In the Interest of P.D., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 19-1824
Filed December 18, 2019

IN THE INTEREST OF P.D.,
Minor Child,

P.D., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Eric J.

Nelson, District Associate Judge.

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

Sara E. Benson of Benson Law, P.C., Council Bluffs, for appellant mother.

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

General, for appellee State.

Roberta J. Megel of State Public Defender Office, Council Bluffs, attorney

and guardian ad litem for minor child.

Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.
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MULLINS, Judge.

The mother and her child, born in 2015, came to the attention of the Iowa

Department of Human Services (DHS) in early October 2018, when the mother

tested positive for methamphetamine.1 She admitted to a history of

methamphetamine use and recent relapse. The mother agreed to have the child

placed with the maternal grandmother. The mother again tested positive for the

substance later in October. The juvenile court entered a formal order temporarily

removing the child from the mother’s care. The child was adjudicated to be in need

of assistance in January 2019.

The mother engaged in substance-abuse, mental-health, and psychiatric

treatment. But she continued to test positive for methamphetamine in the coming

months. As a result, it was recommended she participate in inpatient treatment;

the mother refused. While the mother’s drug-test results show she experienced

two short stints of sobriety during the proceedings, both were followed by relapse.

Although the mother was consistent in attending visitations, she did not progress

beyond fully-supervised visits. The State petitioned for termination in July. At the

time of the termination hearing in August 2019, the mother had a string of positive

drug-test results dating back to June. At the termination hearing, the mother

admitted to using methamphetamine off and on for nearly ten years. Her use was

the basis for termination of her rights to her other children. Despite her recent

positive drug tests, she denied she used since the inception of the proceedings.

The child has remained in the care of the maternal grandmother since January

1
The mother’s parental rights have also been terminated as to her two older
children. She gave birth to a fourth child during the proceedings.
3

2019, where the younger sibling is also placed. The grandmother intends to adopt

upon termination. The juvenile court ultimately terminated the mother’s parental

rights under Iowa Code section 232.116(1)(e), (h), and (l) (2019).2

The mother appeals. She challenges the sufficiency of the evidence

supporting the statutory grounds for termination cited by the juvenile court, argues

termination is not in the child’s best interests due to the parent-child bond, requests

the statutory exception to termination contained in Iowa Code section

232.116(3)(a) be applied and a guardianship be established in the maternal

grandmother in lieu of termination, and claims the State failed to make reasonable

efforts at reunification.

Our review is de novo. In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our

primary consideration is the best interests of the child, In re J.E., 723 N.W.2d 793,

798 (Iowa 2006), the defining elements of which are the child’s safety and need

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

“On appeal, we may affirm the juvenile court’s termination order on any

ground that we find supported by clear and convincing evidence.” In re D.W., 791

N.W.2d 703, 707 (Iowa 2010). As to termination under section 232.116(1)(h), the

mother only challenges the State’s establishment of the final element of that

provision—that the child could not be returned to her care at the time of the

termination hearing. See Iowa Code § 232.116(1)(h)(4) (requiring clear and

convincing evidence that the child cannot be returned to the custody of the child’s

parents at the present time); D.W., 791 N.W.2d at 707 (interpreting the statutory

2
The parental rights of any putative father were also terminated. No father
appeals.
4

language “at the present time” to mean “at the time of the termination hearing”). A

de novo review of the record discloses that returning the child to the mother’s care

at the present would expose the child to a risk of adjudicatory harm. See In re

R.R.K., 544 N.W.2d 274, 277 (Iowa Ct. App. 1995) (noting children cannot be

returned to their parents’ care if they would remain in need of assistance or would

be at risk of adjudicatory harm), overruled on other grounds by In re P.L., 778

N.W.2d 33, 39 (Iowa 2010). Given the mother’s continued use of

methamphetamine, the child would be at risk of adjudicatory harm. See Iowa Code

§ 232.2(6)(c)(2), (n). We conclude the state met its burden for termination under

section 232.116(1)(h).

We turn to the child’s best interests. The mother argues termination is

contrary to the best interests of the child, see Iowa Code § 232.116(2), due to the

closeness of the parent-child bond. See id. § 232.116(3)(c). We choose to

separately address the best-interests and statutory-exception issues. See In re

A.S., 906 N.W.2d 467, 472–73 (Iowa 2019) (discussing three-step termination

framework).

In determining whether termination is in the best interests of a 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).

The mother has simply not progressed to a point at which her child can be returned

to her care. She has been struggling with her addiction for nearly ten years. She

has chosen it over her children, which is evidenced by her continued use despite

having her rights terminated to two other children. “It is well-settled law that we
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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 . . . be able

to provide a stable home for the child.” In re A.B., 815 N.W.2d 764, 777 (Iowa

2012) (quoting P.L., 778 N.W.2d at 39). We conclude the mother has been given

ample time to get her affairs in order and this child’s best interests are best served

by providing permanency and stability now. See id. at 778 (“It is simply not in the

best interests of children to continue to keep them in temporary foster homes while

the natural parents get their lives together.” (quoting In re C.K., 558 N.W.2d 170,

175 (Iowa 1997))). The child is in a relative placement that is willing to adopt. The

child is integrated into this familial setting and is thriving. Continued stability and

permanency in this home are in this child’s best interests. See Iowa Code

§ 232.116(2)(b); cf. In re M.W., 876 N.W.2d 212, 224–25 (2016) (concluding

termination was in best interests of children where children were well-adjusted to

placement, the placement parents were “able to provide for their physical,

emotional, and financial needs,” and they were prepared to adopt the children).

As to the mother’s request for application of the statutory exception to

termination contained in section 232.116(3)(c), we first note the application of the

statutory exceptions to termination 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 exists between the mother and child, we conclude application

of the exception would be contrary to the child’s best interests, which is our

principal concern. J.E., 723 N.W.2d at 798.

The mother also suggests a guardianship should be established in lieu of

termination. “[A] guardianship is not a legally preferable alternative to termination.”
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A.S., 906 N.W.2d at 477 (quoting In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App.

2017)). Although section 232.104(2)(d) allows for the establishment of a

guardianship as a permanency option, section 232.104(3) requires “a judicial

determination that [such a] planned permanent living arrangement is the best

permanency plan for the child.” See B.T., 894 N.W.2d at 32–33. Determining the

best permanency plan for a child is a best-interests assessment. A guardianship,

rather than termination, would not promote stability or provide permanency to the

child’s life. 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[ren] to the parent’s custody.”).

Finally, the mother argues the State failed to make reasonable efforts at

reunification. She only argues the State “refused to expedite visitation to semi-

supervised and unsupervised visitation.” Upon our de novo review, given the

mother’s continued drug use, we find that decision was reasonable.

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

AFFIRMED.