IN THE COURT OF APPEALS OF IOWA
No. 16-1984
Filed February 22, 2017
IN THE INTEREST OF A.S. and W.S.,
Minor Children,
L.S., Mother,
Appellant.
______________________________________________________________
Appeal from the Iowa District Court for Polk County, Colin J. Witt, District
Associate Judge.
A mother appeals from the order terminating her parental rights.
AFFIRMED.
Alexandra M. Nelissen of Taylor Law Offices, Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd and Mary
A. Triick, Assistant Attorneys General, for appellee State.
Kimberly S. Ayotte of Youth Law Center, Des Moines, attorney and
guardian ad litem for minor children.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.
A mother appeals the juvenile court order terminating her parental rights.
She claims the evidence was insufficient to support termination, the termination
is not in the best interests of the children, and the juvenile court should have
exercised its discretion and applied an exception to termination. We find the
evidence was sufficient to terminate the mother’s parental rights, termination is in
the best interests of the children, and no exception should be applied to the
termination. Therefore, we affirm.
I. Background Facts and Proceedings
W.S. was born in 2005 and A.S. was born in 2003. The children came to
the attention of the Iowa Department of Human Services (DHS) on May 23, 2014,
after there were allegations A.S. was sexually abused by the mother’s boyfriend.
DHS found the allegations to be credible and filed a founded child abuse
assessment. Therapy was recommended for A.S. but the therapy was canceled
by the mother for several weeks. A Child in Need of Assistance (CINA) petition
was filed and the juvenile court became involved in August. The CINA petition
alleged the mother was interfering with A.S.’s therapy and continuing her
relationship with the abuser. The children were found to be in need of
assistance. The juvenile court required services, including therapy for the
children, but allowed the children to remain with the mother.
Originally, the mother stated she believed A.S. had been abused but did
not believe her boyfriend was the abuser. The juvenile court informed the mother
the case “was on a fine line” and required her to “fully engage in all services and
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cooperate with DHS.” On January 30, 2015 the guardian ad litem filed a motion
to modify placement. The juvenile court granted the motion as the mother had
failed to consistently attend therapy, failed to ensure the children attended
therapy, continued to see her child’s abuser, and failed to provide any plausible
excuse for the missed appointments. The children were placed in foster care.
At a February 9 hearing it was discovered the mother had not attended
therapy since November. The mother’s therapist had elected to terminate
treatment based on her lack of attendance. DHS referred the mother to another
therapist specializing in sex abuse treatment; however, the mother chose to use
a therapist unknown to DHS. The court further found the mother was not
cooperating with the parenting plan requirements concerning “therapeutic
engagements that were vital for the mother to be minimally adequate.” The
mother also continued to communicate with A.S.’s abuser. The placement of the
children in foster care was continued and the mother was granted three visits a
week with each child.
At a hearing on June 9, 2015, it was found there was a “continuing need
for structured accountability between the mother and A.S., an inadequate
engagement in therapy, and a lack of adequate housing.” The guardian ad litem
interviewed and visited the children’s grandparents but recommended the
children not be placed with them. At a hearing on January 14, 2016, the juvenile
court found progress had been made and granted the mother an additional six
months. On June 9, 2016 the court found the children had been removed for
eighteen months and one six-month extension had been granted. The children
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expressed a desire to return to the mother but significant issues still existed
which required continued out-of-home placement.
A termination hearing was held October 20. The mother was found to still
be inconsistent in attending therapy sessions and combined therapy sessions
with the children. She often did not attend her own sessions, did not provide any
explanation for the missed visits to her therapist, and lied about conflicts in order
to avoid attending group sessions with W.S. The mother was also alleged to be
in a new relationship with a registered sex offender. The mother’s current
housing was a two-bedroom trailer, which she shared with a roommate. At the
time of the hearing, she was waiting for a three-bedroom trailer to become
available as her current housing could not accommodate the children.
Additionally, the mother missed one-third of her visits in July and August 2016
and missed two-thirds of her visits in September. At the time of the termination
hearing, the mother had recently lost her job and was unemployed. The juvenile
court entered an order terminating the mother’s parental rights on November 4,
2016. The mother now appeals.
II. Standard of Review
The scope of review is de novo in termination cases. In re D.W., 791
N.W.2d 703, 706 (Iowa 2010). Clear and convincing evidence is needed to
establish the grounds for termination. In re J.E., 723 N.W.2d 793, 798 (Iowa
2006). Where there is clear and convincing evidence, there is no serious or
substantial doubt about the correctness of the conclusion drawn from the
evidence. In re D.D., 653 N.W.2d 359, 361 (Iowa 2002). We give weight to the
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juvenile court’s findings of fact, but are not bound by them. In re C.B., 611
N.W.2d 489, 492 (Iowa 2000). The highest concern in termination proceedings is
the best interests of the children. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990).
