In the Interest of I.S., C.W., H.W., S.W., and T.J., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 21-0043
Filed April 14, 2021

IN THE INTEREST OF I.S., C.W., H.W., S.W., and T.J.,
Minor Children,

T.J., Mother,
Appellant,

C.W., Father of C.W.,
Appellant,

STATE OF IOWA,
Appellant,

H.W., S.W., and T.J., Minor Children,
Appellants.
________________________________________________________________

Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic,

District Associate Judge.

Multiple appeals follow the termination of parental rights to five children.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH

DIRECTIONS.

Elizabeth A. Batey of Vickers Law Office, Greene, for appellant mother.

Becky Wilson of Elwood, O’Donohoe, Braun, White, LLP, Charles City, for

appellant father.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellant State.
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Mark Milder, Denver, attorney for appellants minor children.

Danielle M. Ellingson, Eggert, Erb, & Ellingson, P.L.C., Charles City,

guardian ad litem for appellants minor children.

Considered by May, P.J., and Greer and Schumacher, JJ.
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MAY, Presiding Judge.

Multiple appeals follow the termination of parental rights to five children:

I.S., C.W., H.W., S.W., and T.J.1 The mother appeals the termination of her

parental rights to all five children. C.W.’s father appeals the termination of his

parental rights to C.W.2 H.W., S.W., and T.J. appeal the termination of the

mother’s parental rights.3 The State also appeals the termination of the mother’s

parental rights as to H.W., S.W., and T.J.4 Conversely, the State requests we

affirm termination of parental rights to I.S. and C.W. We affirm in part, reverse in

part, and remand the case to the juvenile court with directions.

I. Background Facts and Proceedings

In August 2019, the family came to the attention of the Iowa Department of

Human Services (DHS) after the mother punched C.W. in the face. The mother

was intoxicated and believed C.W. had stolen $2 from her. She told C.W. to leave

the one-bedroom motel room where they were staying. When law enforcement

1 I.S. was born in 2013. C.W. was born in 2010. H.W. was born in 2006. S.W.
was born in 2005. And T.J. was born in 2003.
2 The parental rights for I.S., H.W., S.W., and T.J.’s fathers were also terminated.

But they do not appeal.
3 All five children were originally represented by an attorney who served as both

attorney and guardian ad litem. Just prior to the termination hearing, that attorney
withdrew, and the district court appointed a separate attorney to serve as the
attorney for the three older children and a new guardian ad litem for all five children.
A court appointed special advocate was also appointed for all five children.
4 The State filed petitions to terminate parental rights for all five children. At the

termination hearing, DHS approved of termination for I.S. and C.W. but was in
favor of a guardianship with grandmother for H.W., S.W., and T.J. It does not
appear DHS was represented by separate counsel. The guardian ad litem for all
five children approved of termination for I.S. and C.W. and either termination of
parental rights or an extension of time for H.W., S.W., and T.J. The guardian ad
litem did not believe a guardianship with the grandmother was an option for H.W.,
C.W., and T.J.
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officers arrived to ensure the safety of the other children, the mother denied that

C.W. was her child. The mother was uncooperative and would not allow DHS to

conduct a walk-through of the residence. I.S. and S.W. were in the mother’s care

at the time. H.W. and T.J. were residing with their maternal grandmother. The

grandmother allowed DHS to view her home and no safety concerns were noted.

So all five children were temporarily placed with the grandmother.

In late August, all five children were adjudicated as children in need of

assistance (CINA). I.S. and S.W. were placed with another relative. C.W. was

placed with his father. H.W. and T.J. continued to reside with the grandmother.

We review the children in turn, according to their placements.

A. The Youngest Child, I.S.

In September, I.S. began displaying alarming behaviors and physically

acting out. The mother failed to assist I.S. in her placement with a relative,

according to the plan set in place by DHS. As a result, I.S. was placed in family

foster care.

In November and December, I.S. had holiday visits with the mother, H.W.,

C.W., and T.J. while the grandmother supervised. Several concerns about the

visits were reported to DHS. Afterward, I.S.’s behaviors regressed and her foster

home could no longer care for her needs. I.S. was placed in a psychiatric medical

institution for children (PMIC).

Part of I.S.’s care at the PMIC included family therapy with the mother.

