                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0606
                               Filed August 2, 2017


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

K.S.K., Mother,
      Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Dallas County, Virginia Cobb,

District Associate Judge.



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

AFFIRMED.



       Gina E. Verdoorn of Sporer & Flanagan, Des Moines, for appellant

mother.

       Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney

General, for appellee State.

       Kayla Stratton of Juvenile Public Defender’s Office, Des Moines, guardian

ad litem for minor children.



       Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, Judge.

       A mother, Kathryn, appeals the juvenile court’s decision to terminate her

parental rights to two children, three-year-old J.A. and two-year-old M.K. She

challenges the sufficiency of the State’s proof of the statutory grounds for

termination and contends termination is not in the best interests of the children.

After independently reviewing the record, we find clear and convincing evidence

the children cannot be safely returned to Kathryn’s care and termination is in their

best interests.1

    I. Background Facts and Proceedings

       This family first came to the attention of the Iowa Department of Human

Services (DHS) in the summer of 2014 after Kathryn filed a domestic-abuse

petition against the father, Johnnie.2          The DHS had concerns about the

continuing domestic violence perpetrated by Johnnie and about the parents’ drug

use around the children. The juvenile court ordered J.A. to be removed from his

parents’ custody due to these concerns.3



1
  Our review is de novo. See In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). We are not
bound by the factual findings of the juvenile court, but we do give them weight,
particularly with regard to the credibility of witnesses. See id. “We will uphold an order
terminating parental rights if there is clear and convincing evidence of grounds for
termination under Iowa Code section 232.116.” In re D.W., 791 N.W.2d 703, 706 (Iowa
2010). Evidence is “clear and convincing” when there are no “serious or substantial
doubts as to the correctness [of] conclusions of law drawn from the evidence.” See
M.W., 876 N.W.2d at 219 (alteration in original) (citation omitted).
2
  Kathryn sought a civil protective order in June 2014 but later denied she was the victim
of domestic abuse.
3
  Kathryn has two older children from a previous relationship who were included in this
removal order. As of August 5, 2015, the oldest child permanently resided in Utah with
his biological father. As of November 2016, Kathryn’s second oldest child was in a
                                             3


        The DHS placed J.A. in foster care in August 2014.                 Kathryn began

mental-health treatment that same month at the recommendation of the DHS. A

few months after she began therapy, she and Johnnie were married.                       The

juvenile court adjudicated J.A. a child in need of assistance (CINA) in November

2014.

        Kathryn was generally consistent with therapy for the next two years, but

she discontinued treatment in October 2016. Kathryn worked with a therapist on

issues concerning domestic violence.             The therapist testified Kathryn was

“a natural caregiver” and would often get “sucked back” into a dangerous

relationship with Johnnie when he needed help due to his mental-health and

substance-abuse issues. The therapist believed Kathryn was eventually able to

identify these triggers, and the two of them explored strategies for Kathryn to

leave Johnnie safely. The therapist did not note any substance-abuse problems

at the beginning of Kathryn’s therapy. Kathryn confided she had an “addiction” to

the relationship with Johnnie rather than to controlled substances.

        Kathryn and Johnnie participated in services provided by the DHS and

moved to semi-supervised visits in March 2015. The juvenile court held a review

hearing the following month and found Kathryn and Johnnie were making

progress. J.A. returned to his parents’ care in mid-April for a trial home visit.

        The progress Kathryn and Johnnie exhibited in the months after J.A. was

adjudicated a CINA stalled near the end of his first trial home visit. Kathryn, who

was pregnant with M.K. at the time, testified she stopped living with Johnnie in

relative’s care. Kathryn’s parental rights to her two older children are not at issue in this
appeal.
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June 2015. According to Kathryn, Johnnie had threatened to hurt her, so she

decided to leave him. This incident of domestic violence resulted in another

protective order preventing contact between the parents, and J.A. once again

returned to foster care in June.

       M.K. was born in July 2015.       The court adjudicated M.K. a CINA on

August 19 because she was born with a heart condition that left her vulnerable

when coupled with her parents’ unresolved mental-health issues and Johnnie’s

issues with domestic violence. M.K. remained in Kathryn’s care following the

adjudication, while J.A. stayed in foster care in the months following M.K.’s birth.

Kathryn signed a safety plan in August 2015, agreeing she would only

communicate with Johnnie by email and would interact with him only to co-parent

J.A. and M.K. In November, the court placed J.A. back in Kathryn’s care, where

he remained with M.K. for the next six months.

       On May 17, 2016, Kathryn agreed to removal of J.A. and M.K. based on

her drug use. Her children’s removal in May 2016 marked the first time the DHS

focused on Kathryn’s substance abuse.            Kathryn began substance-abuse

treatment on May 19 at New Beginnings in Des Moines and attended until the

second week in July. Kathryn told her substance-abuse counselor she used

methamphetamine almost daily from December 2015 to May 2016.               Kathryn

would often use with Johnnie and give him unapproved access to J.A. and M.K,

despite the DHS safety plan and court order prohibiting his contact with Kathryn

and the children.

