IN THE COURT OF APPEALS OF IOWA
No. 21-1484
Filed January 12, 2022
IN THE INTEREST OF X.H., T.H., and L.H.,
Minor Children,
H.S., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
The mother appeals the termination of her parental rights to three of her
children. AFFIRMED.
Karen A. Taylor, Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Nicole Garbis Nolan of Youth Law Center, Des Moines, attorney and
guardian ad litem for minor children.
Considered by Mullins, P.J., Ahlers, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
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POTTERFIELD, Senior Judge.
The mother appeals the termination of her parental rights to three of her
children,1 born in 2013, 2014, and 2017.2 The juvenile court terminated her
parental rights as to all three children under Iowa Code section 232.116(1)(g) and
(f) (2021). Here, the mother argues the State failed to prove the children could not
be returned to her care at the time of the termination hearing, the loss of her rights
is not in the children’s best interests, statutory factors weigh against terminating
her parental rights, and the juvenile court should have established a guardianship
with the paternal grandmother instead of terminating her rights. Our review is de
novo. In re W.M., 957 N.W.2d 305, 312 (Iowa 2021).
“When the juvenile court orders termination of parental rights on more than
one statutory ground, we need only find grounds to terminate on one of the
sections to affirm.” In re T.S., 868 N.W.2d 425, 435 (Iowa Ct. App. 2015). We
consider termination under paragraph (f).3 The mother only challenges the fourth
1 The mother was pregnant with a fourth child at the time of the termination hearing,
due to be born in October 2021. The father of the three children at issue here is
not the father of the fourth child.
2 The father’s parental rights were terminated as to the oldest child a number of
years ago—before the youngest two were born. His rights to the youngest two
were terminated along with the mother’s. He does not appeal.
3 The juvenile court also terminated under paragraph (g). Section 232.116(1)(g)
allows for termination when:
(1) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(2) The court has terminated parental rights pursuant to
section 232.117 with respect to another child who is a member of the
same family or a court of competent jurisdiction in another state has
entered an order involuntarily terminating parental rights with respect
to another child who is a member of the same family.
(3) There is clear and convincing evidence that the parent
continues to lack the ability or willingness to respond to services
which would correct the situation.
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element—whether the State proved the children could not be returned to her care
at the time of the termination hearing. See Iowa Code § 232.116(1)(f)(4); see also
In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting “at the present time” to
mean “at the time of the termination hearing”).
At the termination trial in June and July 2021, the mother admitted she used
methamphetamine off and on for a period of approximately twenty years and
agreed she cannot safely parent when she is actively using the drug. The fighting
issue was whether the mother continues to use methamphetamine. She admitted
she was using multiple times each day at the time of the children’s removal—in
October 2019—and that she used a couple times between November 2019 and
when she entered residential treatment in January 2020. But even after leaving
treatment in March 2020, the mother’s sweat patches continued to test positive for
methamphetamine on a regular basis. She tested positive for methamphetamine
in June and then again in September. After being asked to drug test in early
February 2021, the mother admitted to using methamphetamine. And she tested
(4) There is clear and convincing evidence that an additional
period of rehabilitation would not correct the situation.
The mother has not previously lost her parental rights to a child—only the father
has. Based on this fact, in its written closing argument, the State “concede[d] it
did not meet its burden in regards to the mother under Iowa Code [section]
232.116(1)(g).” The State reiterates that position in its response on appeal.
Without the State pursuing termination under paragraph (g), we question the
juvenile court’s decision to terminate the mother’s rights under that ground. In re
M.W., 889 N.W.2d 675, 681 (Iowa Ct. App. 2016) (“The legislature has enacted a
comprehensive scheme specifying the exclusive grounds upon which the State
can seek to terminate a parent’s rights.” (emphasis added)); see also In re A.S.,
906 N.W.2d 467, 476 (Iowa 2018) (“The burden remains on the State to prove the
grounds for termination.”). Cf. In re R.T., No. 17-1036, 2017 WL 4050995, at *2
n.5 (Iowa Ct. App. Sept. 13, 2017) (declining to terminate parental rights on
alternative grounds because “[t]he State [did] not ask us to affirm on these
grounds”).
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positive again in April. But she also provided a number of hair-stat and urinalysis
drug tests that were negative for illegal substances and, relying in part on those
negative tests, she disputes each of her positive sweat-patch tests. She claimed
that her positive sweat-patch tests were the result of sleeping on a mattress on
which she and her husband previously used and “spilled” methamphetamine.4 The
mother offered no evidence to support that sweat patches could provide false
positives in such a scenario. Plus, if the mattress caused the positive results, it is
unclear why the mother also had a positive sweat patch before she moved the old
mattress into her new apartment5 and why the husband never tested positive.
