In the Interest of L.A. and A.A., Minor Children ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 23-0935
Filed August 9, 2023
IN THE INTEREST OF L.A. and A.A.,
Minor Children,
A.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Allamakee County,
Linnea M.N. Nicol, District Associate Judge.
A mother appeals the termination of her parental rights to two children.
AFFIRMED.
Nathan C. Moonen, Ossian, for appellant mother.
Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney
General, for appellee State.
Sandra Benzschawel of Meyer, Lorentzen & Nelson, Decorah, attorney and
guardian ad litem for minor children.
Considered by Bower, C.J., and Ahlers and Chicchelly, JJ.
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CHICCHELLY, Judge.
A mother appeals the termination of her parental rights to two children, L.A.
and A.A. She contends that the children’s best interests are not served by
termination and instead weigh in favor of a guardianship. She also requests an
exception based on the parent-child bond, and in the alternative, a six-month
extension to work towards reunification. Following our de novo review, we affirm
the order terminating the mother’s parental rights to both children.
I. Background Facts and Proceedings.
The Iowa Department of Health and Human Services became involved with
this family in October 2022 due to reported concerns about the mother’s alcohol
use while parenting the children.1 The mother was under the influence of alcohol
when law enforcement arrived at the home, and the children were placed into the
care of their maternal great-grandparents pursuant to a safety plan. Upon
investigation, the department learned the mother recently moved to Iowa from
South Carolina, where there was also an open case due to the mother’s history of
substance use and addiction. Prior to moving, the mother voluntarily surrendered
a third child, who is a full biological sibling between the ages of L.A. (born in 2018)
and A.A. (born in 2022), for adoption to a family in South Carolina.
In November, the mother made arrangements with the adoptive family to
meet in Iowa and sign paperwork for a temporary guardianship of L.A. and A.A.
The mother arrived to the meeting under the influence of alcohol. She continued
1 The children’s biological father was never successfully contacted.The children’s
legal father (by marriage to their mother) consented to termination of his parental
rights and does not appeal.
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to consume alcohol and became combative with the officer who was dispatched to
the scene, resulting in her arrest for public intoxication. L.A. and A.A. were formally
adjudicated as children in need of assistance (CINA) and removed from their
mother’s custody. They have remained in the care of their maternal great-
grandparents, who reside in Iowa, during the pendency of these proceedings.
In December, the mother started an inpatient treatment program but was
unsuccessfully discharged. She was asked to leave due to a relationship with a
new paramour who was in treatment for methamphetamine use. The pair started
living together, and the mother expressed that she would like him to adopt her
children. He is on the sex offender registry, and the mother later reported to the
department that he physically and sexually assaulted her. Caseworkers observed
physical signs of abuse and encouraged the mother to report it to law enforcement,
but she declined. The mother reported attempting to leave her paramour in March
2023, and her whereabouts have since been unknown. Her last in-person visit
with the children was on February 13. She was reportedly unable to handle the
supervision of both children simultaneously and often requested that only L.A. be
brought to visits.
In March, the mother filed a motion to waive reasonable efforts and proceed
to a permanency hearing. The mother wanted the court to institute a guardianship
with the adoptive family of L.A. and A.A.’s sibling in South Carolina. Counsel for
the mother advised that they discussed this path both when she was sober and
intoxicated and that the mother understood that ending reasonable efforts would
not guarantee the mother’s preferred outcome.
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The court held a permanency hearing in May. There were multiple warrants
out for the mother’s arrest, and she did not appear for the hearing or participate
telephonically. She called the adoptive mother of the children’s sibling about a
week prior to the hearing to express her frustration with the State’s petition to
terminate her rights rather than proceed with guardianship. Based on the mother’s
lack of consistent visitation and ongoing struggle with sobriety, the juvenile court
terminated her parental rights to both children under Iowa Code
sections 232.116(1)(b), (e), and (l) (2023).2 She filed a timely appeal.
II. Review.
We review termination proceedings de novo. See In re C.B., 611 N.W.2d
489, 492 (Iowa 2000). “We will uphold an order terminating parental rights where
there is clear and convincing evidence of the statutory grounds for termination.” In
re T.S., 868 N.W.2d 425, 431 (Iowa Ct. App. 2015). “Evidence is clear and
convincing when there is no serious or substantial doubt as to the correctness of
the conclusions of law drawn from the evidence.” Id. We give weight to the district
court’s fact findings, especially those about witness credibility, although they are
not binding. See Iowa R. App. P. 6.904(3)(g); C.B., 611 N.W.2d at 492.
