                    IN THE COURT OF APPEALS OF IOWA

                                      No. 17-0851
                               Filed September 27, 2017


IN THE INTEREST OF A.S.,
Minor Child,

A.S., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Monroe County, William S. Owens,

Associate Juvenile Judge.




       A mother appeals the termination of her parental rights. REVERSED AND

REMANDED WITH DIRECTIONS.




       Robert F. Bozwell, Jr. of Bozwell Law Office, Centerville, for appellant

mother.

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

General, for appellee State.

       Julie R. De Vries of De Vries Law Office, PLC, Centerville, guardian ad

litem for minor child/appellee.




       Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
                                           2


DOYLE, Judge.

       A mother appeals the termination of her parental rights, asserting several

claims.   Because we agree, based on the unique facts of the case, that a

guardianship should have been created rather than terminating the mother’s

parental rights, we reverse the juvenile court’s termination-of-parental-rights

ruling with respect to the mother. We remand the case back to the juvenile court

to enter an order transferring guardianship and custody of the child to the

maternal grandparents pursuant to Iowa Code section 232.104(2)(d)(1) (2017).

       I. Background Facts and Proceedings.

       A.S. is the mother and J.S. is the father of A.S., born in 2015. The family

came to the attention of the Iowa Department of Human Services (DHS) in 2016

after it was reported the child had been sexually abused.             Specifically, on

February 4, 2016, the mother left the child, then about three months old, in the

care of the father, who she knew was intoxicated, for approximately two hours.

       Upon [the mother’s] return home, she observed [the father] “passed
       out” and [the child] crying and shaking in a baby swing. [The
       mother] noticed blood coming from [the child’s] diaper. When [the
       mother] removed the diaper, she noticed injury to [the child’s]
       genitals. [The mother] took [the child] to the . . . hospital. Injuries
       were observed and [the child] was taken to Blank Children’s
       Hospital by ambulance. [The child] ha[d] suffered injuries from
       forced sexual abuse. The injuries required surgery. [The mother]
       made statements she didn’t want to believe the child’s father
       caused such injuries.

The child was removed from the parents’ care and subsequently adjudicated a

child in need of assistance (CINA).1 The child was placed in the custody of the


1
 At the time of the termination-of-parental-rights hearing, the father was in prison,
having been found guilty of first-degree sexual abuse and sentenced to life without the
possibility of parole. His parental rights were also terminated, and he does not appeal.
                                            3


child’s maternal grandparents, where the child has since remained.2 The mother

also moved into the maternal grandparents’ home and continued to live there

throughout the case.

       As directed by the juvenile court, the mother saw a psychologist for a

mental-health evaluation in May 2016. The psychologist’s report that followed

advised:

               During [the mother’s] schooling, she was in special
       education services and reported current reading problems.
       Psychological testing administered during this evaluation placed
       her intellectual ability in the mildly intellectually disabled/borderline
       range. Brief screening measures placed her reading and oral
       comprehension ability at the fourth grade level, with her memory
       ability in the low average range. . . . [S]he appeared perplexed by
       more conceptual, open ended questions. Background records
       indicate that at times she does not understand legal circumstances
       and the purpose of services provided to her.
               ....
               A less than ideal relationship between [the mother] and her
       husband, [the father], was described. She was hesitating in
       describing details about her husband and their relationship, but she
       did reluctantly acknowledge he called her names and used alcohol.
       Background records indicate that both of these behaviors occurred
       with some regularity. Despite these difficulties and the allegations
       of sexual abuse towards her daughter, she remains committed to
       this relationship and has a positive appraisal of [the father] and his
       parenting abilities. Background records also indicate she remains
       committed to the marriage, and she has visited him regularly while
       incarcerated.
               A number of concerns arose in regard to [the mother’s]
       ability to autonomously care for her young daughter. During this
       evaluation, she communicated a basic framework of appropriate
       parenting practices but more sophisticated practices needed further
       assistance and instruction. She did articulate that it was acceptable
       to leave her child in the care of an intoxicated individual, as she
       believed that individual could decide how to take care of a child.
       Background records indicate that she does not appear to
       acknowledge the seriousness of the sexual assault and believes

2
 The child was placed in the maternal grandparents’ legal custody until the court
entered its termination-of-parental-rights ruling, where the child was placed in the legal
custody of the DHS.
                                         4


       that her husband did not carry out such behavior as he informed
       her of this. Background records indicate that she does appear to
       have a bond with her daughter, but relatives have expressed
       concerns about her ability to care for a young child and there have
       also been previous concerns about maintaining appropriate caloric
       intake for her daughter. In sum, [the mother] may appear well-
       intentioned in regard to the welfare of her daughter, but at times
       she does not fully appreciate the complexity of the issues and
       potential threats to the welfare of her daughter.

