In the Interest of A.A., C.W., and M.W., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 21-1972
Filed March 30, 2022

IN THE INTEREST OF A.A., C.W. and M.W.,
Minor Children,

S.P., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Warren County, Brendan Greiner,

District Associate Judge.

A mother appeals the termination of her parental rights. AFFIRMED.

Gina E.V. Burress of Carr Law Firm, P.L.C., Des Moines, for appellant

mother.

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

Attorney General, for appellee State.

Yvonne C. Naanep, Des Moines, attorney and guardian ad litem for minor

children.

Considered by May, P.J., and Schumacher and Badding, JJ.
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BADDING, Judge.

A mother who candidly acknowledged that she would need another month

before her three young children, born in 2016, 2017, and 2020, could be returned

to her care appeals the termination of her parental rights under Iowa Code

section 232.116(1)(f) (2021).1 In an argument elevating form over substance, the

mother claims she was “denied due process of law when the [juvenile] court found

a basis for termination which was not asserted in the State’s petition” for the

younger two children. She also challenges the substance of the court’s ruling,

attacking each of the three steps in our de novo review of termination proceedings.

See In re L.B., ___ N.W.2d ___, ___, 2022 WL 495312, at *1–2 (Iowa 2022).

Alternatively, the mother claims that she should have been given more time to

reunify with her children or that a guardianship should have been established.

I. Background Facts and Proceedings

The mother’s youngest child tested positive for marijuana at birth, prompting

a report to the Iowa Department of Human Services. Voluntary services were

initiated in June 2020, and the children were allowed to remain in their parents’

care. But in September, concerns arose about methamphetamine use by the

mother and the father of the two younger children. Each denied use, but both

tested positive for methamphetamine. When confronted with the positive test, the

mother admitted that she “relapsed one time . . . when she had to clean her

apartment” for the department. In October, the State sought and obtained an order

1 The oldest child’s father did not participate in the proceedings, his rights were
terminated, and he did not appeal. The father of the younger two children filed a
notice of appeal following the termination of his parental rights, but his appeal was
dismissed by the supreme court for failure to comply with appellate rules.
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for temporary removal, and the children were placed in the legal custody of the

maternal grandparents under department supervision. The children were

subsequently adjudicated as in need of assistance.

The mother was quick to obtain substance-abuse and mental-health

evaluations in early November. But she was slow to respond to requests for drug

screens over the next few months. When she did submit to testing, she was

usually positive for marijuana. One of her tests in February 2021 “came back with

a [THC] level of 700.” Her substance-abuse counselor noted, “Typical resu[l]ts are

between 100 and 200 for active users. This is extraordinarily high.” The mother

told the counselor conducting her substance-abuse evaluation about a long history

of substance abuse:

[The mother] identifies marijuana as her primary drug of choice with
the first age of use being 19 and last date of use was 11/19/2020.
She reports smoking three times weekly, approximately one gram
consumed on each date of use. [The mother] reports that this use
pattern was consistent throughout her pregnancy. . . . [She] identifies
methamphetamine as her secondary drug of choice with the first age
of use being 19 and the last date of use was in September 2020.
She reports smoking or snorting up to four times daily but has
difficulty quantifying her use. She states that “we were using a lot. I
don’t even know how much.”

During an updated evaluation conducted in mid-February, the mother

openly stated: “If wax or weed is available, I will use it. I just used today.” This

evaluation recommended that the mother pursue inpatient treatment due to her

inability to stop using marijuana. The mother began participating in recovery court

but then decided to discontinue the program. Then, in mid-March, the mother

tested positive for methamphetamine, amphetamines, and marijuana. She

admitted to using marijuana but denied any other drug use. The mother was
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admitted into inpatient substance-abuse treatment in late March but was asked to

leave the same day and unsuccessfully discharged a few days later after declining

an opportunity to return to the program.

In its April permanency order, the juvenile court granted the mother a six-

month extension of time so that she could complete inpatient treatment and

demonstrate the ability to provide a safe and stable home for the children. Shortly

after that order, the mother entered a four-week substance-abuse program. She

was successfully discharged from the program in mid-May and began participating

in after-care services. Unfortunately, her participation was sporadic and short-

lived. In August, a department worker testified the mother showed signs of being

under the influence of methamphetamine—appearing tired with droopy eyes, “very

twitchy,” and “very defensive.” Around the same time, her counselor became

concerned the mother “may be using again.” By October, the mother had not

meaningfully participated in treatment in several months. She had also stopped

responding to the department’s requests for drug tests. As a result, the State filed

petitions for termination of the mother’s parental rights, alleging termination was

appropriate under Iowa Code section 232.116(1)(d) and (l) as to all children, (f) as

to the oldest child, and (h) as to the younger two children.

