                     IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0778
                                Filed July 5, 2018


IN THE INTEREST OF N.W.,
Minor Child,

C.W., Mother,
      Appellant.
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       Appeal from the Iowa District Court for Linn County, Susan F. Flaherty,

Associate Juvenile Judge.



       A mother appeals the termination of her parental rights to her child.

AFFIRMED.



       Ryan P. Tang of Law Office of Ryan P. Tang P.C., Marion, for appellant

mother.

       Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

       Kimberly A. Opatz of Linn County Advocate, Cedar Rapids, guardian ad

litem for minor child.



       Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

       A mother appeals the termination of her parental rights to her child, N.W.,

arguing the State failed to prove the grounds for termination by clear and

convincing evidence and termination is not in the child’s best interests. We review

these claims de novo. See In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). In doing

so, we are not bound by the juvenile court’s findings of fact, although we give them

weight, especially those concerning witness credibility. See id.

       N.W. was removed from the mother’s care shortly after birth due to

concerns about the mother’s substance abuse. Although the mother’s older child

had been adjudicated to be a child in need of assistance (CINA) in 2016 due to the

mother’s use of methamphetamine while the child was in her care, the mother had

failed to engage in substance-abuse treatment before N.W.’s birth. The mother

tested positive for methamphetamine and cocaine while pregnant with N.W., and

N.W. tested positive for methamphetamine and cocaine at birth.

       The juvenile court adjudicated N.W. to be a CINA. When the mother failed

to address her substance-abuse issues during the CINA proceedings, the State

filed a petition seeking to terminate the mother’s parental rights to N.W. Following

a hearing, the juvenile court terminated the mother’s parental rights to N.W.

pursuant to Iowa Code section 232.116(1)(h) (2017).

       In order to terminate parental rights, the juvenile court must first find clear

and convincing evidence supporting one of the grounds for termination listed under

Iowa Code section 232.116(1). See In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).

To terminate a parent’s rights under section 232.116(1)(h), clear and convincing

evidence must establish the following:
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              (1) The child is three years of age or younger.
              (2) The child has been adjudicated a [CINA] pursuant to
      section 232.96.
              (3) The child has been removed from the physical custody of
      the child’s parents for at least six months of the last twelve months,
      or for the last six 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.

      The mother does not dispute there is sufficient evidence to support the first

three requirements for termination under section 232.116(1)(h). Instead, she

challenges the sufficiency of the evidence supporting the fourth requirement,

claiming that “with the aid of services offered through the Department [of Human

Services (DHS)],” custody could be safely returned to her “under the protective

supervision of the [DHS].” The question is whether returning the child to the mother

at the time of the termination hearing would expose the child to the kind of harm

that would lead to a CINA adjudication.       See Iowa Code § 232.116(1)(h)(4)

(requiring proof the child could not be returned to the parents “as provided in

section 232.102 at the present time”); D.W., 791 N.W.2d at 707 (interpreting the

term “at the present time” to mean “at the time of the termination hearing”); In re

M.M., 483 N.W.2d 812, 814 (Iowa 1992) (“[A] child cannot be returned to the parent

under Iowa Code section 232.102 if by doing so the child would be exposed to any

harm amounting to a new [CINA] adjudication.”).

      Clear and convincing evidence shows the child could not be returned to the

mother’s care at the time of the termination hearing without exposing the child to

harm that would lead to a CINA adjudication. The mother was in a residential

treatment program at the time the termination hearing was held on January 19,
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2018. She had only begun the program on January 9, 2018, at which time she

tested positive for amphetamine. She was expected to remain in treatment until

February 7, 2018. In light of the mother’s lengthy history of substance abuse and

denial of the same, this meager start in addressing her substance-abuse issues

on the eve of termination is insufficient to support a finding the child could be

returned safely to the mother’s care.

       We next turn to the mother’s claim that termination is not in N.W.’s best

interests. In making the best-interests determination, the 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 in a child’s best interest” are the child’s

safety and “need for a permanent home.” In re J.E., 723 N.W.2d 793, 802 (Iowa

2006) (Cady, J., concurring specially).

       The mother argues that termination would be “detrimental” to N.W., citing

section 232.116(3)(c) (stating the court need not terminate parental rights if it finds

clear and convincing evidence that the termination would be detrimental to the

child due to the closeness of the parent-child relationship). The record does not

support her assertion. N.W. was removed from the mother’s care at two days of

age and has never been returned to the mother’s home. The mother’s only contact

with N.W. during N.W.’s short life has been during supervised visits. N.W.’s need

for permanency and safety outweigh any possible negative effects from

terminating the mother’s parental rights. Termination is in N.W.’s best interests.
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Accordingly, we affirm.

      AFFIRMED.