The psychologist set forth recommendations for providing the mother services “in

an attempt to bolster [her] parental capacity,” but the psychologist believed the

services could not remedy the mother’s difficulties in the long term, given her

intellectual disability. The psychologist opined the mother was “likely to require

services for a longer period of time until her daughter maturates to a level where

she can partially care for her own well-being.”

       Services were provided to the mother, and the DHS case worker and

service providers attempted to tailor those services to accommodate the mother’s

difficulties as recommended by the psychologist.        There is no question the

mother fully engaged in the services provided and was generally willing to do

anything asked of her for reunification, though she did continue to visit the father

in jail for many months after the start of the case. At the end of the day, the DHS

case worker and service providers did not believe the mother could safely care

for the child on her own due to her intellectual limitations. The DHS, the child’s

guardian   ad   litem, and    the   court-appointed   special advocate      (CASA)

recommended termination of the mother’s parental rights.              Following a

termination-of-parental-rights hearing, the juvenile court agreed and terminated

the mother’s parental rights pursuant to paragraph (h) of section 232.116(1).
                                            5

       The mother now appeals that ruling. Our review is de novo. In re M.W.,

876 N.W.2d 212, 219 (Iowa 2016).

       II. Discussion.

       Parental rights may be terminated under Iowa Code chapter 232 if the

following three conditions are true: (1) a “ground for termination under section

232.116(1) has been established” by clear and convincing evidence, (2) “the

best-interest framework as laid out in section 232.116(2) supports the termination

of parental rights,” and (3) none of the “exceptions in section 232.116(3) apply to

preclude termination of parental rights.” Id. at 219-20. “For evidence to be ‘clear

and convincing,’ it is merely necessary that there be no serious or substantial

doubt about the correctness of the conclusion drawn from it.” Raim v. Stancel,

339 N.W.2d 621, 624 (Iowa Ct. App. 1983); see also M.W., 876 N.W.2d at 219.

       The mother’s arguments on appeal are intertwined. She contends the

State failed to prove the child could not be returned to her care—the fourth

element of paragraph (h)—because the mother continued to reside with the child

in the maternal grandparents’ home and the child was safely cared for there.3

She similarly argues termination was not in the best interests of the child

because she and the child share a bond and live with the maternal grandparents.


3
  Under section 232.116(1)(h), the court may terminate the rights of a parent to a child
if: (1) the child is three years old or younger, (2) the child has been adjudicated a CINA
under section 232.96, (3) the child has removed from the physical custody of the child’s
parents for at least six of the last twelve months or the last six consecutive months and
any trial period in the home has been under thirty days, and (4) “[t]here 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.” “At the present time” refers
to the time of the termination hearing. See In re A.M., 843 N.W.2d 100, 111 (Iowa
2014). It is not disputed that the first three elements were met. The child was under
three, was adjudicated a CINA pursuant to section 232.96, and was removed from the
mother’s physical custody since February 2016.
                                          6


She points out that guardianship was a viable alternative to termination of her

rights. She also questions whether the court should have granted her additional

time “to correct and resolve the [DHS’s] concerns,” noting her intellectual

disability hindered her ability to meet the statutory time-frame for reunification set

forth in section 232.116(1)(h) and quoting language from a federal agency

bulletin concerning working with parents with disabilities.           She maintains

reasonable efforts for reunification were not provided to her and the DHS “lulled

[her] into believing that she was adequately progressing.” She concluded that

there was simply no evidence in the record to support termination of her parental

rights. While we disagree with most of these assertions, we do believe creation

of a guardianship was appropriate under the facts of the case.