A termination hearing was held in November. When asked how long she

needed before the children could return to her care, the mother answered: “A

month.” In response, the State asked, “What’s going to change in a month?” The

mother answered, “I’ll give you guys clean drug tests.” In its termination ruling, the

juvenile court found that while the mother could maintain short periods of sobriety,

she could not demonstrate long-term sobriety. As a result, the court concluded the
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children could not be returned to the mother’s care and terminated her parental

rights to all three children under section 232.116(1)(f). This appeal followed.

II. Analysis

As alluded to at the beginning of this opinion, we apply a three-step analysis

in conducting our de novo review of termination of parental rights. L.B., ___

N.W.2d at ___, 2022 WL 495312, at *2. We ask whether (1) a statutory ground for

termination is satisfied, (2) the children’s best interests are served by termination,

and (3) a statutory exception applies and should be exercised to preclude

termination. Id.; see Iowa Code § 232.116(1)–(3).

A. Grounds for Termination

We begin with the mother’s due process argument, which stems from the

juvenile court citing Iowa Code section 232.116(1)(f) in terminating the mother’s

rights to the younger two children. The mother argues this provision does not apply

to the younger two children due to their age and asserts terminating her rights

under that section violated her due process right to notice because it was not

alleged in the petitions for those two children. The State responds that the petitions

properly sought termination as to the younger two children under section

232.116(1)(h),2 the court separately analyzed the groupings of children, and the

2 We have explained the differences between section 232.116(1)(f) and (h) as
follows:
The differences between sections 232.116(1)(f) and 232.116(1)(h)
involve the ages of the children at issue and the length of the period
of removal. In pertinent part, section 232.116(1)(f) applies to children
four years of age or older with a period of removal of twelve of the
last eighteen months or the last twelve months, and section
232.116(1)(h) applies to children three years of age or younger with
a period of removal of six of the last twelve months or the last six
months.
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citation to section 232.116(1)(f) in the court’s ruling was a typographical error. We

agree.

For starters, it is true that paragraph (f) does not apply to the two younger

children, given their ages. But the State’s petitions put the mother on notice that

termination under paragraph (h) was in play, and “we must ‘affirm an appeal where

any proper basis appears for a trial court’s ruling, even though it is not one upon

which the court based its holding.’” M.B., 2020 WL 569649, at *2 (quoting In re

M.W., 876 N.W.2d 212, 221 (Iowa 2016)). The erroneous reference to

paragraph (f), a presumed typographical error, therefore “has no legal

significance.” Id.; cf. In re H.C., No. 16-1961, 2017 WL 512798, at *2 (Iowa Ct.

App. Feb. 8, 2017) (“[W]e decline to place form over substance and waste judicial

resources on what was clearly a clerical error.”).

We turn to the mother’s argument that the State failed to prove the children3

could not be returned to her care at the time of the termination hearing. See Iowa

Code § 232.116(1)(f)(4), (h)(4); In re D.W., 791 N.W.2d 703, 707 (Iowa 2010)

(interpreting the statutory language “at the present time” to mean “at the time of

the termination hearing”). The mother claims she “has shown a consistent desire

to change,” highlighting her engagement in treatment and therapy, attendance at

visits, and her employment and financial stability. But a consistent desire to

In re M.B., No. 19-1884, 2020 WL 569649, at *2 (Iowa Ct. App. Feb. 5, 2020)
(footnotes omitted), further review denied (Feb. 26, 2020).
3 While the mother only mounts this argument as it relates to the oldest child, that

limitation appears to hinge on her assumption that she would be granted relief on
her claim that the court improperly terminated her rights as to the younger children
under the wrong provision. Having rejected that claim, we choose to address
whether all three children could be returned to the mother’s care.
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change is not enough for these young children, who need their parent to actually

change so that they can have safe and stable lives.

While the mother participated in treatment early on in the case, her

participation was essentially non-existent in the months leading up to the

termination hearing. What is even more troubling is the fact that the mother

continued to use drugs throughout the proceedings and while in treatment. That

just goes to show treatment has not been beneficial to the mother. And while the

mother wanted the children returned to her care, she agreed that she would need

more time to prove herself worthy. This amounts to clear and convincing evidence

that the children could not be returned to her care at the time of the termination

hearing. So we find the evidence sufficient to support termination under

section 232.116(1)(f) and (h).

B. Best Interests and Statutory Exception

The mother argues termination is not in the children’s best interests, see

Iowa Code § 232.116(2), due to the closeness of the parent-child bonds and

detriment resulting from severance. See id. § 232.116(3)(c). We choose to

separately address the often-conflated best-interests and statutory-exception

arguments. See In re A.S., 906 N.W.2d 467, 472–73 (Iowa 2019) (discussing

three-step termination framework).

