In the Interest of A.M., L.M., T.M., and K.M., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 20-1685
Filed March 3, 2021

IN THE INTEREST OF A.M., L.M., T.M., and K.M.,
Minor Children,

M.G., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Christopher Kemp,

District Associate Judge.

A mother appeals the termination of her parental rights to four children.

AFFIRMED.

Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant

mother.

Thomas J. Miller, Attorney General, and Tabitha J. Gardner, Assistant

Attorney General, for appellee State.

Charles Fuson of Youth Law Center, Des Moines, attorney and guardian ad

litem for minor children.

Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
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AHLERS, Judge.

A mother appeals the termination of her parental rights to her four children,

born in 2007, 2016, 2018, and 2019. The juvenile court terminated the mother’s

parental rights pursuant to Iowa Code section 232.116(1)(f) (2020) as to the two

oldest children and section 232.116(1)(h) as to the two youngest children. In

introduction, she argues the juvenile court erred

in not granting additional time for reunification when [she] was
actively addressing her substance abuse issues through inpatient
treatment; the children were bonded to [her] and wanted to return to
her care; one of the children was over age 10 and objected to
termination; the children were placed with maternal relatives; and the
father’s rights were not terminated.

Interpreting the mother’s ensuing arguments is a somewhat nebulous task, but we

read her arguments to suggest that the court should have either applied one of the

permissive exceptions to termination contained in section 232.116(3)(a) through

(c), established a guardianship in the maternal grandparents in lieu of termination,

transferred sole custody to the father followed by the entry of a bridge order and

closure of the child-welfare proceedings, or allowed her additional time to work

toward reunification.1

I. Background

This thirty-two-year-old mother began using illegal substances at the age of

sixteen. The family came to the attention of the Iowa Department of Human

Services (DHS) in April 2018, when the parents’ third child was born and tested

1 The mother does not specifically argue the State failed to meet its burden to
establish the statutory grounds for termination or claim that termination is contrary
to the children’s best interests, so we need not address the first two steps of the
three-step termination framework. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).
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positive for THC and methamphetamine.2 The parents admitted using marijuana

almost daily during the pregnancy but denied methamphetamine use. The State

sought and obtained an order for temporary removal, and the children were placed

in the temporary legal custody of the maternal grandparents. The parents

stipulated to continued removal at a subsequent removal hearing. The children

were adjudicated as children in need of assistance (CINA) in June.

In July, the mother tested negative for all illegal substances. Thereafter, the

mother did not display any behavioral indicators of substance abuse for a number

of months. In December, given the parents’ participation in treatment and

demonstration of sobriety, DHS recommended the children be returned to the

parents’ care. The court ordered the children be returned to the parents’ legal

custody in its ensuing dispositional-review order. Then, in March 2019, the mother

gave birth to the youngest child. At the time of the child’s birth, the mother admitted

to using marijuana three times per day during the pregnancy. The mother and

child tested positive for amphetamines, and the child tested positive for

methamphetamine. The State moved for modification of placement as to the older

three children, and the court returned custody of the children to the maternal

grandparents. The State also sought and obtained an order for temporary removal

of the youngest child, which was followed by a petition and ensuing order for CINA

adjudication as to that child.

2The parents’ second child also tested positive for THC at birth in 2016. During
an ensuing assessment, it was learned the mother previously tested positive for
methamphetamine during a prenatal appointment.
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Thereafter, the mother continued to use illegal substances, but she denied

the same and largely avoided detection by the father and DHS. She also failed to

meaningfully participate in substance-abuse treatment. As a result of continuing

substance-abuse concerns, the State instituted termination proceedings as to the

youngest three children in October 2019 and as to the oldest child in March 2020.

The matter proceeded to trial over two days in October 2020. 3 At the time

of the termination hearing, the mother was about five months pregnant and had

been residing in an inpatient-treatment facility for roughly one month. She testified

her last use of drugs was just before she entered treatment. She admitted she

entered inpatient treatment in part because it was a condition of her probation

resulting from drug-possession charges and her probation officer advised her she

would go to jail if she did not complete inpatient treatment. Our de novo review of

the record discloses the mother’s placement in inpatient treatment was not

voluntary. The DHS worker testified he was advised by the mother’s counselor

that the mother would need to be in inpatient treatment for six months. However,

the mother had reported to her counselor her desire to leave inpatient treatment

shortly after the termination hearing. While the mother testified she was willing to

stay in treatment, the counselor reported staff recommended the mother stay in

inpatient treatment but the mother “verbalized that she is ready to leave and that

there is little that can be done to keep her here.”