       First, we dismiss the mother’s claims that reasonable services were not

provided to her. Though the DHS “has an obligation to make reasonable efforts

toward reunification, . . . a parent has an equal obligation to demand other,

different, or additional services prior to a permanency or termination hearing,”

and if the parent does not make a timely request, the issue is not preserved for

our review, as is the case here. See In re C.H., 652 N.W.2d 144, 148 (Iowa

2002); In re A.A.G., 708 N.W.2d 85, 91 (Iowa Ct. App. 2005). The mother made

no such requests, and, in any event, the record demonstrates the DHS provided

adequate services in this case.

       Next, a child’s protection “is one of the most well-established duties and

public policies” of this state, and, in relation thereto, it “has a duty to assure that

every child within its borders receives proper care and treatment, and must

intercede when parents fail to provide it. Both [the DHS] and the juvenile court
                                          7


have the important function of protecting children who are in need of assistance.”

In re A.M., 856 N.W.2d 365, 376 (Iowa 2014) (alterations, internal citations, and

quotation marks omitted).     “[L]ower mental functioning alone is not sufficient

grounds for termination,” but it is a relevant consideration if it affects the child’s

well-being. A.M., 843 N.W.2d at 111; see also In re Wardle, 207 N.W.2d 554,

563 (Iowa 1973) (“Ordinarily, mental disability in a parent does not operate in a

vacuum so far as the best interest and welfare of his child is concerned but is

usually a contributing factor in a person’s inability to perform the duties of

parenthood according to the needs of his child.”).

       It is true that the mother did not sexually assault the child and could not

foresee the child would be so assaulted by the father, but that is not the issue.

The record reveals that even after the DHS became involved, the mother still did

not recognize the danger of leaving her child with someone who was intoxicated.

The mother did not believe—or did not want to believe—the father did what he

did, despite the evidence before her. She even continued to express a desire for

her and the child to be in his life after the assault. These positions call into

question the mother’s overall decision-making ability, her ability to recognize

threats to ensure the child’s safety, and her ability to put the child’s needs before

her own. The mother’s statements, coupled with everyday issues that existed at

the beginning of the case when she was on her own, like whether she was

properly feeding the child or understood she needed to continuously monitor the

child’s diaper situation, is evidence that the child could not be safely returned to

the mother’s care on her own, and we do not find any evidence in the record that

the situation can be improved with additional services and time. There is no
                                           8


doubt that the mother loves the child and wants to be a good caregiver, but the

record simply does not show that the mother has the ability to do it by herself.

       Ultimately, the mother seems to concede that, with her parents’ help, she

is able to safely care for the child. Though this is a close call, for the following

reasons, we agree with the mother that a guardianship should have been

established. And in doing so, we are not critical of the juvenile court, for we have

said time and time again that a guardianship is not a legally preferable alternative

to termination. See, e.g., In re N.M., No. 17-0054, 2017 WL 1088119, at *3 (Iowa

Ct. App. Mar. 22, 2017) (citing In re L.M.F., 490 N.W.2d 66, 67-68 (Iowa Ct. App.

1992)); In re S.C., No. 15-1912, 2016 WL 903029, at *4 (Iowa Ct. App. Mar. 9,

2016) (same); In re K.B., No. 15-1685, 2016 WL 146707, at *4 (Iowa Ct. App.

Jan. 13, 2016) (same); In re C.B., No. 14-0704, 2014 WL 3513241, at *2 (Iowa

Ct. App. July 16, 2014) (same).

       After a termination-of-parental-rights hearing, a number of options are

available to the juvenile court. See Iowa Code § 232.117. If the court finds the

grounds for termination alleged were not established, it must dismiss the

termination-of-parental-rights petition.       See id. § 232.117(2).    If the court

determines “facts sufficient to sustain the petition have been established,” the

court can either “order parental rights terminated” or it can “adjudicate the child to

be a [CINA] and . . . enter an order in accordance with the provisions of

section . . . 232.104.” Id. § 232.117(3), (5).

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

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

a suitable person” or transferring “custody of the child to a suitable person for the
                                         9

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 child’s best interests and that the child could not be

returned to the child’s home even though “[s]ervices were offered to the child’s

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

§ 232.104(3)(a)-(c).