However, the mother failed to consistently attend I.S.’s therapy. The mother’s

absences had a negative effect on I.S. I.S. displayed aggression and inappropriate

actions with her peers. At the time of the termination hearing, I.S. remained in the
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PMIC and was not recommended for discharge. A foster home had not yet been

located for I.S.

B. The Second-Youngest Child, C.W.

In October 2019, C.W.’s father tested positive for cocaine, amphetamines,

methamphetamine, and THC. C.W. was placed with other relatives. In November,

the father again tested positive for methamphetamine and THC. Around this time,

the father moved to Minnesota to live with his girlfriend.

Shortly thereafter, C.W. was hospitalized over concerns that he would harm

himself. In December, C.W. was again hospitalized for suicidal and violent threats.

After C.W.’s discharge, DHS could not locate a suitable foster home for him. He

was placed in various shelters and one short-term family foster home. In

September 2020, C.W. was placed in a new family foster home. At the time of the

termination hearing, it was unknown whether C.W.’s placement was a permanency

option.

C.W.’s father moved back to Iowa in late February 2020. But he did not re-

engage with DHS until October. C.W. was hesitant to reunite with his father after

not seeing him for almost a year. C.W. and his father participated in phone calls

and a few supervised visits.

C. The older children, H.W., S.W., and T.J.

In November 2019, S.W. joined H.W. and T.J. with the grandmother. H.W.,

S.W., and T.J. have remained in their grandmother’s care for the duration of the

case. There have been concerns over the children’s progress in school. But the

record reflects this difficulty has been exacerbated by COVID-19 restrictions to in-

person learning. And all three have continued to work on getting caught up. H.W.,
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S.W., and T.J. have not exhibited any extreme behavioral concerns. All three

children have expressed a desire to return to their mother’s care, or in the

alternative, remain in their grandmother’s care under a guardianship.

II. Analysis

In December 2020, the mother’s parental rights were terminated to all five

children under Iowa Code section 232.116(1)(f) (2020). C.W.’s father’s parental

rights were also terminated under section 232.116(1)(f). Both parents appeal.

H.W., S.W., and T.J. appeal. And the State appeals on behalf of H.W., S.W., and

T.J. Due to their differences in age and circumstance, we address the two younger

children separate from the three older children.

A. Standard of Review

We review termination proceedings de novo. In re Z.P., 948 N.W.2d 518,

522 (Iowa 2020). “We will uphold an order terminating parental rights where there

is clear and convincing evidence of the statutory grounds for termination. 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.” In re T.S., 868

N.W.2d 425, 431 (Iowa Ct. App. 2015) (citation omitted).

We generally review evidentiary rulings for an abuse of discretion. State v.

Wilson, 878 N.W.2d 203, 210 (Iowa 2016); see also In re B.H., No. 17-1190, 2017

WL 4842627, at *3 (Iowa Ct. App. Oct. 25, 2017). “The standard of review for

hearsay, however, is for errors at law.” State v. Buelow, 951 N.W.2d 879, 884

(Iowa 2020).
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B. Three-Step Termination Analysis

We generally use a three-step analysis to review the termination of a

parent’s rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). We must determine:

(1) whether grounds for termination have been established, (2) whether

termination is in the children’s best interests, and (3) whether we should exercise

any of the permissive exceptions to termination. Id. at 472–73. We also address

any additional claims raised. In re K.M., No. 19-1637, 2020 WL 110408, at *1

(Iowa Ct. App. Jan. 9, 2020).

C. The Younger Children, I.S. and C.W.

We begin our analysis with an evidentiary issue. The mother argues the

juvenile court improperly admitted “portions of the [guardian ad litem] report that

contained hearsay statements.” “Iowa Code section 232.96(6) allows the

admission of a report, study, record, or other writing made by the DHS, a juvenile

court officer, or a peace officer, notwithstanding any objection to hearsay

statements contained within, if it is relevant and not unduly prejudicial.” In re N.N.,

692 N.W.2d 51, 54 (Iowa Ct. App. 2004). Iowa’s juvenile courts are generally

“allowed to make use of hearsay and other evidence that would normally be

excluded in our district courts.” In re A.M., 856 N.W.2d 365, 373 (Iowa 2014);

accord In re B.H., No. 18-1251, 2019 WL 478748, at *2 (Iowa Ct. App. Feb. 6,

2019) (collecting cases). In any event, because we have not relied on the report

in our de novo review, reversal is not required. See Erickson v. Blake, No. 15-

0251, 2016 WL 1130578, at *1 (Iowa Ct. App. Mar. 23, 2016) (“To the extent any

evidence was improperly considered by the district court, reversal is not required

given our de novo review of the record on appeal.”).
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Now we turn to the merits. The mother and C.W.’s father both claim the

State failed to satisfy the statutory grounds authorizing termination. The juvenile

court found grounds authorizing termination for both parents under

section 232.116(1)(f). Paragraph (f) authorizes termination when:

(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least twelve of the last eighteen months, or
for the last twelve consecutive months and any trial period at home
has been less than thirty days.
(4) There is 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.