Considering the logical inconsistency in the mother’s claim about the
mattress’s role in the positive tests and her history of deception to the court, the
juvenile court found, “The ultimate question is whether the Court finds Mother’s
participation in services and claims of sobriety more credible than the objective
drug screen tests which shows ongoing methamphetamine [use] throughout the
case. The Court finds the objective testing, especially considering Mother’s history
of deception and minimization of issues, to be more credible.” Based on our review
of the record and the juvenile court’s credibility findings, see In re A.M., 843 N.W.2d
4 The husband testified, “We used our entire time that we were using together, we
used in our bedroom on that mattress. Drugs got spilled on it, we sweat on that
on a regular basis, and up until [May 21, 2021], we were still using that same
mattress.”
5 The husband testified the mother’s negative sweat patch in May 2020 supported
the idea that her positive sweat tests were due to the old mattress because the
mother was staying at the home of the maternal grandmother—not sleeping on the
old mattress—during that time period. The mother agreed in part, testifying she
did not start sleeping on the old bed again until she moved into her apartment in
August 2020. But then the drug-stained mattress could not be the cause of the
mother’s positive sweat patch in June 2020.
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100, 110 (Iowa 2014), we conclude the mother continues to use
methamphetamine. And, as she recognized, she cannot safely parent the children
while doing so. See, e.g., In re O.P., No. 20-0995, 2020 WL 5946390, at *2 (Iowa
Ct. App. Oct. 7, 2020) (citing In re J.S., 846 N.W.2d 36, 42 (Iowa 2014) (“[A]
juvenile court could reasonably determine that a parent’s active addiction to
methamphetamine is ‘imminently likely’ to result in harmful effects to the physical,
mental, or social wellbeing of the child[] in the parent’s care.”)). The children could
not be returned to her care at the time of the termination hearing. See 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 child-in-need-of-assistance adjudication). So termination is appropriate
under paragraph (f).
In passing, the mother states the loss of her rights is not in the children’s
best interests. She conflates the best-interests analysis under subsection
232.116(2) with the discretionary factors in subsection 232.116(3). But the State
bears the burden to prove termination is in the children’s best interests, while the
parent must prove a factor in subsection (3) makes termination unwarranted. See
A.S., 906 N.W.2d at 476 (holding the burden shifts from the State to the parent to
establish an exception to termination). Considering the “child[ren]’s safety and
need for a permanent home,” see In re J.E., 723 N.W.2d 793, 801 (Iowa 2006)
(Cady, J., concurring specially), we find termination is in the children’s best
interests. As of the last day of the termination hearing in July 2021, the children
had been removed from the mother’s care for approximately twenty-one months.
The mother had made progress in achieving sobriety, but she was not yet ready
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to parent the children full time. Termination of her rights will allow the children to
achieve permanency, which is in their best interests.
Next, the mother argues the juvenile court should have decided not to
terminate her rights because the children “were residing with their paternal
grandmother.” See Iowa Code § 232.116(3)(a). Additionally, she argues leaving
her rights intact would allow the children to have a relationship with their half-
sibling, whom the mother expected to deliver in October 2021. In the same vein,
the mother argues her “significant bond” with the children precluded termination.
See id. § 232.116(3)(c). The juvenile court declined to exercise its discretion to
apply an exception to save the parent-child relationship, concluding:
While Mother argued she and the children have a close relationship,
she offered no evidence that the child[ren] could not overcome the
severance of this relationship. After considering the children’s age,
[their] need for permanency, [their] placement in a pre-adoptive
home which is meeting their needs and the children feel[]
comfortable in, the length and extent of services provided to both
parents, [the] Court finds there are no legal exceptions in Iowa Code
Section 232.116(3) which would argue against termination.
We agree. The mother did not establish an exception that militates against
termination of her rights.
Finally, the mother argues the juvenile court should have placed the children
in a guardianship with the paternal grandmother—who had custody of the children
throughout the juvenile court proceedings—instead of terminating her parental
rights. See Iowa Code §§ 232.117(5) (“If after a hearing the court does not order
the termination of parental rights but finds that there is clear and convincing
evidence that the child is a child in need of assistance, . . . the court may adjudicate
the child to be a child in need of assistance and may enter an order in accordance
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with the provisions of . . . [section] 232.104.”); 232.104(2)(d)(1) (allowing the court
to enter a permanency order “[t]ransfer[ring] guardianship and custody of the child
to a suitable person.”). “[A] guardianship is not a legally preferable alternative to
termination.” A.S., 906 N.W.2d at 477. And the children’s young ages and the
lack of information about the relationship between the paternal grandmother and
the mother also weigh against a guardianship. See id. at 478 (distinguishing case
where a guardianship was appropriate because the child was ten years old and
able to express a preference for a guardianship and the parent and guardian
shared a “close, mature, healthy relationship that is free of conflict” with the present
facts, where a guardianship was not appropriate because the child was two years
old and too young to express a preference and neither the parent nor the guardian
testified about the possible guardianship). We cannot conclude the children should
be placed in a guardianship in lieu of termination of the mother’s rights.
We affirm the termination of the mother’s parental rights as to all three
children under section 232.116(1)(f).
AFFIRMED.