At the termination hearing, the DHS worker opined the establishment of a

guardianship would be contrary to the children’s need for permanency and their

3 The hearing was originally scheduled for March but was continued multiple times,
largely because of the COVID-19 pandemic.
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best interests. He was also against placing the children in the father’s sole legal

custody due to the father’s inability to set boundaries with the mother, his

continuous relationship with the mother despite her drug use and resulting

continued need for the children’s removal, and his lack of history in serving as the

primary caretaker of the children.

In its termination ruling, the juvenile court highlighted the mother’s

continuous substance abuse over five years and four pregnancies and lack of

meaningful insight about how her substance abuse affects her children. The court

also homed in on the father’s lack of protective capacity and the fact he puts his

relationship with the mother over the children. The court concluded the children

could not be returned to the mother’s care. As to the father, the court concluded

he “should be given the opportunity to parent these children as a sole caretaker

before his rights are irreversibly terminated.” The court looked to the mother’s past

performance and children’s need for permanency in determining termination of the

mother’s parental rights is in the children’s best interests. The court declined to

apply a permissive exception to termination. The court did not specifically address

the potential for establishing a guardianship in lieu of termination or transferring

guardianship and sole custody to the father followed by the entry of a bridge order

and closure of the child-welfare proceedings. The mother appeals.

II. Standard of Review

Our review is de novo. In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our

primary consideration is the best interests of the children, In re J.E., 723 N.W.2d

793, 798 (Iowa 2006), the defining elements of which are the children’s safety and

need for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).
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III. Analysis

As noted, we interpret the mother’s arguments to suggest that the court

should have either applied one of the permissive exceptions to termination

contained in section 232.116(3)(a) through (c), established a guardianship in the

maternal grandparents in lieu of termination, transferred sole custody to the father

followed by the entry of a bridge order and closure of the child-welfare

proceedings, or allowed her additional time to work toward reunification.

A. Permissive Exceptions

Iowa Code section 232.116(3) allows the court to decline to terminate

parental rights under certain circumstances. We first note the application of the

statutory exceptions to termination is “permissive, not mandatory.” In re M.W., 876

N.W.2d 212, 225 (Iowa 2016) (quoting In re A.M., 843 N.W.2d 100, 113 (Iowa

2014)). Iowa Code section 232.116(1)(a) allows the court to forego termination

when “[a] relative has legal custody of the child.” Upon our de novo review, we

find applicable the principle that “[a]n appropriate determination to terminate a

parent child relationship is not to be countermanded by the ability and willingness

of a family member to take the child.” In re C.K., 558 N.W.2d 170, 174 (Iowa 1997).

The children have long been in the care and custody of the maternal grandparents,

during which the mother has continued to use illicit substances. If this dynamic

remains intact, the children will remain in the care of the grandparents, but the

mother’s track record shows she will also continue to use illegal drugs, the need

for removal from her care will continue, and the children’s permanency status will

remain in limbo. We decline to apply this exception to termination.
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Section 232.116(3)(b) allows the court to not terminate parental rights when

“[t]he child is over ten years of age and objects to termination.” The oldest child is

over ten years of age. While there was some evidence that the children wish to

be in their mother’s care, there was no specific evidence that the oldest child

objects to termination. Even if the child did object and given that “[p]references of

minor children while not controlling are relevant and cannot be ignored,” “[t]he best

interests of a child is not always what ‘the child wants.’” In re A.R., 932 N.W.2d

588, 592 (Iowa Ct. App. 2019) (citation omitted). We do consider a number of

factors when weighing a child’s preference, including (1) age and education level,

(2) strength of preference, (3) intellectual and emotional make-up, (4) relationship

with family members, (5) rationale for the decision, (6) advisability of honoring the

child’s desire, and (7) recognition that the court is not aware of all factors

influencing the child. Id. Upon our de novo review of the record, we conclude the

mother failed to meet her burden to show consideration of these factors weighs in

favor of applying the exception. See In re A.S., 906 N.W.2d 467, 476 (Iowa 2018)

(noting parent bears burden to establish an exception to termination). The mother

presented no evidence on these factors, and she does not address their weight on

appeal. We decline to apply this exception.

