OF APPEALS OF IOWA

No. 15-1172
Filed March 9, 2016

IN THE INTEREST OF L.W. AND B.W.,
Minor Children,

C.W., Mother,
Appellant,

B.W., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Thomas W. Mott,

Judge.

The mother appeals the order terminating her parental rights.

AFFIRMED.

William E. Sales III of Sales Law Firm, P.C., Des Moines, for appellant

mother.

Jacob L. Mason of J.L. Mason Law, P.L.L.C., Ankeny, for appellant father.

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

Attorney General, for appellee State.

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

guardian ad litem for minor children.

Considered by Tabor, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

The juvenile court terminated Blake and Catherine’s rights in their

children, L.W. and B.W. The parents each timely filed their respective notices of

appeal, but the supreme court dismissed Blake’s appeal for failure to timely file

his petition on appeal. See Iowa R. App. P. 6.201(2). Thus, we consider only

the mother’s appeal. On appeal, the mother contends that the State failed to

prove the statutory grounds authorizing the termination of her parental rights and

that termination of her parental rights was in the best interests of the children.

She also contends termination was unnecessary because the child was placed

with a relative.

We review de novo proceedings terminating parental rights. See In re

A.M., 843 N.W.2d 100, 110 (Iowa 2014). We examine both the facts and law,

and we adjudicate anew those issues properly preserved and presented. See In

re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We will uphold an order

terminating parental rights only if there is clear and convincing evidence

establishing the statutory grounds for termination of the parent’s rights. See In re

C.B., 611 N.W.2d 489, 492 (Iowa 2000). Evidence is “clear and convincing”

when there is no serious or substantial doubt as to the correctness of the

conclusions of law drawn from the evidence. Id.

Termination of parental rights under Iowa Code chapter 232 follows a

three-step analysis. See In re P.L., 778 N.W.2d 33, 40-41 (Iowa 2010). First, the

court must determine if a ground for termination under section 232.116(1) (2015)

has been established. See id. at 40. Second, if a ground for termination is

established, the court must apply the framework set out in section 232.116(2) to
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decide if proceeding with termination is in the best interests of the child. See 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 termination. See id. at 41.

In November 2013, the parents consented to the removal of L.W. after

both parents tested positive for methamphetamine. The child was placed with

the maternal grandmother. In January 2014, the child was adjudicated in need of

assistance. The mother was provided with a variety of services and

demonstrated a period of sobriety and an ability to provide appropriate care for

and supervision of L.W. By August of 2014, a trial home placement was

attempted. B.W. was born in September 2014 during the trial home placement

period. On September 26, 2014, the children were removed from the mother

after the children were exposed to domestic violence in the home. The children

were placed with the maternal grandmother. B.W. was adjudicated in need of

assistance. The mother was provided with additional services, but she never

demonstrated the ability to care for the children. Ultimately, the juvenile court

terminated her parental rights pursuant to Iowa Code section 232.116(1)(h) and

(l).

The mother first contends there was not clear and convincing evidence

supporting the statutory grounds authorizing termination. “When the juvenile

court terminates parental rights on more than one statutory ground, we need only

find grounds to terminate under one of the sections cited by the juvenile court to

affirm.” In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999). We turn our

attention to section 232.116(1)(h). Under this section, the State was required to
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prove, as relevant here, “[t]here is clear and convincing evidence that 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). A child cannot be

returned to a parent's care if the child would remain a CINA or would be at risk of

adjudicatory harm. See In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct. App. 1995);

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.” M.M., 483 N.W.2d at 814;

see In re C.M.T., 433 N.W.2d 55, 56 (Iowa Ct. App. 1988).

There is clear and convincing evidence the children could not be returned

to the mother’s care at the time of the termination hearing without being at risk of

harm. Catherine, age 25 at the time of the hearing, has a history of substance

use commencing more than a decade ago when she was a young teenager. She

has used alcohol, marijuana, cocaine, LSD, heroin, and methamphetamine. By

her own admission, she has completed substance treatment and relapsed on

numerous occasions over the years, failing to maintain sobriety for any material

period of time outside prison or other supervised/clinical settings. By the fall of

2014, Catherine was using methamphetamine, heroin, and cocaine. She

participated in several treatment programs and was successfully discharged from

one in March 2015. Almost immediately, she relapsed. She started associating

with known users. By the end of April, Catherine had relapsed on

methamphetamine and was admitted to the hospital due to suicidal ideations.

