IN THE COURT OF APPEALS OF IOWA
No. 20-1032
Filed November 4, 2020
IN THE INTEREST OF A.B. and I.B.,
Minor Children,
Y.B., Mother,
Appellant.
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Appeal from the Iowa District Court for Mitchell County, Karen Kaufman
Salic, District Associate Judge.
A mother appeals the termination of her parental rights to her children.
AFFIRMED.
William P. Baresel of Prichard Law Office, PC, Charles City, for appellant
mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Patrick J. Rourick, Saint Ansgar, attorney and guardian ad litem for minor
children.
Considered by Vaitheswaran, P.J., and Doyle and Ahlers, JJ.
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DOYLE, Judge.
A mother appeals the termination of her parental rights to her children.
The Iowa Department of Human Services (DHS) first became involved with
this family in 2016, when the State charged the mother with child endangerment
for leaving five-month-old I.B. alone in the home to go to a bar. The DHS’s most
recent involvement with the family began in December 2017 when the State
charged the father with committing felony domestic abuse assault against the
mother, who was pregnant with A.B. When domestic violence continued in the
home after A.B.’s birth, the juvenile court adjudicated both children to be in need
of assistance (CINA). The court initially placed the children in the father’s care but
removed the children six months later due to the parents’ ongoing interaction and
the domestic violence that resulted from it. When the mother failed to improve
significantly after nearly two years of DHS involvement, the State petitioned to
terminate parental rights.
The juvenile court terminated the mother’s parental rights to I.B. under Iowa
Code section 232.116(1)(f) (2019) and to A.B. under section 232.116(1)(h).
Although paragraphs (f) and (h) differ with regard to the age of the child and the
length of removal, the final requirement of each—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—is the same. See Iowa Code
§ 232.116(1)(f)(4), (h)(4). To satisfy this element, the State must present clear and
convincing evidence to show that the child would be exposed to adjudicatory harm
if returned to the parent’s care at the time of the termination hearing. See In re
D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the term “at the present time”
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to mean to mean “at the time of the termination hearing”); In re M.S., 889 N.W.2d
675, 680 (Iowa Ct. App. 2016) (noting a child cannot be returned to the custody of
the parent if doing so would expose the child to any harm amounting to a new
CINA adjudication).
The mother claims the children are not at risk of adjudicatory harm if
returned to her care because she has never abused or neglected them. She
complains that the court instead focused on “a series of small incidents over the
course of more than 20 months.” But the record shows that the mother’s ongoing
physical- and mental-health issues impair her ability to ensure the children’s safety.
The mother’s visitation remained supervised two years after the CINA adjudication,
and the evidence shows that the children would be at risk of harm without this
supervision. In its termination order, the juvenile court quoted from the DHS’s
termination report:
[The mother] has repeatedly demonstrated that while she can have
meaningful interactions with her children, she has difficulty meeting
their needs when she is parenting alone for short periods of time, and
this is when interactions are supervised. [The mother] has not been
able to progress beyond supervised interactions, and the children do
not have protective capacities of their own, so are fully reliant on their
adult caretakers to meet their needs. [The mother] believes that she
needs help to meet her own basic needs, which makes it unrealistic
to suggest she is capable at this time of meeting the needs of her
young sons. [The mother] may be making some progress, but will
likely need a substantial period of time devoted to her own mental
and physical health needs before she is able to focus energy outside
of herself.
The evidence shows that the children would be at risk of adjudicatory harm if
returned to the mother’s care.
The mother also disputes that termination is in the children’s best interests.
See Iowa Code § 232.116(2); D.W., 791 N.W.2d at 706-07 (requiring that the court
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“apply the best-interest framework set out in section 232.116(2) to decide if the
grounds for termination should result in a termination of parental rights”). In
determining best interests, our primary considerations are “the child’s safety,” “the
best placement for furthering the long-term nurturing and growth of the child,” and
“the physical, mental, and emotional condition and needs of the child.” In re P.L.,
778 N.W.2d 33, 37 (Iowa 2010) (quoting Iowa Code § 232.116(2)). The “defining
elements” we consider in making this determination 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 is unable to provide the safety and permanency needed. As
we have already determined, the children are at risk of harm if returned to the
mother’s care. And the record shows the mother is unable to provide a stable and
permanent home. The mother did not work in the two years following the CINA
adjudication began and, as a result of her limited financial means, frequently lost
housing. Concerns persist regarding the mother’s ability to provide the children
with a stable and consistent routine and discipline. As the juvenile court noted, the
mother undoubtedly loves the children. But “basic safety and supervision
concerns” persist some thirty-two months after the DHS first began providing
services such that her visits with the children require supervision. When we
compare the length of time the mother has been given to gain insight into these
concerns and the skills to correct them with the limited improvement she has made,
we agree that termination is in the children’s best interests.