1. Best Interests

In determining whether termination is in the best interests of children, we

“give primary consideration to the child[ren]’s safety, to the best placement for

furthering the long-term nurturing and growth of the child[ren], and to the physical,

mental, and emotional condition and needs of the child[ren].” Iowa Code
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§ 232.116(2). The defining elements of a child’s best interests are safety and need

for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).

The children have been removed from parental care for more than a year.

The mother did go through the motions for a period of time, leading to some

occasional bright spots in the case. But those bright spots were overshadowed by

her continued drug use. And in the months leading up to termination, she stopped

even trying to go through the motions, ending her participation in treatment and

refusing to provide drug screens. While she now, on the eve of termination, wants

to make the changes she was directed to make throughout the proceedings,

waiting that long is too late. See In re C.B., 611 N.W.2d 489, 495 (Iowa 2000).

“[W]e cannot deprive a child of permanency after the State has proved a ground

for termination” by hoping the parent will rectify the situation sometime in the future.

See In re A.B., 815 N.W.2d 764, 777 (Iowa 2012) (quoting In re P.L., 778 N.W.2d

33, 41 (Iowa 2010)). The mother has been unable to minister to the children’s

safety, nurturing and growth, and needs, all of which are now being met by their

maternal grandparents. See Iowa Code § 232.116(2). We agree with the juvenile

court that the children’s best interests are best served by termination.

2. Statutory Exception

The mother argues termination of her rights would be detrimental to the

children based on the closeness of the parent-child bonds. See Iowa Code

§ 232.116(3)(c). We first note the application of a statutory exception to

termination, if such grounds exist, is “permissive, not mandatory.” M.W., 876

N.W.2d at 225 (quoting In re A.M., 843 N.W.2d 100, 113 (Iowa 2014)). While we

acknowledge a bond between the mother and children, we conclude she failed to
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meet her burden to show “that the termination would be detrimental to the child[ren]

. . . due to the closeness of the parent-child relationship,” especially given the

children’s young ages. Iowa Code § 232.116(3)(c); see also A.S., 906 N.W.2d at

476 (“[T]he parent resisting termination bears the burden to establish an exception

to termination . . . .”). The mother presented no evidence the children would suffer

physically, mentally, or emotionally if her rights were terminated. As such, we

conclude this exception to termination is not applicable.

C. Additional Time

The mother argues “[she] would have been able to correct the situation and

resume care of the children” had she been “given the benefit of additional time to

continue working toward reunification.” Iowa Code sections 232.117(5) and

232.104(2)(b) allow the juvenile court to grant additional time if parental rights are

not terminated after the termination hearing. To do so, however, the court must

find “the need for removal . . . will no longer exist at the end of the additional six-

month period.” Iowa Code § 232.104(2)(b).

The only change the mother testified would occur if given more time was

that she would be able to provide clean drug tests. See id. (requiring the

enumeration of “the specific factors, conditions, or expected behavioral changes”

showing the need for removal will no longer exist at the end of the period). But the

mother couldn’t accomplish that in the more than twelve months since her children

were removed from her care, providing only one negative test result that entire

time. 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
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sobriety, there is little hope of success in parenting.”). Given her track record, we

cannot agree that giving her additional time would lead to a different result. See

id. (“[A] good prediction of the future conduct of a parent is to look at the past

conduct.”).

D. Guardianship

Lastly, the mother suggests “the court should have directed [the

department] to explore guardianship with the maternal grandparents.” See Iowa

Code § 232.117(5) (authorizing the court, following a termination hearing, to enter

an order in accordance with section 232.104 in lieu of terminating parental rights);

see also id. § 232.104(2)(d)(1) (allowing for transfer of “guardianship and custody

of the child to a suitable person”). No evidence was offered concerning whether a

guardianship was feasible, though the record discloses that the relationship

between the mother and her parents is somewhat strained. Regardless, “a

guardianship is not a legally preferable alternative to termination.” A.S., 906

N.W.2d at 477 (citation omitted). These children are young, and a guardianship

would not promote stability or provide permanency to these children’s lives. See

In re R.S.R., No. 10-1858, 2011 WL 441680, at *4 (Iowa Ct. App. Feb. 9, 2011)

(“So long as a parent’s rights remain intact, the parent can challenge the

guardianship and seek return of the child to the parent’s custody.”). Termination

of the mother’s parental rights will. See A.S., 906 N.W.2d at 478.

III. Conclusion

We affirm the termination of the mother’s parental rights.

AFFIRMED.