                     IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1595
                            Filed November 21, 2018


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

S.C., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

District Associate Judge.



       A mother appeals the termination of her parental rights. AFFIRMED.




       Nancy L. Pietz, Des Moines, for appellant mother.

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

Attorney General, for appellee State.

       Karl Wolle of Juvenile Public Defender Office, Des Moines, guardian ad

litem for minor child.



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

       Sarah appeals the termination of her parental relationship with seven-year-

old T.J. She argues the State failed to prove the statutory grounds for termination

by clear and convincing evidence; termination would be detrimental to T.J.

because of the parent-child bond; and termination is not necessary because T.J.

is living with Sarah’s mother. After reviewing the record anew,1 we reach the same

conclusions as the juvenile court. We thus affirm the termination of Sarah’s

parental rights.

       The family first came to the attention of the Department of Human Services

(DHS) in December 2016 when the DHS received reports Sarah and T.J.’s father,

Travis, were using methamphetamine while caring for T.J. Travis also assaulted

Sarah in T.J.’s presence. Both parents have a long history of substance abuse

and mutual domestic violence.

       The court ordered the DHS to remove T.J. from his parents’ care. The DHS

placed T.J. with his maternal grandmother, Vicki, where he has remained

throughout this case. At the time of removal, Sarah and Travis tested positive for

methamphetamine and opiates.               Travis reported he and Sarah used

methamphetamine daily. Sarah reported Travis struck her in front of T.J. T.J. also

said he saw his dad hit his mom. This incident resulted in a founded child abuse

assessment against Sarah and Travis, as well as criminal charges against Travis,




1
  Appellate review of termination-of-parental-rights proceedings is de novo. In re A.S.,
906 N.W.2d 467, 472 (Iowa 2018). “We are not bound by the juvenile court’s findings of
fact, but we do give them weight, especially in assessing the credibility of witnesses.” Id.
(quoting In re A.M., 843 N.W.2d 100, 110 (Iowa 2014)). Our primary consideration is the
best interests of the child. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).
                                         3


who already had a lengthy criminal record. The court ordered the parents to attend

substance abuse treatment and individual and couples therapy to address their

drug abuse, mental health, and domestic violence issues.

       For the next year, the DHS offered services to the parents.            Sarah

completed substance abuse treatment and tested negative for drugs. Sarah and

Travis attended couples therapy together. But Travis was inconsistent in his

substance abuse treatment and mental health therapy, impeded somewhat by

repeated stints in jail on unrelated charges. In January 2018, the court allowed a

six-month extension for the parents to continue working toward reunification. In

February 2018, despite informing the DHS their relationship was over, Sarah and

Travis resumed living together.

       At the time of the termination hearing, the DHS reported Travis continued

to take prescribed narcotics for various injuries despite his addiction to opiates.2

Because of these prescriptions, he gave several positive drug tests. The tests also

revealed substances not accounted for by his prescriptions. He did not complete

substance abuse treatment, and denied on the stand that he had a substance

abuse problem. He also testified he had only been high around T.J. a couple times,

contradicting his and Sarah’s earlier admissions.       Travis further denied ever

assaulting Sarah.




2
  DHS workers reported concerns Travis may not have informed his medical providers of
his addiction history; they also suggested Travis engaged in drug-seeking behavior
through self-injury.
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       Sarah showed more promise in her efforts to regain custody.               She

successfully completed drug treatment and maintained her sobriety. She was

generally meeting case expectations and court orders.

       But domestic violence concerns continued to cloud Sarah’s prospects for

reunification. At the termination hearing, Sarah recanted earlier statements that

Travis assaulted her in December 2016. Originally, she reported Travis punched

and slapped her, giving her a swollen eye. But at the hearing she testified they

were mutually pushing and shoving each other and she received the eye injury

from a fall. Sarah also testified she believed Travis had adequately addressed his

substance abuse and domestic violence issues, despite his failure to complete any

treatment. She did not plan for Travis to move out if T.J. was returned to her care.

In fact, she testified Travis did not pose a safety risk to her or T.J.

       As for T.J., DHS workers agreed he had a strong attachment to his mother.

