                    IN THE COURT OF APPEALS OF IOWA

                                      No. 18-0696
                               Filed September 12, 2018


IN THE INTEREST OF J.B.,
Minor Child,

BARBARA E. MANESS, guardian ad litem,
     Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor,

District Associate Judge.



      The guardian ad litem for J.B., joined by the State, appeals both the district

court order dismissing the State’s petition to terminate parental rights and the

permanency order continuing reunification efforts with the mother. REVERSED.



      Barbara E. Maness, Davenport, appellant.

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

General, for appellee State.

      Neill A. Kroeger, LeClaire, for appellee mother.



      Considered by Potterfield, P.J., and Bower and McDonald, JJ. Tabor, J.

takes no part.
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POTTERFIELD, Presiding Judge.

          The guardian ad litem (GAL) for J.B. and the State appeal the district court’s

April 2018 permanency order continuing reunification efforts and the court’s

dismissal order finding the State failed to prove the grounds for the termination-of-

parental-rights petition as to the mother.1 On appeal, the GAL argues the State

proved the grounds for termination under Iowa Code section 232.116(1)(d), (e),

(h), (i), or (l) (2018) and termination is in the best interests of the child.

I. Background Facts and Proceedings.

          The Iowa Department of Human Services (DHS) was first involved with J.B.

in March 2015 when his umbilical cord tested positive for marijuana at birth. A

founded child-abuse assessment was completed at that time. The child remained

in his mother’s care.

          In September 2016, DHS was alerted to concerns the mother was using

heroin. The mother tested positive for benzodiazepines, methadone, and THC in

a urine analysis. Both the mother and J.B. tested positive for marijuana in a hair-

stat test. J.B. was placed with his maternal grandfather. The mother entered a

residential treatment facility for substance abuse in October. J.B. was returned to

the mother’s care at the treatment facility in December. In February 2017, the

mother tested positive for marijuana use. In April, the mother tested positive for

marijuana use again.

          In May, while still living in the residential treatment facility, the mother

admitted to picking up J.B. from daycare after using inhalants to get high. J.B. was



1
    The father’s rights were terminated in a separate order. He is not a party to this appeal.
                                         3


removed from her care and again placed with his maternal grandfather. On the

day of the transition from the mother’s care to the grandfather’s, J.B. was

diagnosed with an ear infection and was prescribed antibiotics. The mother failed

to tell DHS or the grandfather about J.B.’s diagnosis or prescription for five days.

That month, the treatment facility discharged her from the program and

recommended another program for her. The mother did not follow through on the

recommendation.

      J.B. was adjudicated a child in need of assistance (CINA) in July. From

May to August, the mother did not participate in any substance-abuse treatment

and failed to consistently comply with drug testing. The mother was admitted to a

substance-abuse treatment program in August. She tested positive for marijuana

use on August 11, September 14, and September 27.

      The mother has frequently missed visits with J.B. or failed to comply with

procedures confirming her visits. She missed visitation four times in May, twice in

June, once in July, three times in August, once in October, and twice in November.

The mother was homeless after her release from the residential treatment facility

in May and stayed with her mother or friends until December when she obtained

an apartment.

      In December, the mother overdosed on heroin.                She was found

unresponsive in the shower and was revived by paramedics. The mother tested

positive in January 2018 for methamphetamine use.

      The mother was discharged in February 2018 from the substance-abuse

treatment program she began in August due to continuing substance abuse and

attendance issues. The mother was admitted to an inpatient treatment facility on
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February 28. Following a successful discharge from that facility in March, she

began participating in an intensive outpatient program with housing. Her tentative

discharge date from that program was in late June. The mother was able to

resume visits with J.B. at that facility starting in April.

