In the Interest of M.M., M.L., and M.L., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 18-0102
Filed March 21, 2018

IN THE INTEREST OF M.M., M.L., and M.L.,
Minor Children,

B.H., Mother,
Appellant.
________________________________________________________________

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

Associate Judge.

A mother appeals the termination of her parental relationship with three

children. AFFIRMED.

Kelsey L. Knight of Carr & Wright, P.L.C., Des Moines, for appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Erin E. Mayfield of Youth Law Center, Des Moines, guardian ad litem for

minor children.

Considered by Doyle, P.J., and Tabor and McDonald, JJ.
2

TABOR, Judge.

Ma.L., My.L, and M.M. were ages three years, two years, and two months

when removed from their mother’s care based on concerns about her substance

abuse. Nineteen months later, the juvenile court terminated the mother’s parental

relationship with the children, concluding the “upheaval and chaos” in their young

lives must “come to an end.” The mother appeals the order, contending the State

did not offer sufficient evidence for termination under Iowa Code section

232.116(1) (2017). She alternatively argues the court should have granted a six-

month extension of permanency. She also alleges termination was not in the best

interests of the children and would be harmful to them because of their close

relationship with her. See Iowa Code § 232.116(2), (3)(c).

After independently reviewing the record,1 we find clear and convincing

evidence the children could not be returned to their mother’s care at the time of the

termination hearing. We conclude the mother did not preserve error on her request

for additional time to work toward reunification. We also conclude the children’s

best interests are served by moving toward a stable, long-term living arrangement.

Accordingly, we affirm the juvenile court’s order.2

1
We review termination-of-parental-rights proceedings de novo, which means examining
both the facts and law and adjudicating anew those issues properly preserved and
presented. See In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We are not bound
by the juvenile court’s factual findings, but we give them weight, especially when witness
credibility is at stake. See In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). The State must
offer clear and convincing proof, which means we see no “serious or substantial doubts
as to the correctness [of] conclusions of law drawn from the evidence.” In re D.W., 791
N.W.2d 703, 706 (Iowa 2010) (quoting In re C.B., 611 N.W.2d 489, 492 (Iowa 2000)).
2
Ma.L.’s father is deceased. The juvenile court terminated the parental rights of the
putative fathers of the other two children; those fathers are not parties to this appeal.
3

I. Facts and Prior Proceedings

In May 2016, the youngest child, M.M., tested positive at birth for

tetrahydrocannabinol , the active component of marijuana. The mother’s middle

child, My.L., also tested positive for illegal drugs when he was born in 2013. The

Iowa Department of Human Services (DHS) worried about the mother’s ongoing

substance abuse and the possibility that she committed the offense of operating

while intoxicated (OWI) while one of the children was in the car. When the mother

did not respond to DHS inquiries, the State filed a petition to adjudicate the children

in need of assistance (CINA). The juvenile court granted the CINA petition in July

2016. After the children were removed, their maternal grandmother stepped in to

care for them.

During the fall and winter of 2016, the mother spent nearly 120 days in jail

for her pending OWI charges. But by February 2017, she had “made significant

progress in stability in housing and mental health well-being,” according to the

juvenile court, though concerns surrounding her substance abuse and attendance

at visitations persisted. The next month, the mother’s progress came to a halt.

She did not attend scheduled visitations, and her probation officer informed the

DHS that she tested positive for methamphetamine, opiates, and cocaine. “Per

the probation officer, the mother admitted to using methamphetamine and

Percocet but denied use of cocaine.” As a result of this probation violation, a

warrant issued for her arrest. In May 2016, the juvenile court directed the State to

file a petition to terminate the mother’s parental rights. The court emphasized the

maternal grandmother was not to allow the mother contact with the children “unless

and until” the mother turned herself in on her outstanding warrant.
4

The juvenile court held a termination hearing in August 2017. The mother

was incarcerated but attended the hearing. She testified that after her release from

jail she would be going to inpatient treatment for several weeks. The mother had

not visited the children since February 2017, five months earlier, because she had

a probation warrant and did not want to go to jail. The mother expressed a desire

to open a guardianship for the children with her mother. The juvenile court did not

immediately terminate the mother’s rights. Instead, in a September 6, 2017 order,

the court ordered the DHS to take two steps: (1) have the case staffed by the

African American Case Review Team in October and (2) meet with the maternal

grandmother to review the differences between guardianship and termination of

parental rights. The court ordered the children to remain in the grandmother’s

care.