T.J. has special needs—attention deficit disorder and a possible diagnosis on the

autism spectrum. He has an individualized education plan for learning delays. To

address those delays, Vicki hired a tutor. Vicki testified T.J. is now thriving in her

care. He attends therapy to address the trauma he experienced while living with

Sarah and Travis. Vicki testified Sarah and Travis were not ready to resume

custody of T.J. DHS workers believed Vicki showed the willingness, preparation,

and protective capacity necessary to be a successful long-term placement.
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       The State petitioned to terminate parental rights. Following a hearing, the

court ordered termination of both Sarah and Travis’s parental rights under Iowa

Code section 232.116(1)(f) (2018).3 Only Sarah appeals.

       Sarah first contends the State failed to prove the grounds for termination

under Iowa Code section 232.116(1)(f), which requires proof of the following

elements:

              (1) The child is four years of age or older.
              (2) The child has been adjudicated a child in need of
       assistance pursuant to section 232.96.
              (3) The child has been removed from the physical custody of
       the child’s parents for at least twelve of the last eighteen months, or
       for the last twelve consecutive months and any trial period at home
       has been less than thirty days.
              (4) There is clear and convincing evidence that at the present
       time the child cannot be returned to the custody of the child’s parents
       as provided in section 232.102.

Sarah challenges only the fourth element—arguing the State did not show by clear

and convincing evidence T.J. could not be returned to her custody. She contends

she complied with DHS expectations to attend substance abuse treatment and

therapy. She emphasizes she maintained her sobriety throughout the case.

       We recognize Sarah made strides in substance abuse treatment and DHS

workers noted no safety concerns during her visits with T.J. But her continued

cohabitation with Travis presents a serious risk to their son.         Travis did not

complete substance abuse treatment or address his domestic violence history. So

those issues remain threats to T.J.’s safety—particularly because Sarah refuses

to acknowledge any risk, instead believing Travis has put those issues behind him.



3
  The petition alleged termination was also appropriate under subparagraph (l), but the
juvenile court found the State failed to prove that ground.
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       On top of her blind faith in Travis going forward, Sarah has engaged in

revisionist history. She now denies any domestic abuse in their relationship. Her

denial and lack of insight present a danger she will fall into old patterns with Travis.

Sarah and Travis also have a history of abusing drugs together. Their continued

cohabitation increases her risk of relapse. Placing T.J. back in that environment

risks harm to his safety and well-being. The State presented clear and convincing

proof T.J. cannot be returned to Sarah at this time. Sarah already received one

six-month extension to resume custody. We cannot ask T.J. “to continuously wait

for a stable biological parent, particularly at such [a] tender age.” In re D.W., 791

N.W.2d 703, 707 (Iowa 2010). So we affirm the juvenile court’s conclusion that

the evidence supports termination under paragraph (f) of section 232.116(1).

       Sarah next contends termination is not in T.J.’s best interests and would

result in emotional and psychological harm.4 In determining whether termination

is in a child’s best interests, we “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.” Iowa

Code § 232.116(2). We agree the evidence shows T.J. is attached to Sarah. But

the record does not support her claim terminating her parental rights would cause

him emotional or psychological harm. He has been out of her custody for two

years and is thriving with the appropriate therapy and care supplied by his

grandmother.      Returning T.J. to live with his father whose rights have been


4
  Sarah mentions T.J.’s bond with her as part of the best-interests argument. But she
does not invoke the statutory exception contained in section 232.116(3)(c), based on the
closeness of the parent-child relationship. So we analyze her claim only under section
232.116(2).
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terminated and his mother who lacks the protective capacity to guard against future

violence would be inconsistent with the child’s best interests.

         Finally, Sarah contends the court should have decided termination was not

necessary because the DHS placed T.J. with his maternal grandmother. The court

“need not terminate” parental rights if the court finds, among other factors, a

relative has legal custody of the child.        Id. § 232.116(3)(a).     This factor is

permissive, not mandatory, and at the discretion of the court. In re A.S., 906

N.W.2d at 476.5 The child’s best interests remain the first consideration. Id. The

juvenile court considered this factor and determined the circumstances did not

support its application. We agree. Placement with his grandmother should not

save the parental relationship under these circumstances. See A.M., 843 N.W.2d

at 112–13 (concluding child placed with maternal grandparents was not in their

“legal custody”). Finally, while Sarah is likely to continue to have some contact

with T.J. through the grandmother, the safety concerns posed by Sarah’s

continued relationship with Travis suggest termination should proceed.

         AFFIRMED.




5
    Our review remains de novo. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010).