       The mother is diagnosed with depression, anxiety, and PTSD.               From

September 2016 to May 2017, she attended two therapy sessions. The mother’s

therapist submitted a letter stating that the mother attended nine sessions from

October 2017 to January 2018 but has not participated since then. The therapist’s

letter indicated the mother needed continuing mental-health counseling and

substance-abuse treatment, stating, “If she does not remain sober and comply with

treatment I am concerned that it may have serious, if not fatal consequences.”

       The State filed a broad—apparently a form—petition for termination of

parental rights in February 2018, alleging the parents’ parental rights should be

terminated under Iowa Code section 232.116(1)(a), (b), (d), (e), (h), (i), and (l).

The petition against both parents was supported by an affidavit containing factual

assertions. The petition for termination of parental rights was set for hearing along

with the continuation of the permanency hearing in April 2018. The district court

terminated the father’s rights but, as to the mother, found the child could be

returned to the mother imminently and ordered continuing reunification efforts and

continued placement with the maternal grandfather.             The court summarily

dismissed the State’s petition for termination of the mother’s parental rights for lack

of proof without referring to any specific subsection of Iowa Code section

232.116(1).
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       The GAL and the State appeal the court’s permanency order and dismissal

of the petition to terminate parental rights. We turn to the order dismissing the

petition for termination of parental rights, as this issue is dispositive of the appeal.

II. Standard of Review.

       We review termination proceedings de novo. In re A.B., 815 N.W.2d 764,

773 (Iowa 2012). We are not bound by the fact findings of the district court, but

we do give them weight—especially when assessing witness credibility.                Id.

“Grounds for termination must be prove[d] by clear and convincing evidence.” In

re J.E., 723 N.W.2d 793, 798 (Iowa 2006). “Our primary concern is the best

interests of the child.” Id.

III. Discussion.

               Termination of parental rights under Iowa Code chapter 232
       follows a three-step analysis. The first step is to determine whether
       a ground for termination under section 232.116(1) is established. If
       so, the court then applies the best-interest framework set out in
       section 232.116(2) to determine if the grounds for termination should
       result in a termination of parental rights. If the statutory best-interest
       framework supports termination of parental rights, the court must
       finally consider if any of the factors set out in section 232.116(3)
       weigh against termination of parental rights.

In re A.D., No. 14-0431, 2014 WL 4231062, at * 3 (Iowa Ct. App. Aug. 27, 2014)

(reversing the court’s order dismissing the termination petition and terminating both

parents’ parental rights when clear and convincing evidence supported termination

and termination was in the children’s best interests); see also In re J.L., No. 12-

2024, 2013 WL 530906, at *2–4 (Iowa Ct. App. Feb. 13, 2013) (reversing an order

dismissing the State’s petition for termination of parental rights and terminating the

parents’ parental rights when the State proved by clear and convincing evidence
                                              6


the statutory grounds for termination, termination was in the child’s best interests,

and there were no exceptions preventing termination).

          The GAL claims the State proved grounds for termination as to the mother’s

rights by clear and convincing evidence under Iowa Code section 232.116(1)(d),

(e), (h), (i), or (l).2 If the elements of any one of the grounds are proved by clear

and convincing evidence, the first part of the analysis is met. Id. While we agree

with the district court the State has failed to prove the grounds for termination under

subsections (1)(d), (e), and (i), we disagree as to the elements of subsections (h)

and (l).

          Subsection 232.116(1)(d) requires a finding the child has been physically or

sexually abused or neglected. Subsection (e) requires evidence the mother has

not maintained significant and meaningful contact with J.B.; the evidence in the

record shows she has maintained meaningful contact. Subsection (i) requires

abuse or neglect that poses a significant risk to the life of the child or constitutes

imminent danger to the child. Neither the GAL, the State, nor the district court has

indicated what event satisfies the element of abuse or neglect in subsections (d)

or (i).