Finally, the mother seeks to avoid termination under Iowa Code section
232.116(3), which provides that the court “need not terminate the relationship
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between the parent and child” under certain circumstances. Application of section
232.116(3) is permissive rather than mandatory, and it depends on the facts of
each case and the children’s best interests. See In re A.S., 906 N.W.2d 467, 475
(Iowa 2018). The mother bears the burden of establishing an exception to
termination. See id. at 476.
The mother asks us not to terminate parental rights because the children
are in the care of a relative. But the children are not in the legal custody of a
relative, as is required under section 232.116(3)(a). She also claims that
termination would be detrimental to the children. See Iowa Code § 232.116(3)(c)
(providing that the court need not terminate parental rights if “clear and convincing
evidence” shows “termination would be detrimental to the child at the time due to
the closeness of the parent-child relationship”). The record does not support such
a finding. As the juvenile court noted, any sadness the termination may cause the
children does not outweigh the long-term hardship and neglect they would likely
suffer in the mother’s care. Termination is in the children’s best interests.
AFFIRMED.
Ahlers, J., concurs; Vaitheswaran, P.J., dissents.
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VAITHESWARAN, Judge (dissenting).
I respectfully dissent. The department of human services intervened in
January 2018, when the father assaulted the mother in front of one of the children.
The mother was pregnant with their second child. The father continued to
physically and mentally abuse the mother over the ensuing two years.
The department reported that the father “punched [the mother] in the butt
causing her back injury,” which led to having the children exchanged from one
parent to the other in public places. Later the same year, the department reported
that the father asked the mother to leave the home and, when she did not, he
“forc[ed] her to leave by grabbing her and pulling her out of the home.” The mother
“was observed to have bruising on her jawline.” A year later, the department
reported that the mother recorded the father “hollering at her in a manner that was
completely inappropriate.” Following that incident, the mother committed to
divorcing her husband.
At the time of the termination hearing, the mother (1) had her own apartment
and had spoken to the landlord about upgrading to a two- or three-bedroom
apartment if the children were returned to her care; (2) had secured employment
and was receiving job training; (3) had no alcohol or drug dependency issues;
(4) testified that the State dismissed a child-endangerment charge; (5) testified to
an improvement in a yet-to-be diagnosed condition involving pain in her bones that
previously limited her ability to interact with the children; (6) had scheduled an
appointment for an assessment of her physical condition and testified to seeing a
chiropractor several times; and (7) was meeting with a counselor once a week and
taking medication to treat depression. The State did not dispute these assertions.
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A domestic abuse program supervisor who had worked with the mother for
several years reported she had “no concerns about [the mother’s] mental health,
ability to get around physically and care for herself[,] and her children or her having
any desire to rekindle a relationship with the” father.
As for the department’s concerns about the mother’s supervision of the
children, the service provider who supervised visits reported that the mother
heeded her advice to take both children to the bathroom when one needed to go,
prohibit the children from playing with toys that presented a choking hazard, and
hold the children’s hands when outside. The service provider also reported that
the mother had “good interactions with the kids.” And, shortly after the termination
petition was filed, the service provider reported “no concerns of physical abuse,
emotional abuse, sexual abuse, or neglect toward” the children. Finally, in the
reporting period preceding the termination hearing, the service provider reported
the mother was having supervised visits with the children in her home, which was
“furnished appropriately and was clean.”
Unfortunately, the COVID-19 pandemic prevented the mother from
demonstrating her independent parenting skills on a sustained basis, with many
visits being held by video. Because the mother made marked improvements in
her compliance with department expectations notwithstanding the pandemic, I
would conclude termination was not in the children’s best interests and I would
reverse the termination decision and remand for further proceedings.