Iowa Code § 232.116(1)(f). Both parents challenge the fourth element of

paragraph (f), whether I.S. and C.W. could be returned to the mother’s home and

whether C.W. could be returned to the father’s home. The fourth element is

satisfied when the State establishes a child cannot be safely returned to the parent

at the time of the termination hearing. In re T.W., No. 20-0142, 2020 WL 1881115,

at *1–2 (Iowa Ct. App. Apr. 15, 2020).

The State highlights the father’s struggle with maintaining sobriety and

personal strife that led to his disappearance from C.W.’s life for almost a year. The

father testified at the termination hearing to being drug-free for only two months.

While we acknowledge the father had personal difficulties during the life of this

case, he was not there for C.W. for almost a year of his life. He re-engaged with

DHS only a few months prior to the termination hearing. And by the time of the

termination hearing, he had not progressed past fully-supervised visits lasting only

two hours each.
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The State also highlights the mother’s inability to consistently demonstrate

that she can provide for her children, lengthy history of dishonesty, and failure to

identify concerns related to her relationship with her paramour. Throughout the

life of this case, the mother has struggled with alcohol abuse. This case started

when she was intoxicated with her paramour, struck C.W., and told C.W. to leave.

She has continued a relationship with her paramour despite numerous safety

concerns both from DHS and the children themselves. At the termination hearing,

the mother testified to ending the relationship with her paramour two months

previously. But she has repeatedly lied to DHS about their relationship and her

engagement in services. She has not consistently attended I.S.’s family therapy.

And by the time of the termination hearing, she had not progressed past fully-

supervised visits.

Like the juvenile court, we find I.S. and C.W. could not have been returned

to the mother’s care at the time of the termination hearing nor could C.W. have

been returned to his father’s care at the time of the termination hearing. See In re

C.S., No. 19-1126, 2019 WL 6358447, at *2 (Iowa Ct. App. Nov. 27, 2019)

(affirming termination where “the mother’s attitude toward the children’s injuries

gives us little confidence she would ensure their safety in the future”); see also In

re L.B., No. 18-1017, 2018 WL 3650370, at *1 (Iowa Ct. App. Aug. 1, 2018)

(collecting cases affirming termination of a parent’s parental rights when the parent

has a history of substance abuse). This step in our analysis is satisfied. See Z.P.,
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948 N.W.2d at 524 (affirming termination where the parent “was not prepared to

assume a parenting role at the time of trial”).5

Our next step centers on the children’s best interests. See Iowa Code

§ 232.116(2). We “give primary consideration to the child[ren]’s safety, to the best

placement for furthering the long-term nurturing and growth of the child[ren], and

to the physical, mental, and emotional condition and needs of the child[ren].” In re

P.L., 778 N.W.2d 33, 40 (Iowa 2010) (quoting Iowa Code § 232.116(2)). “It is well-

settled law that we cannot deprive a child of permanency after the State has proved

a ground for termination under section 232.116(1) by hoping someday a parent will

learn to be a parent and be able to provide a stable home for the child.” Id. at 41.

Like the juvenile court, we conclude termination is in the children’s best

interests. We do not question the parents’ affection for their respective children.

Even so, we cannot ignore the safety concerns presented to I.S. and C.W. if they

were to return to the mother’s care or if C.W. were to return to the father’s care.