          Section 232.116(1)(h) provides that termination may be ordered when

“there is clear and convincing evidence that a child under the age of three who has

been adjudicated a CINA and removed from the parents’ care for at least the last

six consecutive months cannot be returned to the parents’ custody at the time of

the termination hearing.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010); accord



2
    Subsections 232.116(1)(a) and (b) clearly do not apply.
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Iowa Code § 232.116(1)(h). Here, J.B. turned three in March 2018. J.B. has been

out of his mother’s care since May 5, 2017, almost twelve months at the time of

the permanency order. Before that, J.B. had been placed in relative care from

September 2016 to December 2016. At the time of the termination hearing, J.B.

had lived with his maternal grandfather for fifteen of the thirty-seven months of his

life.

        The mother argues the district court correctly found she was able to have

the child returned to her. The district court found, “Technically, she would have

the ability to have the child returned to her today. . . . [T]he court does believe that

the mother will be in a position to have the child returned to her and that return is

imminent.” To prove that J.B. cannot be returned to the mother’s care, the State

must prove that, if returned to the mother’s custody, J.B. would be exposed to harm

which would justify his adjudication as a CINA. See In re L.E.H., 696 N.W.2d 617,

619 (Iowa Ct. App. 2005).

        At the time of the permanency hearing in April 2018, the mother had been

sober for three months in a supervised setting. See In re L.C., No. 17-0922, 2017

WL 3283397, at *4–5 (Iowa Ct. App. Aug. 2, 2017) (noting the court considers

whether sobriety has occurred outside a custodial setting in making termination

decisions). She had been participating in treatment for two months and still lived

in an inpatient treatment facility at the time of the permanency hearing. She

testified she had an apartment she could return to but did not have a job, a driver’s

license, or a mode of transportation.       While we are hopeful for the mother’s

continued sobriety and successful treatment, her last-minute efforts are

insufficient. See In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (“Time is a critical
                                          8


element. A parent cannot wait until the eve of termination, after the statutory time

periods for reunification have expired, to begin to express an interest in

parenting.”).

       Evidence of a parent’s past performance may be indicative of the quality of

the future care the parent is capable of providing. In re L.L., 459 N.W.2d 489, 493

(Iowa 1990). The mother has been discharged from two treatment programs in

two years for continuing drug use. She has not had a significant period of sobriety

since the founded child-abuse assessment in September 2016. “We have long

recognized that an unresolved, severe, and chronic drug addiction can render a

parent unfit to raise children.” A.B., 815 N.W.2d at 776.

       The district court found the mother’s situation at the treatment facility would

allow J.B. to be placed with her while she resided there and would allow for

reunification. We take a longer view. We must consider J.B.’s long-term as well

as immediate interests. J.E., 723 N.W.2d at 798. Short-term improvement on the

eve of termination is not enough for the child to safely return. See C.B., 611

N.W.2d at 495 (finding “the changes in the two or three months before the

termination hearing, in light of the preceding eighteen months, are insufficient”);

see also D.W., 791 N.W.2d at 707 (finding termination appropriate even though

the mother did “display some improvement in some areas and was currently

committed to sobriety”); In re Z.R., No. 17-1004, 2017 WL 4050989, at *4 (Iowa

Ct. App. Sept. 13, 2017) (finding termination appropriate when the mother’s last-

minute sobriety occurred in a custodial setting); In re J.R., No. 17-0070, 2017 WL

1735914, at *2 (Iowa Ct. App. May 3, 2017) (finding termination appropriate even

though the mother secured appropriate housing two months before the
                                         9


adjudication hearing, stating, “We find her current living situation has not been

sustained long enough to show she is able to maintain it”); In re E.M., No. 16-1641,

2016 WL 6903519, at *2 (Iowa Ct. App. Nov. 23, 2016) (finding a three-month

period of sobriety not enough time to demonstrate a consistent effort).

      Given the mother’s past failures to complete drug treatment successfully

and to regularly attend visits, and how recent her achievement of sobriety in

treatment is, we find J.B. would be at risk if he were returned to her care. Upon

our de novo review of the evidence, we find the child cannot be safely returned to

the mother’s custody. The State has proved the grounds for termination under

Iowa Code section 232.116(1)(h) by clear and convincing evidence.

