IN THE COURT OF APPEALS OF IOWA
No. 13-1993
Filed April 16, 2014
IN THE INTEREST OF K.S.,
Minor Child,
S.K., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Louise Jacobs,
District Associate Judge.
A mother appeals from the order terminating her parental rights.
AFFIRMED.
Britt Gagne of Gagne Law Office, Des Moines, for appellant mother.
Shane Michael, Des Moines, for father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Annette Taylor,
Assistant County Attorney, for appellee State.
M. Kathryn Miller, Des Moines, for minor child.
Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
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DANILSON, C.J.
A mother appeals the termination of her parental rights to her child, K.S.1
The mother has cooperated with the Iowa Department of Human Services (DHS)
since her release from prison and made efforts to stay in contact with the child
during her incarceration. Unfortunately, the mother sent K.S. to reside with her
paternal grandmother for six months before her probation was revoked and was
later incarcerated for a period of about one year. Her criminal conduct involved
neglect of a child whose care had been entrusted to her. The mother requested
additional time for reunification at the termination hearing, but “our legislature has
carefully constructed a time frame to provide a balance between the parent’s
efforts and the child’s long-term best interests.” In re D.W., 791 N.W.2d 703, 706
(Iowa 2010). Her past decisions and the time the child has endured in limbo
support affirming the district court’s order terminating the mother’s parental
rights.
I. Background Facts and Proceedings.
K.S. was born in November 2008. Shortly before her birth, the mother
was charged with and pled guilty to neglect of a dependent person after she “just
tossed” a child she was caring for onto a couch or chair. This caused serious
injury to the child. The mother received a deferred judgment and enrolled in the
youthful offender program.
In late 2010, the mother sent K.S. to live with K.S.’s paternal grandmother
in Virginia. K.S. resided with the grandmother until the grandmother sent K.S. to
live with her father in July 2011. The mother was living in a halfway house at that
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The parental rights of the father have also been terminated. He does not appeal.
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time, but she resided with K.S. and the father at his home when she had
furloughs. The mother also lived with the father and K.S. when she “went on the
run” from the halfway house. As a result, in September 2011, the mother was
arrested and placed in the Polk County jail. Eventually her deferred judgment
was revoked, and she was sentenced to ten years in prison.
K.S. remained in her father’s care until April 25, 2012. K.S. was removed
due to concerns that the father was both selling and using illegal substances in
the home. She was adjudicated a child in need of assistance (CINA) on May 4,
2012.
During her time in prison, the mother wrote letters to K.S. The mother
also testified that she participated in all of the available programs that she
believed would increase the chances K.S. would be returned to her care upon
her release.
The State filed a petition to terminate parental rights on April 11, 2013.
The original termination hearing was scheduled for May 2013, but that hearing
was continued because the parties agreed DHS had failed to distribute reports in
a timely manner. The hearing was moved to the next available court date,
September 20, 2013. In the meantime, the mother was released from prison into
a halfway house in May 2013. She moved into her own apartment in August
2013.
At the September termination hearing, the mother testified that she was
attending the Iowa School of Beauty. She also testified that she had no intention
of continuing any relationship with the father. The mother did not request to have
K.S. returned to her care at that time, but rather requested additional time to
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“create a better bond” with her daughter and to work on K.S.’s “trust issues.” The
mother also testified she would be willing to attend family therapy if she was
provided with more time.
The juvenile court filed an order terminating the mother’s parental rights
on December 3, 2013. In it, the court explained:
The significant number of different caregivers in such a short
life raises real concern that [K.S.] will develop reactive attachment
disorder. The child’s therapist provided an updated opinion as to
how [K.S.] was doing in regards to such a concern. The therapist
reported that if [K.S.] stayed in her current home that she will not
need therapy, “but if there is a change in placement, she will need
to continue in individual and family therapy to help adjusting to the
move and the loss of her current home and family.” The therapist
reported that [K.S.] is very attached to the foster parents and her
“siblings” (other foster family members).
The therapist recommended that [K.S.] be in a home that
can provide her with consistent support. While [the mother] asserts
she is much different now, it is still unclear whether [she] will be
able to maintain the minimum stability she has exhibited since she
returned to the community from prison. This most recent stability is
the result, in part, of her being under the supervision of her parole
officer.
When [the mother] was last in the community, she could not
comply with her probation requirements. [The mother] is doing
better now, but she has yet to demonstrate whether she can
maintain stability after she is released from parole. She is just
learning how to care for herself. As for [K.S.], the child’s therapist
states that “it will be very difficult for [K.S.] both emotionally and
mentally to have moved out of her current [foster family] home . . .”
While [the mother] admits to making mistakes such as tossing a
child on a couch (resulting in her criminal charges), or not following
the conditions of the Youthful Offender program and her probation,
she minimizes the effect such choices has had and will continue to
have on [K.S.]. When questioning about such effects, [the mother]
was unable to demonstrate an understanding of the difficulty for her
child that a change in custody would create.
(Citations to record omitted.) The court terminated the mother’s parental right
pursuant to Iowa Code sections 232.116(1)(b), (d), (e), (f), (i), and (l) (2013). The
mother appeals.
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II. Standard of Review.
Our review of termination decisions is de novo. In re P.L., 778 N.W.2d 33,
40 (Iowa 2010). We give weight to the juvenile court’s findings, especially
assessing witness credibility, although we are not bound by them. D.W., 791
N.W.2d at 706. An order terminating parental rights will be upheld if there is
clear and convincing evidence of grounds for termination under section 232.116.