Three weeks later, the State filed a motion to modify the placement, alleging

the grandmother allowed the mother to have unsupervised contact with the

children, and the children were left in the mother’s care while she was under the

influence of heroin. The State also indicated the grandmother was facing criminal

charges for assault with a weapon. After the juvenile court filed a modification

order, the DHS placed the children in foster care. The mother did not request visits

with the children after they were removed from the grandmother’s care. The court

re-opened the termination record in early December 2017 and received additional

exhibits. The foster parents reported to the court that the oldest child, Ma.L., was

exhibiting concerning behaviors.
5

In January 2018, the juvenile court issued its order terminating the parental

relationship between the mother and her three children. The court cited Iowa Code

section 232.116(1), subparagraphs (b), (e), (f), and (h). The ruling noted:

DHS has staffed this case with the African American Case Review
Team in an effort to come up with culturally appropriate and equitable
permanency options for this family and for these children, and some
meaningful direction was given and is being taken seriously by DHS
per the December 2017 report.

The mother now appeals the termination order.

II. Analysis of Mother’s Claims

A. Statutory Basis for Termination

When the juvenile court terminates parental rights on more than one

statutory ground, we may affirm the order on any ground supported by clear and

convincing evidence. D.W., 791 N.W .2d at 707. In this case, we find clear and

convincing evidence to support termination under section 232.116(1)(f)3 for Ma.L.,

the oldest child, and section 232.116(1)(h)4 for My.L. and M.M., the younger

children.

3
The State must prove these four elements:
(1) The child is four years of age or older.
(2) The child has been adjudicated [CINA under] section 232.96.
(3) The child has been removed from the physical custody of the child’s
parents for at least twelve of the last eighteen months, or for the last twelve
consecutive months and any trial period at home has been less than thirty
days.
(4) There is clear and convincing evidence that at the present time the
child cannot be returned to the custody of the child’s parents as provided
in section 232.102.
Iowa Code § 232.116(1)(f).
4
The State must prove these four elements:
(1) The child is three years of age or younger.
(2) The child has been adjudicated [CINA under] section 232.96.
(3) The child has been removed from the physical custody of the child’s
parents for at least six months of the last twelve months, or for the last six
6

The mother challenges the fourth element of both (f) and (h)—whether the

children could have been returned to her custody “at the present time.” Under both

sections, “at the present time” means the time of the termination hearing. In re

A.M., 843 N.W.2d 100, 111 (Iowa 2014). The mother contends “she attended most

court hearings and was engaged throughout the case when she was not

incarcerated.” Her contention ignores the five months she did not attend visitation

with the children because of an outstanding warrant for her arrest and her refusal

to set up visits after DHS placed them with a foster family. Because of her ongoing

substance abuse and criminal difficulties the mother was not in a position to

resume care of the children at the time of the termination hearing. Termination

was proper under paragraphs (f) and (h).5

In her petition on appeal, the mother refers in passing to the possibility the

juvenile court “could have provided an additional period of rehabilitation (in the

form of a six-month extension of permanency) and if that had been granted, the

mother may have been in a position to resume care at that point in time.” The

mother did not ask to defer permanency under section 232.104(2)(b) at either

termination hearing. Accordingly, this argument is not properly before us. Cf. In

re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999) (finding issue of additional

consecutive months and any trial period at home has been less than thirty
days.
(4) There 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).
5
The juvenile court believed paragraph (h) did not apply to My.L. because he turned four
before the termination order issued. But because we look to the last day of the termination
hearing as the critical time, we affirm the State’s petition on that ground. See M.W., 876
N.W.2d at 221.
7

services had not been preserved for appellate review where parent did not make

demand in the juvenile court).

B. Best Interests

The mother next contends termination was not in the children’s best

interests under section 232.116(2). That provision focuses on the children’s

safety, as well as the best placement for furthering their long-term nurturing and

growth, and their physical, mental, and emotional condition and needs. See In re

P.L., 778 N.W.2d 33, 40 (Iowa 2010). In applying the statutory best-interest

standard we cannot rule in a way that would deprive children of permanency by

hoping someday their parent will be able to offer proper care and a stable home.

Id. at 41. Here, the mother repeatedly exposed her children to illegal drugs and

was not able to attend to their needs on a regular basis. As the juvenile court

reasoned, the children’s best interests were served by moving “in the direction of

real and lasting permanency.”

C. Closeness of Relationship

Finally, the mother argues the juvenile court should have refrained from

severing her legal ties with the three children because termination would be

detrimental due to the closeness of the parent-child relationship. Iowa Code

§ 232.116(3)(c). The mother points to family safety, risk, and permanency reports

noting that when she had supervised visits with the children the interactions went

well, and the children looked forward to seeing her.

Whatever bond the mother had with her children was strained by the months

on end when she did not attend visits. After reviewing the record, we conclude the

closeness of the parent-child relationship is not cause for declining to go forward
8

with the termination. See D.W., 791 N.W.2d at 709 (explaining “our consideration

must center on whether the [children] will be disadvantaged by termination, and

whether the disadvantage overcomes [the parent’s] inability to provide for [the

children’s] developing needs”).

AFFIRMED.