       Visitation between Kathryn and her children was always positive. The

DHS had no concerns regarding Kathryn’s treatment of her children during visits.
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Kathryn eventually had supervised visits twice a week for an hour and a half

each time.4 Both children had appointments with medical specialists. The record

reflects no problems with Kathryn’s knowledge of cardiopulmonary resuscitation,

so she was able to safely to participate in visits with M.K. in spite of her heart

condition. J.A. had an underdeveloped pituitary gland for which he was seeing

an endocrinologist, but his condition never caused any problems for Kathryn

during their visits.

       Kathryn began work at Perry Health Care Center in June 2016, where she

performed well as a licensed practical nurse. Her employer submitted a letter to

the court outlining many her duties. Her employer did not suspect drug use and

did not question her honesty or integrity. In July, not long after Kathryn started

work at Perry Health Center, the sweat test she provided for the DHS was

positive for methamphetamine.

       Kathryn did not successfully complete her substance-abuse therapy at

New Beginnings. She changed treatment providers in mid-July 2016, stating she

had a difficult commute from her home in Perry to treatment in Des Moines. She

was admitted to treatment at Zion Recovery in Perry on August 4, and she

completed her substance-abuse goals five weeks before she stopped attending

treatment. Kathryn provided a urine sample at Zion on the day of her admission,

which came back positive for amphetamines.             Kathryn’s prescribed ADHD

medication accounted for the positive amphetamine result.



4
 Kathryn’s visitation had decreased from three times per week due to scheduling issues
with her family safety, risk, and permanency worker.
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      The DHS was concerned Kathryn was not being honest about her

substance-abuse history with her therapist at Zion. That therapist told the DHS

Kathryn had not revealed her previous drug use or the positive tests. Kathryn

also had not informed Zion about her previous treatment provider’s concerns that

her ADHD medication could impede her recovery from methamphetamine

abuse.5

      Due to his unresolved mental-health and substance-abuse issues and his

low participation in services offered by the DHS, Johnnie’s parental rights were

terminated on August 8, 2016.6 Johnnie would later tell the DHS he began living

at Kathryn’s home on August 25 and together they moved his belongings into her

house in the middle of the night so they would not be seen. Kathryn disputed

Johnnie’s account, claiming a friend dropped off Johnnie’s belongings to store at

her home.

      Kathryn participated in another urinalysis at Zion on September 14. This

test came back negative for methamphetamine but positive for amphetamines, a

result consistent with taking her ADHD medication. When Kathryn submitted to a

sweat test through the DHS on September 17, it came back positive for

methamphetamine. Kathryn denied the results, claiming her ADHD medication

also caused the positive methamphetamine result.

      On September 21, 2016, Kathryn was the victim of a particularly violent

incident with Johnnie when she found him in her home uninvited. This led to a

5
  Kathryn’s substance-abuse provider at New Beginnings recommended she not take
amphetamines to treat her ADHD due to her history of substance abuse, but Kathryn
disregarded that advice.
6
  Johnnie is not a party to this appeal.
                                         7


standoff between Johnnie and the police.        Kathryn told a responding officer

Johnnie had assaulted her, giving her two black eyes and leaving bruising on her

neck. The police learned Kathryn was storing many of Johnnie’s belongings in

her home, as well as caring for their dog. This incident led the DHS to believe

Kathryn had more contact with Johnnie than she was reporting.

        After this incident, Kathryn began to miss mental-health appointments.

Her therapist testified it would have been better for Kathryn not to stop treatment

so soon after an upsetting event. But Kathryn told her therapist it was difficult for

her to fit in the appointments with her work schedule and visits with her children.

        Kathryn’s last visit with her mental-health provider was in mid-October

2016.    Kathryn’s substance-abuse therapist at Zion suggested she remain

enrolled in the substance-abuse program after she completed her goals to

combat the emotional strain caused by her children’s removal and Johnnie’s

abuse. But Kathryn decided not to remain enrolled in the program. She did not

show up for ten drug tests required by the DHS between July and December

2016. Kathryn testified she stopped showing up for these tests because she was

planning for her parents to adopt the children.7

        The State filed a petition to terminate Kathryn’s parental rights on

December 6, 2016. The juvenile court held the termination hearing over two

days, December 13, 2016, and January 9, 2017. On the second day of the

hearing, a social worker testified Kathryn had returned to Zion for substance-


7
 The DHS found Kathryn’s parents were not appropriate candidates for adoption after
Kathryn’s father tested positive for methamphetamine during a hair test in November
2016.
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abuse treatment in January. In a letter admitted during the hearing, Kathryn’s

substance-abuse counselor at Zion reported her urinalysis was negative when

she returned to treatment and she had stopped taking the ADHD medication that

produced her previous positive amphetamine result. The counselor also believed

Kathryn was committed to parenting her children and would be able to provide a

safe and nurturing environment for them.