Id. Evidence is “clear and convincing” when there are no serious or substantial
doubts as to the correctness of the conclusions of law drawn from the evidence.
Id.
III. Discussion.
Iowa Code chapter 232 termination of parental rights follows a three-step
analysis. P.L., 778 N.W.2d at 39. The court must first determine whether a
ground for termination under section 232.116(1) has been established. Id. If a
ground for termination has been established, the court must apply the best-
interest framework set out in section 232.116(2) to decide if the grounds for
termination should result in termination of parental rights. Id. Finally, if the
statutory best-interest framework supports termination of parental rights, the
court must consider if any of the statutory exceptions set out in section
232.116(3) weigh against the termination of parental rights. Id.
A. Grounds for Termination.
When the juvenile court terminates parental rights on more than one
statutory ground, we may affirm the order on any ground we find supported by
the record. D.W., 791 N.W.2d at 707. Iowa Code section 232.116(1)(f) provides
that termination may be ordered when there is clear and convincing evidence the
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child is four years of age or older, has been adjudicated a CINA, has been
removed from the physical custody of the parent for at least twelve of the last
eighteen months, and cannot be returned to the parent’s custody at the time of
the termination hearing.
Here, the mother does not contend that any of the elements for
termination under section 232.116(1)(f) are not met, but rather claims that if given
another six months for reunification, termination would not be necessary. We
note that the mother has cooperated with DHS since her release from prison and
has made some progress bonding with K.S. and demonstrating her ability to
parent the child; however, she did not request to have K.S. returned to her at the
time of the termination hearing.
“Ultimately, the issue is not parental culpability but whether the statutory
requirements have been met.” In re A.M., 843 N.W.2d 100, 111 n.9 (Iowa 2014).
K.S. has not been in her mother’s care since September 2011. The mother sent
K.S. to live with her paternal grandmother, had her probation revoked, and was
incarcerated for almost all of the proceedings. “In order to continue placement
for six months, the statute requires the court to make a determination the need
for removal will no longer exist at the end of the extension.” In re A.A.G., 708
N.W.2d 85, 92 (Iowa Ct. App. 2005). Here, we cannot conclude there is even a
strong likelihood that the child can be returned to the mother.
The child should not be required to wait in limbo in hope that the mother
can become a stable and reliable caretaker. As our supreme court has stated,
“[O]ur legislature has carefully constructed a time frame to provide a balance
between the parent’s efforts and the child’s long-term best interests.” D.W., 791
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N.W.2d at 707. Furthermore, the DHS caseworker, the child’s therapist, and the
guardian ad litem recommended termination. See A.M., 843 N.W.2d at 111.
As part of her request for additional time, the mother also argued DHS had
failed to provide her with timely services. Specifically, she claims DHS failed to
provide her with a parent partner. However, the mother admitted the DHS
worker contacted the parent partner program for her and found that no one was
able to travel to the halfway house in Marshalltown where the mother was staying
at the time. Furthermore, there is no indication the mother’s participation in the
service would have changed the outcome of the termination hearing. At the time
of the hearing, DHS did not have any complaints about the mother’s actions
during supervised visits with the child.
Here, DHS did provide the family with reasonable services, and there is
clear and convincing evidence the grounds for termination, pursuant to section
232.116(1)(f), have been met.
B. Best Interests of the Child.
Even if a statutory ground for termination is met, a decision to terminate
must still be in the best interests of a child after a review of section 232.116(2).
P.L., 778 N.W.2d at 37. In determining the best interests of the 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 conditions and needs of the child.” See Iowa Code § 232.116(2).
K.S. has not been in her mother’s full-time care since late 2010 when the
mother sent the child to live with the paternal grandmother. Although we
acknowledge the mother may have assisted in providing the child’s care while on
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furlough from the halfway house during the period of July 2011 until the mother
was incarcerated in September 2011, termination will enable K.S. to achieve
permanency. See A.M., 873 N.W.2d at 113 (citing In re J.E., 723 N.W.2d 793,
802 (Iowa 2006) (Cady, J., concurring specially) (noting the “defining elements in
a child’s best interest” are the child’s safety and her “need for a permanent
home”)). As recognized by the district court, the best interest of K.S. is for her to
remain with her foster family. They have consistently cared for her and provided
her with safety and stability. This is especially important because of the many
disruptions in care K.S. has already experienced at her young age. K.S. has
been integrated into her foster family and they are willing to adopt her if the
mother’s parental rights are terminated.
We agree with the juvenile court’s finding that it is in the child’s best
interests to terminate the mother’s parental rights.
C. Potential Grounds Not to Terminate
Iowa Code section 232.116(3) provides that “[t]he court need not
terminate the relationship between the parent and child” under certain
circumstances. A finding under subsection 3 allows the court not to terminate.
See P.L., 778 N.W.2d at 39. “The factors weighing against termination in section
232.116(3) are permissive, not mandatory, and the court may use its discretion,
based on the unique circumstances of each case and the best interests of the
child, whether to apply the factors in this section to save the parent-child
relationship. A.M., 873N.W.2d at 113
The mother did not argue any of the exceptions or factors against
termination apply in this case. Upon our de novo review, we conclude no
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exception or factor in section 232.116(3) applies to make termination
unnecessary.
IV. Conclusion.
There is clear and convincing evidence that grounds for termination exist
under section 232.116(1)(f), termination of the mother’s parental rights is in the
child’s best interests pursuant to section 232.116(2), and no consequential factor
weighing against termination in section 232.116(3) requires a different
conclusion. Accordingly, we affirm termination of the mother’s parental rights.
AFFIRMED.