Iowa Code section 232.116(3)(c) allows the juvenile court to forego

termination when “[t]here is clear and convincing evidence that the termination

would be detrimental to the child at the time due to the closeness of the parent-

child relationship.” We certainly acknowledge the children (at least the oldest two)

are bonded to the mother, and we recognize that the children may suffer negative

consequences as a result of termination. The question is “whether the child[ren]
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will be disadvantaged by termination, and whether the disadvantage overcomes

[the mother’s] inability to provide for [their] developing needs.” In re D.W., 791

N.W.2d 703, 709 (Iowa 2010). While we agree termination will pose

disadvantages, we are unable to conclude severance of the parent-child bond will

be detrimental to the children. We also decline to apply this exception.

B. Guardianship

The mother also suggests establishment of a guardianship in the maternal

grandparents in lieu of termination is appropriate. See Iowa Code § 232.117(5)

(authorizing the court, following a termination hearing, to enter an order in

accordance with section 232.104 in lieu of terminating parental rights); see also id.

§ 232.104(2)(d)(1) (allowing for transferring of “guardianship and custody of the

child to a suitable person”). However, the juvenile court did not rule on any request

for the establishment of a guardianship in lieu of termination. Rather than raise

the complaint for the first time on appeal, the proper procedure to preserve error

was to file a motion raising the court’s alleged oversight prior to appealing. See

Lamasters v. State, 821 N.W.2d 856, 863 (Iowa 2012). In any event, on the merits,

we would begin with the principle that “a guardianship is not a legally preferable

alternative to termination.” A.S., 906 N.W.2d at 477 (quoting In re B.T., 894

N.W.2d 29, 32 (Iowa Ct. App. 2017)). Although section 232.104(2)(d)(1) allows for

the establishment of a guardianship as a permanency option, such an option can

only be ordered if the court first finds that termination of the parent’s rights is not

in the children’s best interests. See Iowa Code § 232.117(5) (permitting the option

of entering a permanency order pursuant to section 232.104 if the court does not

terminate parental rights); see also id. § 232.104(4) (setting forth the requirements
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needed before a permanency order pursuant to section 232.104(2)(d) can be

ordered); see also B.T., 894 N.W.2d at 32–33. Determining the best permanency

plan for children is a best-interests assessment. A guardianship, rather than

termination, would not promote stability or provide permanency to the children and

would be contrary to their best interests. See In re R.S.R., No. 10-1858, 2011 WL

441680, at *4 (Iowa Ct. App. Feb. 9, 2011) (“So long as a parent’s rights remain

intact, the parent can challenge the guardianship and seek return of the child to

the parent’s custody.”).

C. Transfer of Sole Custody

Next, the mother appears to argue the juvenile court should have

transferred sole custody of the children to the father in lieu of termination.

However, transfer of custody to the other parent is one of the permanency options

set forth in section 232.104(2)(d), so it has the same statutory prerequisites as the

guardianship option. In other words, when the request for such transfer is made

as part of a termination proceeding, there must first be a determination not to

terminate rights, which can then spur a permanency analysis under

section 232.104. Iowa Code § 232.117(5). As part of the permanency analysis,

before the permanency options in section 232.104(2)(d) can be considered, the

court must first determine termination of parental rights is not in the children’s best

interests, services were offered to correct the situation that led to removal, and the

children cannot be returned home. Id. § 232.104(4). Only then can the

permanency options in section 232.104(2)(d) be considered. Id. Upon our de novo

review, we are unable to conclude that termination should not have been granted

or transfer of custody to the father was the best permanency option. The father
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had yet to demonstrate he could individually care for the children and set up

appropriate boundaries to protect the children from the mother’s ongoing

substance abuse outside of a controlled setting. We reject the mother’s request

for implementation of this permanency option.

D. Additional Time

To the extent the mother requests additional time to work toward

reunification, we deny her request. If, following a termination hearing, the court

does not terminate parental rights but finds there is clear and convincing evidence

that the children are in need of assistance, the court may enter an order in

accordance with section 232.104(2)(b). Id. § 232.117(5). Section 232.104(2)(b)

affords the juvenile court the option to continue placement of children 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.” While the mother began inpatient

treatment shortly before the termination hearing, given her track record, she has a

long way to go before these children can be returned to her care. She has a long

history of use of methamphetamine and other drugs that has been fraught with

relapse, dishonesty, and successful evasion of detection. The mother would need

to spend at least another four or five months in treatment and then demonstrate

her ability to maintain sobriety in the community for an extended period of time

before the children could be returned to her care, which we conclude would

collectively take longer than six months. We are unable to conclude “the need for

removal . . . will no longer exist at the end of the additional six-month period,” and

we therefore affirm the juvenile court’s denial of the mother’s request for an

extension. Id. § 232.104(2)(b).
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IV. Conclusion

We affirm the termination of the mother’s parental rights.

AFFIRMED.