In the Interest of K.G., Minor Child ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1862
Filed December 19, 2018
IN THE INTEREST OF K.G.,
Minor Child,
V.G., Mother,
Appellant.
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Appeal from the Iowa District Court for Polk County, Colin J. Witt, District
Associate Judge.
The mother appeals the termination of her parental rights to her one-year-
old child. AFFIRMED.
Nancy A.S. Trotter, Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Karl Wolle of Juvenile Public Defender, Des Moines, guardian ad litem for
minor child.
Considered by Vogel, P.J., and Potterfield and Doyle, JJ.
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POTTERFIELD, Judge.
The mother appeals the termination of her parental rights to her one-year-
old child, K.G.1 The juvenile court terminated the mother’s parental rights pursuant
to Iowa Code section 232.116(1)(g) and (h) (2018). On appeal, she argues there
is not clear and convincing evidence to support the statutory grounds for
termination and termination is not in the child’s best interests because of the close
bond the mother and K.G. share.
We review termination proceedings de novo. In re A.B., 815 N.W.2d 764,
773 (Iowa 2012).
We begin by considering the statutory grounds. “When the juvenile court
terminates parental rights on more than one statutory ground, we may affirm the
juvenile court’s order on any ground we find supported by the record.” Id. at 774.
We consider the grounds of section 232.116(1)(h), which allows the court to
terminate parental rights if all of the following are met:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of
assistance pursuant to 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 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.
The mother only challenges the fourth element—whether K.G. could be returned
to her care at the time of the termination hearing. See In re D.W., 791 N.W.2d
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The father’s parental rights were also terminated. He does not appeal.
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703, 707 (Iowa 2010) (interpreting the term “at the present time” to mean “at the
time of the termination hearing”).
However, at the termination hearing in October 2018, the mother conceded
she was “not in a position to have [K.G.]” in her care. At the time, the mother was
living with the paternal grandmother in the grandmother’s one-bedroom apartment
in a retirement community. While the mother did not believe she was at imminent
risk of being forced to leave, the mother admitted the grandmother was not
technically supposed to allow the mother to stay with her. The mother did not have
employment. She tested positive for methamphetamine in April 2018 and had
since failed to show up in a timely manner to the random drug tests requested by
the social worker. The mother claimed she obtained a substance-abuse evaluation
after the positive test in April that did not recommend any treatment, but when the
social worker contacted the provider, they “said they had no evaluation or history
of [the mother] going there.” Based on this record, we cannot say K.G. could have
been returned to the mother’s care at the time of the termination hearing. See
Iowa Code § 232.116(1)(h)(4); see also In re M.S., 889 N.W.2d 675, 680 (Iowa Ct.
App. 2016) (“[A] child cannot be returned to the custody of the child’s parent under
section 232.102 if by doing so the child would be exposed to any harm amounting
to a new child in need of assistance adjudication.” (alteration in original) (citation
omitted)).
The mother combines her argument regarding the best interests of K.G.,
see Iowa Code § 232.116(2), and the permissive factors weighing against
termination, see id. § 232.116(3). She maintains termination of her parental rights
is not in K.G.’s best interests because of the strong bond they share. In
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considering K.G.’s best interests, 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.” Id. § 232.116(2). The mother has the burden to establish that a permissive
factor weighs against the termination of her parental rights. See In re A.S., 906
N.W.2d 467, 476 (Iowa 2018) (“[O]nce the State has proven a ground for
termination, the parent resisting termination bears the burden to establish an
exception to termination under Iowa Code section 232.116(3)[].”).
Other than one six-week period, K.G. has lived with her foster parents since
being discharged from the hospital following her birth in May 2017 through the time
of the termination hearing in October 2018. The foster parents have already
adopted K.G.’s sibling—one of the mother’s other children. The mother agreed
K.G. is safe with the foster parents, who are a pre-adoptive placement, and the
foster parents have hosted visits between their adopted child, K.G., and the
mother’s third child. They provide K.G. a safe, stable, and supportive home. And
while the mother has established that she is a capable parent during visits, nothing
in the record convinces us that the termination of her parental rights would be
detrimental to K.G. See In re D.W., 791 N.W.2d 703, 709 (Iowa 2010) (providing
that though the parent loves their child, “our consideration must center on whether
the child will be disadvantaged by termination, and whether the disadvantage
overcomes [the parent’s] inability to provide for [the child’s] developing needs”).
We affirm the termination of the mother’s parental rights to K.G.
AFFIRMED.