In the Interest of L.D., Minor Child ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1443
Filed January 21, 2021
IN THE INTEREST OF L.D.,
Minor Child,
M.W., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Lynn Poschner, District
Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Deborah L. Johnson of Deborah L. Johnson Law Office, P.C., Altoona, for
appellant mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Erin E. Romar of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor child.
Considered by Tabor, P.J., Ahlers, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
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SCOTT, Senior Judge.
A mother appeals the termination of her parental rights to her child, born in
2019, pursuant to Iowa Code section 232.116(1)(e), (g), and (h) (2020). 1 She
challenges the sufficiency of the evidence supporting the grounds for termination,
argues termination is contrary to the child’s best interests, and requests a six-
month extension to work toward reunification.
I. Background
The mother has had her parental rights terminated to three other children,
two in 2017 and one in 2019, due to the mother’s low mental functioning and
resulting inability to provide proper care for children. This child in interest was born
in August 2019, shortly after which the State filed a child-in-need-of-assistance
(CINA) petition given the mother’s continued deficiencies. The mother was
homeless at the time. The court entered an order for temporary removal upon the
mother’s consent. The child was ultimately placed in a foster home, where she
has remained throughout the proceedings. Following a hearing, the court
confirmed removal. The court entered a CINA adjudication in September.
Removal was continued following a dispositional hearing in November.
As a result of the mother’s failure to address her mental-health issues, the
State petitioned for termination of the mother’s parental rights in early February
2020. A termination hearing was scheduled to occur in March, but it was continued
to August due to the COVID-19 pandemic. In late February, the mother began
participating in mental-health therapy. She was generally inconsistent in
1 The parental rights of the child’s legal father and any putative father were also
terminated. No father appeals.
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participating in her therapy for the first month. The mother began participating
more consistently, attending twice weekly, after a stern conversation with her
therapist. The therapy has focused on the mother dealing with her past trauma,
developing parenting skills, accepting responsibility, handling stress, and
becoming financially independent. The mother continued to consistently
participate in therapy until the time of the termination hearing held over two days
in August and September.2
In her testimony at the termination hearing, the mother agreed she was
inconsistent in attending visits with the child. The record shows the mother only
utilized about half of her opportunities for visitation. And the mother never
progressed beyond fully-supervised visitation. While the mother had housing, she
agreed her residence had “some safety-related concerns.”
As noted, the court terminated the mother’s parental rights pursuant to Iowa
Code section 232.116(1)(e), (g), and (h). The mother appeals.
II. Standard of Review
Appellate review of orders terminating parental rights 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).
2 Some meetings were missed in August due to the mother’s therapist being
hospitalized with COVID-19.
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III. Analysis
A. Sufficiency of the Evidence
The mother challenges the sufficiency of the evidence supporting the
statutory grounds for termination. “[W]e 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). We choose to focus on Iowa Code
section 232.116(1)(h). As to that section, the mother only challenges the State’s
establishment of the final element—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 language “at the present time” to mean “at the time of
the termination hearing”).
Upon our de novo review of the record, we agree with the juvenile court that
the child could not be returned to the mother’s care at the time of the termination
hearing. While the mother responded to the State’s termination petition with finally
engaging in therapy aimed at resolving her mental-health issues, her participation
in the same for a few months was not enough to overcome the mother’s long
history of trauma in her life and resulting cognitive issues. The therapist testified
the child could only be returned to the mother’s care if accompanied by the ongoing
provision of extensive services. And the mother had yet to display her ability to
properly care for the child, as she never progressed beyond fully-supervised visits
as a result of her lack of attendance at visits. We find the evidence sufficient to
support termination under section 232.116(1)(h).
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B. Best Interests and Statutory Exception
The mother claims termination is contrary to the child’s best interests and
would be detrimental to the child given the closeness of the parent-child bond. 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 the child can be
returned to her care. While the mother began participating in mental-health
treatment, she inappropriately waited until the eve of termination to begin taking
any fruitful steps to address her mental-health issues, which is too late. See In re
C.B., 611 N.W.2d 489, 495 (Iowa 2000). “It is well-settled law that 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 . . . be able to provide
a stable home for the child.” In re A.B., 815 N.W.2d 764, 777 (Iowa 2012) (quoting
In re P.L., 778 N.W.2d 33, 39 (Iowa 2010)). 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))). We conclude termination is in the child’s best interests.
To the extent the mother requests the application of the statutory exception
to termination contained in Iowa Code section 232.116(3)(c), we conclude she
failed to meet her burden to show “that the termination would be detrimental to the
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child . . . due to the closeness of the parent-child relationship,” especially given the
child’s young age and removal from the mother for most of her short life. See In
re A.S., 906 N.W.2d 467, 476 (Iowa 2018) (noting parent bears burden to establish
an exception to termination).
C. Additional Time
The mother requests a six-month extension to work toward reunification. If,
following a termination hearing, the court does not terminate parental rights but
finds there is clear and convincing evidence that the child is a CINA, the court may
enter an order in accordance with section 232.104(2)(b). Iowa Code § 232.117(5).
Section 232.104(2)(b) affords the juvenile court the option to continue placement
of a child for an additional six months if the court finds “the need for removal . . .
will no longer exist at the end of the additional six-month period.”
The mother argues the child will suffer no additional harm if permanency is
delayed an additional six months. To support her argument, the mother cites our
decision In re K.M., where we granted an extension on the basis that a delay would
not result in additional harm to a child. No. 16-0795, 2016 WL 4379375, at *9
(Iowa Ct. App. Aug. 17, 2016). But there, we were able to “enumerate the specific
factors, conditions, or expected behavioral changes which comprise the basis for
the determination that the need for removal . . . will no longer exist at the end of
the additional six-month extension.” See id. at *8–9 (quoting Iowa Code
§ 232.104(2)(b)). We are unable to do so here, so we conclude an extension is
not warranted.
We affirm the termination of the mother’s parental rights.
AFFIRMED.