      “As in all juvenile proceedings, our fundamental concern is the best

interests of the child.” In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). In deciding

what is in the child’s best interests, we follow the framework established in

section 232.116(2), giving “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.” See also

In re P.L., 778 N.W.2d 33, 37 (Iowa 2010). But, “[e]ven though the court may

determine that termination is appropriate under section 232.116(2), the court

need not terminate a parent’s parental rights if any of the circumstances

contained in section 232.116(3) exist.”      Id.   These circumstances include a

relative having “legal custody of the child” or a determination that termination of

the parent’s parental rights would be detrimental to the child because of the

closeness of the parent-child relationship. See Iowa Code § 232.116(3)(a), (c);

see also A.M., 843 N.W.2d at 113.

      During the CINA case, the DHS case worker and the case service

providers, including the CASA and guardian ad litem, voiced no concern with the

child’s placement in the legal custody of her maternal grandparents.           At a
                                        10


service-provider meeting at the end of August 2016, concurrent placement

options for the child were discussed, including creating a guardianship with the

maternal grandparents.      Despite the child’s placement with the maternal

grandparents, where she and the mother had lived since February 2016, the

DHS recommended that the concurrent placement option be termination of

parental rights and adoption of the child, rather than creation of a guardianship,

should reunification efforts fail.   Notably, the DHS caseworker, the service

provider, and CASA each noted in their reports at that time that the maternal

grandparents had said they believed the mother was capable of caring for the

child on her own. The maternal grandparents had even stated that the mother

was the primary caregiver of the child in their home. Nevertheless, there was no

suggestion at that time that the child was not safe in the care of the maternal

grandparents nor was it recommended that the child be placed elsewhere.

       At the May 2017 termination-of-parental-rights hearing, no specific safety

concerns were identified about the child’s placement with the maternal

grandparents.   The CASA testified she believed the child was safe with the

maternal grandparents with supervision by the court and the DHS, but she

expressed there was “emotional turmoil” in the maternal grandparents’ home that

she believed was detrimental to the child. Although the CASA had not requested

a change in the child’s placement during the case, the CASA at the termination-

of-parental-rights hearing questioned the child’s safety with the maternal

grandparents, testifying she knew “there was some abuse” in the maternal

grandparents’ home in the past. However, the social history report stated neither

grandparent had “a history of any mental health or criminal behaviors.”
                                        11


Additionally, the maternal grandparents’ home had been approved for placement

following a home study.

      Generally, permanency orders are not preferred over the termination of

parental rights. See L.M.F., 490 N.W.2d at 67-68 (citing In re M.W., 458 N.W.2d

847, 850 (Iowa 1990) (“Although Iowa Code section 232.116(2) suggests that the

primary consideration in termination cases is ‘the physical, mental, and emotional

condition and needs of the child,’ the legislature, in cases meeting the conditions

of section 232.116(1)(e)(1), (2), and (3) (1989), has made a categorical

determination that the needs of a child are promoted by termination of parental

rights.” (emphasis added)). But see In re S.J., 451 N.W.2d 827, 832 (Iowa 1990)

(“Termination is an outcome of last resort.”). But based upon the facts of the

case, including the placement of the child with the maternal grandparents for

more than a year without incident or safety concerns, we do not find the child’s

best interests are served by termination of the mother’s parental rights. This is

not a case where the child’s future placement will remain in limbo if the mother’s

parental rights are not terminated. The maternal grandparents have been there

for the child all of her life and there is no indication that would change if the

mother’s parental rights are terminated. Similarly, the child’s stability and long-

term interests will not be affected if the mother’s rights are not terminated and a

guardianship is created.      See also, e.g., Josh Gupta-Kagan, The New

Permanency, 19 U.C. Davis J. Juv. L. & Pol’y 1, 12 (2015) (“Empirical research

has demonstrated that options which do not require terminations lead to

caregiving relationships that last just as long as traditional adoptions.     This

continuum of equally permanent options suggests that moving to permanency
                                          12

should not by default require terminations.”); Randi Mandelbaum, Re-Examining

and Re-Defining Permanency from a Youth’s Perspective, 43 Cap. U. L. Rev.

259, 259-60 (2015) (“Federal and state laws mandate that efforts be made to find

permanent families for all children placed in foster care, first, by reunifying them

with their birth families or, when this is not possible, by securing alternate families

through adoption or guardianship.” (emphasis added)).