III. Sufficiency of the Evidence
The mother claims there was insufficient evidence to terminate her
parental rights. The juvenile court terminated her parental rights pursuant to
Iowa Code section 232.116(1)(d) and (f) (2016). “On appeal, we may affirm the
juvenile court’s termination order on any ground that we find supported by clear
and convincing evidence.” D.W., 791 N.W.2d at 707. In order to terminate under
section 232.116(1)(f), (1) the child must be four years old or older, (2) the child
must have been adjudicated in need of assistance, (3) the child must have been
removed from the physical custody of the parent for twelve of the last eighteen
months, and (4) the child cannot be returned at the time of termination.
The mother challenges only the fourth element. At the time of the
termination hearing, the mother was living in a two-bedroom trailer with a
roommate who was on probation. The mother had also recently been terminated
from her employment. While the mother had been making limited progress in
therapy, this progress had only occurred in the months leading up to the hearing.
Last minute efforts “are simply too late.” See C.B., 611 N.W.2d at 495. The
juvenile court also found the mother was in a relationship with a registered sex
offender. Finally, the mother continued to display inappropriate behaviors with
the children during visits and telephone calls. We find the children could not be
safely returned to the mother at the time of the termination hearing.
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IV. Best Interests of the Children
The mother claims the termination is not in the best interests of the
children. After finding a ground for termination exists we are to “consider the
factors under section 232.116(2). Section 232.116(2) requires us to 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.” In re P.L., 778 N.W.2d 33, 40 (Iowa 2010)
(internal quotation marks and citations omitted).
The mother claims the children should have been placed in a guardianship
with their grandparents. She claims the grandparents, living in a retirement
community in Florida, were appropriate guardians of the children and the
placement would not have necessitated a termination of her parental rights. The
guardian ad litem visited and interviewed the grandparents in Florida. The
guardian ad litem was informed the children would not be allowed to live at the
grandparents’ residence and, therefore, the guardian ad litem did not recommend
placement. We too find placement with the grandparents is not feasible and
agree with the guardian ad litem and juvenile court.
Additionally, the district court noted “this case has been open since August
5, 2014. The mother has been granted ample time to engage in the services
provided. The mother’s lack of consistent engagement can be used as an
indication of what the future holds for these children if returned to the mother’s
care.” We also agree with the juvenile court’s analysis that “these children are
still suffering emotionally when the mother does not tend to their needs above
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her own. . . . They require consistency, which the mother has not displayed
during the two years this case has been open. . . . These children have waited
long enough and deserve to not wait any longer.” The best indication of a
parent’s future performance is past performance. In re S.N., 500 N.W.2d 32, 34
(Iowa 1993). The mother’s past performance indicates she will be unable to
resume care. We find it is in the best interests of the children for parental rights
to be terminated.
V. Exceptions
We may decide not to terminate parental rights if any exception set out in
Iowa Code section 232.116(3) is shown. The mother claims her parental rights
should be not terminated because both the children object to the termination.
See Iowa Code § 232.116(3)(b). She also claims termination should be
precluded by the strong bond she has with the children. See Iowa Code
§ 232.116(3)(c). The decision to apply these exceptions to termination is not
mandatory but rather discretionary. See In re A.M., 843 N.W.2d 100, 113 (Iowa
2014).
The juvenile court found both the children had objected to the termination
“at times” and “the children have a bond with their mother and arguably
termination of the mother’s rights could be detrimental to the children.” It is
indeed understandable these children have expressed some desire to return to
their mother’s care and it is clear there is a bond between the children and their
mother. However, we agree with the juvenile court’s assessment that the mother
has communicated with the children only sporadically, displayed inappropriate
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behaviors during visits with the children, the children “are both acting out and
regressing after visits with their mother,” and that the mother still does not
understand the importance of therapy for both the children and herself. Our
overriding concern must be the long-term best interests of the children and we
elect not to apply an exception to termination.
AFFIRMED.