I.S. and C.W. have both presented significant mental-health and behavioral

concerns that require consistent attention. Given their history, we are not confident

5 The father raises two additional concerns. First, the father claims “the State failed
to provide clear and convincing evidence that [C.W.] had been removed from the
physical custody of the father for at least twelve of the last eighteen months.” But
the record shows that C.W. was removed from the father’s care on October 3,
2019. And the termination hearing commenced on November 19, 2020. So we
find C.W. was removed from the father’s physical custody for at least twelve of the
last eighteen months. See Iowa Code § 232.116(1)(f)(3).
The father also claims “the State has failed to show by clear and convincing
evidence that returning the child to father would subject the child to adjudicatory
harm under Iowa Code § 232.2(6).” Under our case law, the State was only
required to prove C.W. could not be safely returned to the father at the time of the
termination hearing. See T.W., 2020 WL 1881115, at *2–3 (collecting cases). The
State met this burden.
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either parent will be able to adequately meet their respective children’s needs in

the foreseeable future. See In re C.W., 554 N.W.2d 279, 283 (Iowa Ct. App. 1996).

The second step in our analysis is complete.

We move to our third step, whether we should apply a section 232.116(3)

exception to termination. Section 232.116(3) exceptions are permissive, not

mandatory. In re A.R., 932 N.W.2d 588, 591 (Iowa Ct. App. 2019). And the burden

of establishing a section 232.116(3) exception rests with the parents. See A.S.,

906 N.W.2d at 476.

The mother claims that C.W. is over the age of ten and objects to

termination. From this, we believe she is relying on section 232.116(3)(b) to

prevent termination for C.W. It authorizes the court to forgo termination if “[t]he

child is over ten years of age and objects to the termination.” Iowa Code

§ 232.116(3)(b). At the time of the termination hearing, C.W. was ten years old.

But the mother does not point to evidence showing C.W. objected to termination

of her parental rights. So we decline to apply section 232.116(3)(b).

The mother emphasizes her bond with I.S. and C.W., and the father

emphasizes his bond with C.W. We believe they both rely on

section 232.116(3)(c). It authorizes the court to forgo termination if “[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.” Iowa Code

§ 232.116(3)(c).

The juvenile court found there was “not clear and convincing evidence that

termination would be detrimental to the child[ren].” See In re M.W., 876 N.W.2d

212, 219 (Iowa 2016). Based on our de novo review, we agree. We do not believe
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termination is detrimental. Rather, as explained, termination is in the children’s

best interests. See In re D.W., 791 N.W.2d 703, 709 (Iowa 2010) (“[O]ur

consideration must center on whether the child will be disadvantaged by

termination, and whether the disadvantage overcomes [the parent]’s inability to

provide for [the child]’s developing needs.”). So we decline to apply

section 232.116(3)(c) to either parent.

The mother also reiterates that I.S. was placed in a PMIC. From this, we

believe she is relying on section 232.116(3)(d) to prevent termination for I.S.

Paragraph (d) allows the court to deny termination if “it is necessary to place the

child in a hospital, facility, or institution for care and treatment and the continuation

of the parent-child relationship is not preventing a permanent family placement for

the child.” Iowa Code § 232.116(3)(d). It was necessary to place I.S. in a PMIC

after her foster care placement failed. At the time of the termination hearing, I.S.

was not recommended for release from the PMIC. While the mother’s relationship

with I.S. does not directly interfere with the placement process, the mother has

been inconsistent in attending I.S.’s therapy. The mother’s actions have

demonstrably disappointed and frustrated I.S. Terminating the mother’s parental

rights will allow DHS to seek an adoptive placement for I.S. upon her release.

Termination remains in I.S.’s best interest. So we decline to apply

section 232.116(3)(d). See, e.g., In re M.H., No. 14-0884, 2014 WL 4635462, at

*3 (Iowa Ct. App. Sept. 17, 2014) (affirming termination despite the child being

placed in a facility for treatment); In re J.R. II, No. 12-1239, 2012 WL 4903048, at

*3 (Iowa Ct. App. Oct. 17, 2012) (same).
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Finally, we address both parents’ arguments that they should be given an

additional six months to work toward reunification. The juvenile court may defer

termination for a period of six months if it is able to “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); see also Iowa Code § 232.117(5). The mother and C.W.’s father

have both struggled to engage with DHS. Due to a delay in the termination

hearing, the parents were essentially given an additional six months. We cannot

point to any specific and lasting change we anticipate will occur within the next six

months that would facilitate reunification and warrant granting additional time. We

agree with the juvenile court that the mother and C.W.’s father should not be given

additional time to work toward reunification.

For the foregoing reasons, we affirm the juvenile court’s order terminating

the mother’s parental rights to I.S. and C.W. and the father’s rights to C.W.