       The mother and child love each other and share a close bond. The child

also shares a close bond with her maternal grandparents.              We agree the

evidence shows the mother cannot care for the child alone, but this case is not

an ordinary case where there is no parental involvement or addiction issues to

overcome. See, e.g., A.M., 843 N.W.2d at 111 (noting the case did “not present

any of the usual precursors to termination of parental rights, such as physical or

emotional abuse of the child, substance abuse by one or both parents, domestic

abuse, parental criminal conduct, or even overt neglect”).          This child has a

mother that loves her, grandparents in her life, and, at the time of the termination-

of-parental-rights hearing, the child was happy and flourishing in the maternal

grandparents’ care.

       Upon our de novo review, considering the matters directed by Iowa Code

section 232.116(2), we conclude termination of the mother’s parental rights is not

in the child’s best interests. We also find that two exceptions under section

232.116(3)—specifically paragraphs (a) and (c)—apply to negate the need for

termination of the mother’s parental rights under the facts of this case. We

therefore remand the case back to the juvenile court to enter an order

transferring guardianship and custody of the child to the maternal grandparents
                                       13


pursuant to Iowa Code section 232.104(2)(d)(1).      The juvenile court should

review this order annually as mandated by section 232.104(7)(a), or more often if

needed, to ascertain “whether the best interest of the child is being served.”

Alternatively, the juvenile court may close the CINA case and transfer

“jurisdiction over the child’s guardianship to the probate court” as described in

section 232.104(7)(b). We affirm in all other respects, and we do not retain

jurisdiction.

       REVERSED AND REMANDED WITH DIRECTIONS.

Vaitheswaran, P.J., concurs; Bower, J., dissents.
                                          14


BOWER, Judge (dissenting).

         I respectfully dissent.   I would affirm the termination of the mother’s

parental rights, finding that termination is in the long-term best interests of the

child.

         I take no issue with the cases cited by the majority and the holding of each

case as it relates to those with special needs and those who need additional

services in becoming better parents, but I do take issue with the underlying facts

of this case and the future stability this child will have if the mother’s parental

rights are not terminated.

         The child’s mother is described by those who have interviewed, treated,

and counselled her as able to read and understand conversational English at a

fourth grade level. The mother is committed to a relationship with the father of

the child, who is serving a life sentence for sexual abuse in the first degree for

assaulting the child, who was an infant at the time and required several surgeries

to repair the child’s anus and genitals. The abuse occurred after the mother left

the child with the father, who she knew to be drunk. She continues to believe it is

acceptable to leave a child with an intoxicated person as that individual could

decide how to take care of the child. The mother continues to see the father

while he is incarcerated and minimizes his actions. She has even advised others

that she does not believe the father committed the offense or at least not to the

degree of seriousness with which others have shared. These few statements,

directly attributable to the mother, convince me that the majority is wrong.

According to the treatment professionals, after specifically tailoring services to
                                          15


the mother, she can still not care for the child due to her intellectual limits and her

beliefs shared above.

       What would normally be a termination of parental rights has now become

a guardianship with the maternal grandparents. We have continually held and

have said time and time again that a guardianship is not a legally preferable

alternative to termination. See, e.g., In re N.M., No. 17-0054, 2017 WL 1088119,

at *3 (Iowa Ct. App. Mar. 22, 2017) (citing In re L.M.F., 490 N.W.2d 66, 67-68

(Iowa Ct. App. 1992)); In re S.C., No. 15-1912, 2016 WL 903029, at *4 (Iowa Ct.

App. Mar. 9, 2016) (same); In re K.B., No. 15-1685, 2016 WL 146707, at *4 (Iowa

Ct. App. Jan. 13, 2016) (same); In re C.B., No. 14-0704, 2014 WL 3513241, at *2

(Iowa Ct. App. July 16, 2014) (same). To their credit, the maternal grandparents

have helped with the child.      However, I cannot look past statements directly

attributable to them that their daughter can safely parent this child. In addition to

other challenges in their household, including odd working hours and a special-

needs adult son who requires regular help, they continue to advocate for their

daughter to raise this child on her own at some point in the future. While their

statements show loyalty and encouragement, I question their own decision-

making. The longer the time the child has with the mother, the more difficult

termination will be on all parties, as the bond between all will grow stronger.

       Instead of establishing a guardianship in this matter requiring continued

efforts, supervision, and court intervention, the child deserves a fresh start with

an adoptive family who will provide her with a normal childhood she so deserves,

as opposed to providing services to the mother and child until such a time that

the child can become more independent.