On another occasion, shortly prior to the termination hearing, a friend found

Catherine passed out in her residence due to using. When the department of
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human services requested Catherine provide a drug screen, she refused to do

so. She then sent inappropriate messages to her FSRP worker. Catherine’s

long history of substance abuse, repeated relapses, and demonstrated inability to

maintain sobriety outside a supervised setting demonstrates the children could

not have been returned to her care at the time of the termination hearing. See In

re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (“Where the parent has been

unable to rise above the addiction and experience sustained sobriety in a

noncustodial setting, and establish the essential support system to maintain

sobriety, there is little hope of success in parenting.”).

We next address whether the termination of Catherine’s parental rights

was in the children’s best interest. When considering the best interest of the

child, we “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.” Iowa Code

§ 232.116(2). We consider both the long-term and immediate interests of the

child. See In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). Insight into what the

future likely holds for a child if returned to a parent is gained from evidence of the

parent's past performance; it may be indicative of the quality of future care the

parent is capable of providing. See In re A.B., 815 N.W.2d 764, 778 (Iowa 2012);

J.E., 723 N.W.2d at 798. We give substantial weight to case history records in

assessing a parent's ability to provide care in the future. See In re S.N., 500

N.W.2d 32, 34 (Iowa 1993).

The termination of Catherine’s parental rights was in the children’s best

interest. While Catherine has demonstrated an ability to provide appropriate care
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for the children for short periods of time, clear and convincing evidence

establishes she cannot do so for any great length of time. She has exposed the

children to domestic violence in the home. She associates with known

substance abusers. Her long-term substance abuse renders her unavailable to

meet the physical, mental, and emotional needs of the children. We “cannot

deprive a child of permanency after the State has proved a ground for

termination under section 232.116(1) by hoping someday a parent will learn to be

a parent and be able to provide a stable home for the child.” P.L., 778 N.W.2d at

41; see also A.B., 815 N.W.2d at 778 (noting a parent's past conduct is

instructive in determining the parent's future behavior); In re C.K., 558 N.W.2d

170, 172 (Iowa 1997) (stating that when considering what the future holds if a

child is returned to the parent, we must look to the parent's past behavior

because it may be indicative of “the quality of care the parent is capable of

providing in the future”).

Catherine argues that the juvenile court should not have terminated her

parental rights because the children were placed with the maternal grandmother.

See Iowa Code § 232.116(3)(a) (“The court need not terminate the relationship

between the parent and child if the court finds . . . [a] relative has legal custody of

the child.”). The exception set forth in section 232.116(3)(a) is permissive and

not mandatory. See C.K., 558 N.W.2d at 174 (“An appropriate determination to

terminate a parent-child relationship is not to be countermanded by the ability

and willingness of a family relative to take the child.”); In re D.S., 806 N.W.2d

458, 474–75 (Iowa Ct. App. 2011) (stating this provision is permissive and not

mandatory). Thus, even where custody of the child is with a relative, the juvenile
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court may proceed with termination of the parent-child relationship where there is

clear and convincing evidence establishing a ground for termination and

termination is in the best interest of the child. See C.K., 558 N.W.2d at 174 (“The

child's best interests always remain the first consideration.”). Regardless,

Catherine’s reliance on this exception is misplaced. The exception applies only

where a relative has custody of the children. Here, the termination order

provides the Iowa Department of Human Services shall continue to have custody

of the children. Thus, the exception is inapplicable. See A.M., 843 N.W.2d at

113; In re I.V., No. 15-0608, 2015 WL 4486237, at *3 (Iowa Ct. App. July 22,

2015) (holding section 232.116(3)(a) is inapplicable where the department of

human services had custody of child placed with relative).

For the foregoing reasons, the order of the juvenile court is affirmed.

AFFIRMED.