      We find the State also proved the elements of Section 232.116(1)(l).

Subsection (l) requires: (1) the child is adjudicated CINA and the parent does not

have custody, (2) the parent has a severe substance-abuse related disorder and

presents a danger to self or others as evidenced by prior acts, and (3) clear and

convincing evidence the parent’s prognosis indicates the child will not be able to

be returned to the custody of the parent within a reasonable period of time

considering the child’s age and need for a permanent home. Here, J.B. has been

adjudicated CINA and is in the custody of his maternal grandfather. The mother

has been diagnosed with cannabis and opioid dependence, and presents a danger

to herself, as evidenced by her recent overdose. In making the decision whether

J.B. can be returned to his mother’s custody within a reasonable period of time,

we consider “not only the child’s age but the length and severity of the parent’s

substance abuse problem, the prognosis for long-term sobriety, and the likely harm

to come to the child if returned home.” In re J.S.-G., No. 13–1795, 2014 WL 70306,
                                          10


at *1-2 (Iowa Ct. App. Jan. 9, 2014) (finding the child could not be returned within

a reasonable time when the mother had been sober for five months but had a

history of relapsing when not in a supervised setting). At the time of the termination

hearing, the mother had been clean for three months and was two months into

treatment. The mother has had issues with substance abuse since before the

child’s birth. At three years of age, J.B. does not have the ability to self-protect, is

not regularly seen within the community, and cannot report his situation. We find

the child cannot be returned within a reasonable time. The State proved the

grounds for termination under section 232.116(1)(l) by clear and convincing

evidence.

       Next, the GAL and the State argue termination is in J.B.’s best interests.

See Iowa Code § 232.116(2). In reaching our conclusion, we must “give primary

consideration to the child’s safety, to the best placement for furthering the long-

term nurturing and growth of the child, and to the physical, mental, and emotional

condition and needs of the child.” Id. We agree termination is in J.B.’s best

interests. While the mother and J.B. clearly share a bond, our legislature has

limited the period in which parents can demonstrate they are capable of parenting.

J.E., 723 N.W.2d at 800. “The crucial days of childhood cannot be suspended

while parents experiment with ways to face up to their own problems.” In re A.C.,

415 N.W.2d 609, 613 (Iowa 1987). “We do not ‘gamble with the children’s future’

by asking them to continuously wait for a stable biological parent, particularly at

such tender ages.” D.W., 791 N.W.2d at 707 (citation omitted).

       The maternal grandfather has cared for the child for almost half of his life.

The mother is still in a substance-abuse treatment program and is not able to care
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for the child at this time. The record shows J.B. has thrived in his grandfather’s

care and the grandfather is willing to adopt him if the mother’s parental rights are

terminated. While the law requires a “full measure of patience with troubled

parents who attempt to remedy a lack of parenting skills,” this patience has been

built into the timelines of chapter 232. C.B., 611 N.W.2d at 494.

       Finally, we must determine whether any of the exceptions to termination

provided in Iowa Code section 232.116(3) should be applied. “A finding of any of

these factors allows the court to avoid terminating parental rights, but the factors

are permissive, not mandatory.” In re A.S., 906 N.W.2d 467, 475 (Iowa 2018)

(citation omitted). “[O]nce the State has proven a ground for termination, the

parent resisting termination bears the burden to establish an exception to

termination.” Id. at 476. The mother has not argued any exceptions to termination

apply. While it is apparent the mother and J.B. share a bond, the record is devoid

of any evidence showing termination would be detrimental to the child or that the

maternal grandfather is willing to enter into a guardianship.

       Because the State has met its burden of providing clear and convincing

evidence for termination, we reverse the district court’s order and terminate the

mother’s rights pursuant to section 232.116(1)(h) and (l).

       REVERSED.