       On March 30, 2017, the juvenile court terminated Kathryn’s parental rights

under Iowa Code section 232.116(1)(d) and (h) (2016). The court recognized

Kathryn was “an intelligent, educated woman with significant skills,” but

nevertheless concluded she had unaddressed issues with substance abuse and

violent relationships that did not allow the children to return home safely.

       Kathryn appeals the juvenile court’s termination order.

   II. Analysis

          A. Statutory Grounds

       Kathryn argues the State did not prove with clear and convincing evidence

the grounds for termination under section 232.116(1)(d).           Specifically, she

challenges the State’s proof of the final requirement of subsection (d), that the

circumstances that led to the CINA adjudication continued to exist despite the

offer or receipt of services. Because Kathryn does not challenge the termination

under subsection (h), we can affirm on that ground. See In re P.L., 778 N.W.2d

33, 40 (Iowa 2010) (holding even if only one ground for termination is proven, the

court may order the termination). But even if we construed Kathryn’s argument

broadly to include a challenge to the fourth element of section 232.116(1)(h)—

requiring clear and convincing proof the children could not be returned to her
                                       9


care—we would still find the statutory grounds satisfied. The children are both

three years of age or younger, they have both been adjudicated as CINA, both

have been removed from their mother’s custody for more than six consecutive

months, and clear and convincing evidence shows they cannot be returned to

their mother’s care at the present time. See Iowa Code § 232.116(1)(h).

       The juvenile court identified three concerns regarding Kathryn’s parental

ability: her substance abuse, her mental health, and her pattern of abusive

relationships.   Kathryn maintains she willingly participated in the services

provided to combat these issues, though she admits not consistently seeking

mental-health therapy. She claims she has no contact with Johnnie and denies

using controlled substances.

       We find clear and convincing evidence the children cannot be safely

returned to Kathryn’s care. After two years of receiving therapy to improve her

mental health, Kathryn’s attendance grew inconsistent just when she was

confronting traumatic events in her life.   Although Kathryn had been working

through her issues of being victimized by Johnnie, those domestic-violence

issues were still ongoing after years of therapy.         She admitted using

methamphetamine with him and willingly stored his belongings in her home when

she claimed she was not in contact with him.

       At the beginning of the CINA case, Kathryn did not have an ongoing

problem with methamphetamine abuse, but she admitted using the drug

recreationally in her past. Her more severe drug problems occurred after a year

of participating in DHS services. She used methamphetamine regularly from

December 2015 to May 2016.        She had two positive sweat patch tests for
                                        10


methamphetamine between July and December 2016 and missed ten drug tests

in the same time period.

       These circumstances indicate the children cannot be safely returned to

Kathryn’s care. Her drug use worsened while she participated in services. It is

also concerning that she did not ultimately take responsibility for the positive

methamphetamine test results in 2016. See In re A.B., 815 N.W.2d 764, 775

(Iowa 2012) (holding a father’s denial of having any substance-abuse issues

when he had tested positive for methamphetamine was enough to terminate his

parental rights despite his positive participation in parenting services). Not until

January 2017 did she follow the recommendation of her substance abuse

therapist to discontinue use of the narcotic ADHD medication. Termination under

section 232.116(1)(h) is proper.

          B. Best Interests

       After concluding the State has proven statutory grounds sufficient for

termination, we must find termination is in the best interests of the children. See

A.B., 815 N.W.2d at 776. We consider three best-interests factors: (1) the child’s

safety, (2) the best placement for furthering the long-term nurturing and growth of

the child, and (3) the physical, mental, and emotional condition and needs of the

child. Iowa Code section 232.116(2); see also P.L., 778 N.W.2d at 37.

       Kathryn asserts the strong bond she has with her children is a compelling

reason not to terminate her parental rights. Closeness between a parent and

child is a mitigating factor provided in Iowa Code section 232.116(3)(c). But the

closeness of the parent-child relationship does not automatically outweigh other
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factors in support of termination. See In re N.F., 579 N.W.2d 338, 341 (Iowa Ct.

App. 1998).

       The record shows Kathryn was engaged and affectionate during her visits

with J.A. and M.K. But we must balance those positive connections against the

risk posed by her recent difficulties with methamphetamine abuse and inability to

protect the children from the domestic violence perpetrated by Johnnie. J.A. and

M.K. live together with foster parents who are interested in adopting them and

are able to meet their medical needs. Opening them to the possibility of adoption

in a stable home without the threat of domestic abuse or exposure to controlled

substances will further the physical, mental, and emotional needs of the children.

Accordingly, we find termination of Kathryn’s parental rights is in the best

interests of the children.

       AFFIRMED.