III. Discussion.
We begin with the mother’s contention that termination is not in the
children’s best interests. We determine a child’s best interests using the
framework described in section 232.116(2). See In re A.H.B., 791 N.W.2d 687,
690–91 (Iowa 2010). That provision requires that we “give primary consideration
2 The mother does not challenge the grounds for termination.
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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 “defining elements” of the best-
interests analysis are the child’s safety and “need for a permanent home.” In re
H.S., 805 N.W.2d 737, 748 (Iowa 2011) (citation omitted).
The mother contends that guardianship with the adoptive family of the
children’s sibling would serve their best interests. We disagree. Guardianships
are not permanent. See Iowa Code § 633.675(1)(c) (stating that a guardianship
must terminate if the court determines it is no longer necessary). Nor are they
preferred over termination. In re A.S., 906 N.W.2d 467, 477 (Iowa 2018).
Considering the ages of the children, a guardianship could last more than a
decade. We will not deprive the children of permanency based on hope that the
mother will someday learn how to parent and be able to provide a stable home.
See In re M.W., 876 N.W.2d 212, 224 (Iowa 2016); In re C.D., 509 N.W.2d 509,
513 (Iowa Ct. App. 1993) (recognizing that “the permanency and stability needs of
the children must come first”).
We commend the mother’s efforts to seek assistance from her grandparents
and the adoptive family of her third child. However, we cannot ignore that she was
in no better position to provide the children with a safe and permanent home at the
time of the termination hearing than she had been at the time of the children’s
removal. See In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (“Insight for the
determination of the child’s long-range best interests can be gleaned from
evidence of the parent’s past performance for that performance may be indicative
of the quality of the future care that parent is capable of providing.”). Although a
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long-term guardianship may serve the mother’s best interests, it is not in the best
interests of L.A. and A.A. Termination is in the children’s best interests.
Next, the mother argues against termination under Iowa Code
section 232.116(3). That subsection lists circumstances under which the court
may opt not to terminate the parent-child relationship. Iowa Code § 232.116(3).
The decision to avoid termination under section 232.116(3) is “permissive, not
mandatory.” A.S., 906 N.W.2d at 475. The mother argues against termination
based on section 232.116(3)(c), which applies when clear and convincing
evidence shows termination will be “detrimental” to the children because of “the
closeness of the parent-child relationship.” To exercise this exception to
termination, there must be clear and convincing evidence showing “that, on
balance, [the closeness of] that bond makes termination more detrimental than
not.” In re W.M., 957 N.W.2d 305, 315 (Iowa 2021). The mother bears the burden
of proof on this issue. See A.S., 906 N.W.2d at 476.
We find the mother failed to preserve error on this claim because she never
argued the provision should be applied to prevent termination prior to this appeal.
Although failing to preserve error is sufficient reason to affirm, the juvenile court
addressed the inapplicability of the section 232.116(3) exceptions, and our de novo
review also shows the mother failed her burden on this issue. The record reflects
a bond between L.A. and her mother but does not show that termination will cause
the children more detriment than not. See In re A.B., 956 N.W.2d 162, 169 (Iowa
2021) (noting “the existence of a bond is not enough” to apply
section 232.116(3)(c)). Accordingly, we affirm the court’s decision not to apply this
exception to termination.
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Finally, the mother requests a six-month extension to work towards
reunification. Iowa Code section 232.104(2)(b) allows the court to continue the
children’s placement for six months if doing so will eliminate the need for removal.
Before continuing a placement, the court must “enumerate the specific factors,
conditions, or expected behavioral changes which comprise the basis for the
determination that the need for removal of the child from the child’s home will no
longer exist at the end of the additional six-month period.” Iowa Code
§ 232.104(2)(b).
Clear and convincing evidence shows that continuing the children’s
placement for six months would not eliminate the need for the children’s removal.
The same concerns that existed at the time of the CINA adjudication existed at the
termination hearing. Weighing the mother’s substance-abuse history,
nonparticipation in treatment, and lack of engagement with the children, the
outlook for near-term, successful parenting is poor. See In re L.L., 459 N.W.2d
489, 495 (Iowa 1990) (“Parenting cannot be turned off and on like a spigot. It must
be constant, responsible, and reliable.”). Because there is no basis for finding the
need for removal will no longer exist in six months, we deny the mother’s request
for additional time.
In sum, termination of the mother’s parental rights is in the children’s best
interests. We decline to establish a guardianship, apply an exception for the
parent-child bond, or permit an extension of time.
AFFIRMED.