D. The Older Children, H.W., S.W., and T.J.

The mother, the State, H.W., S.W., and T.J. all appeal the termination of the

mother’s parental rights and the district court’s refusal to establish a guardianship

with the grandmother. The attorney for all three children conveyed “their request

that they be returned to the care, custody, and control of their mother” or “at a

minimum, be granted more time.”

Based on our analysis above regarding I.S. and C.W., we do not find H.W.,

S.W., and T.J. could be returned to the mother’s care at the time of the termination

hearing. See Z.P., 948 N.W.2d at 524 (affirming termination where the parent “was
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not prepared to assume a parenting role at the time of trial”). And we do not find

that an additional six months to work toward reunification would be appropriate.

See Iowa Code § 232.104(2)(b).

But the mother, the State, H.W., S.W., and T.J. all argue termination of the

mother’s parental rights is not in H.W., S.W., and T.J.’s best interests given their

ages and objection to termination. We believe they all rely on

section 232.116(3)(b) to prevent termination. Paragraph (b) allows the court to

forgo termination if “[t]he child is over ten years of age and objects to the

termination.” Iowa Code § 232.116(3)(b).

At the termination hearing, it was clear that H.W., S.W., and T.J. were all

over ten years of age and objected to the termination of their mother’s parental

rights. The children’s attorney conveyed H.W., S.W., and T.J.’s “desire to remain

in the current placement with their grandmother . . . pursuant to a guardianship” if

they could not be returned to their mother’s care. The DHS workers assigned to

this case testified at the termination hearing that they recommend a guardianship

for H.W., S.W., and T.J. with the grandmother. The grandmother had previously

expressed an interest to DHS in being a guardian for the three older children.

Section 232.104(2)(d) sets forth several permanency options for the

children’s placement, including transferring “guardianship and custody of the

child[ren] to a suitable person” or transferring “custody of the child[ren] to a suitable

person for the purpose of long-term care.” See id. § 232.104(2)(d)(1), (3).

However, the placements enumerated in paragraph (d) can only be ordered if the

court first finds that convincing evidence exists showing termination of the parent-

child relationship is not in the children’s best interests and that the children could
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not be returned to the children’s home even though “[s]ervices were offered to the

child[ren]’s family to correct the situation which led to the child[ren]’s removal.” Id.

§ 232.104(3)(a)–(c); but see In re B.T., 894 N.W.2d 29, 33 (Iowa Ct. App. 2017)

(“Generally, permanency orders are not preferred over the termination of parental

rights.”).

As noted, although services have been provided, the children could not be

returned to their home. At the same time, we do not find the three oldest children’s

best interests are served by termination of the mother’s parental rights. See In re

K.N., 625 N.W.2d 731, 733 (Iowa 2001) (“As in all juvenile proceedings, our

fundamental concern is the best interests of the child.”). This is not a case where

the children’s permanency is dependent on the mother’s parental rights being

terminated. The grandmother has cared for H.W., S.W., and T.J. for most of this

case and will continue to do so regardless of whether the mother’s parental rights

are terminated. Similarly, the children’s stability and long-term interests will not

change if the mother’s rights are not terminated and a guardianship is created

instead. H.W., S.W., and T.J. are fourteen, sixteen, and seventeen, respectively.

And they all wish to maintain a relationship with their mother. A guardianship with

the grandmother serves the children’s best interests and needs. See B.T., 894

N.W.2d at 34.

Accordingly, we reverse termination of the mother’s parental rights and

remand to the juvenile court to enter an order transferring guardianship and

custody of H.W., S.W., and T.J. to the grandmother pursuant to

section 232.104(2)(d)(1). The juvenile court should review this order annually as

mandated by section 232.104(8)(a), or more often if needed, to ascertain “whether
 16

the best interest[s] of the child[ren are] being served.” Alternatively, the juvenile

court may close the CINA cases and “appoint a guardian pursuant to chapter

232D” as described in section 232.104(8)(b). We do not retain jurisdiction.

III. Conclusion

We affirm termination of the mother’s parental rights to I.S. and C.W. We

also affirm termination of C.W.’s father’s parental rights to C.W. We reverse the

mother’s termination of parental rights to H.W., S.W., and T.J. And we remand to

the juvenile court to enter an order transferring guardianship and custody of H.W.,

S.W., and T.J. to the grandmother.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH

DIRECTIONS.