                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1984
                               Filed April 15, 2020


IN THE INTEREST OF L.T. and L.T.,
Minor Children,

T.B., 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.



      Bryan J. Tingle, Des Moines, for appellant mother.

      Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

      Kayla Stratton of Juvenile Public Defender, Des Moines, attorney and

guardian ad litem for minor children.



      Considered by May, P.J., Schumacher, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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MAHAN, Senior Judge.

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

in 2013 and 2016.1 She contends (1) the State failed to prove the grounds for

termination cited by the juvenile court; (2) termination was not in the children’s best

interests; and (3) the children’s placement with the father should have precluded

termination of her parental rights. We affirm.

I.     Background Facts and Proceedings

       This family most recently came to the attention of the department of human

services in January 2018, upon reports of physical abuse of the children by the

mother. The mother was intoxicated and caring for L.T., L.T., and J.T.2 while the

father was at work when she started to “go crazy” and yell at the children. The

mother shoved, kicked, and punched J.T., and she held J.T. down in bath water

by his neck.     J.T. had bruises and marks from the incident.           There were

unexplained marks on L.T. and L.T. as well. The father came home from work,

called the police, and the mother was arrested. A child abuse assessment resulted

in founded reports for physical abuse and failure to provide proper supervision. A

no-contact order was entered prohibiting the mother from having contact with the

children. A no-contact order that had already been in place for J.T. was extended.




1 The parental rights of children’s father were not terminated. The children were
placed in a guardianship with the father. The parents were previously married.
They are now divorced but continue to be in a relationship.
2 The mother was involved with the department beginning in 2009, due to mental-

health concerns, violence toward the father, and adoption scams (“pretending to
be pregnant to prospective adoptive parents”). In 2012, the mother’s parental
rights were terminated to J.T., born in 2008, while she was in prison on charges
for filing a false report and perjury.
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      The mother reported she had been diagnosed with bipolar disorder,

borderline personality disorder, obsessive-compulsive disorder, and post-

traumatic stress disorder. The mother stated that she discontinues her mental-

health medication when she feels it is unnecessary, and that she self-medicates

with alcohol when she goes off her medication. The mother admitted to “binge

drinking” when “things are wrong.” The father acknowledged the mother was not

taking her medication and had been “getting unstable.”

      The children were adjudicated in need of assistance. The no-contact order

with regard to L.T. and L.T. was subsequently modified to allow the mother to have

supervised contact with them at the department’s discretion. The mother began

supervised visits with L.T. and L.T. in May when she was released on pretrial

supervision. In July, the mother pled guilty to a charge of child endangerment

stemming from the incident in January. Within a few months, in August 2018, the

mother attempted suicide by overdosing on her medication, and she was

hospitalized for several weeks. Upon her release from the hospital, the mother

turned herself in on an outstanding warrant.3 Since then, the mother has had daily

phone contact with L.T. and L.T.

      The State filed a petition to terminate the mother’s parental rights in

December 2018. The termination hearing took place over two days in April and

May 2019. The mother was incarcerated at the Iowa Correctional Institute for

Women in Mitchellville, with a possible release date in July or August 2019. The



3 The mother was charged with operating while intoxicated and two counts of false
reporting. Upon her arrest, she was admitted to the hospital due to her high level
of intoxication.
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mother testified her plan was to “parole to the House of Mercy,” where “they have

a bed ready.” The mother had recently been cleared for in-person visits with the

children at the prison, but no visits had taken place yet.4 She received medication

management and felt her new medication was “working amazing.”             She was

engaging in individual therapy and had participated in several therapeutic

programs in prison, which “teach[] you how to deal with your emotions, you know,

your impulses” and “teach[] you to think before you act, what are your values.” She

also took an alcohol-related class. The mother received work-related training, was

certified to operate a forklift, and was to receive assistance in finding employment

upon her release from prison.

       The mother requested additional time for reunification. She believed the

children could spend time with her at House of Mercy “[t]hree months down the

line, a couple months” after she established herself there.            The mother

acknowledged she “can’t go home right now” but stated she and the father had

been together “for 18 years” and she believed the no-contact order on J.T. could

be modified to allow her to live in the family home again. The father testified that

he would allow the mother to see the children “if I think she is safe,” but he

questioned her ability “to stay sober.” The department and guardian ad litem

recommended termination of the mother’s parental rights.




4 The department caseworker testified she had submitted the visitation form to
family safety, risk, and permanency services and had asked the father to make an
appointment for the older L.T. to see a victim-advocacy therapist, which were
prerequisites to establishing visitation at the prison due to the mother’s child-
endangerment charge and the no-contact order in place between the mother and
the children.
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       Following the termination hearing, the court entered its order terminating

the mother’s parental rights pursuant to Iowa Code section 232.116(1)(d), (f), (g),

and (h) (2018). The mother appeals.

II.    Standard of Review

       Appellate review of termination-of-parental-rights proceedings is de novo.

In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our primary consideration is the

best interests of the children, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the

defining elements of which are the children’s safety and need for a permanent

home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).

III.   Discussion

       The mother challenges the sufficiency of the evidence supporting the

grounds for termination cited by the juvenile court. We may affirm if we find clear

and convincing evidence to support any of the statutory provisions. See In re A.B.,

815 N.W.2d 764, 774 (Iowa 2012).          We will focus on Iowa Code section

232.116(1)(d), which requires the State to show:

              (1) The court has previously adjudicated the child to be a child
       in need of assistance after finding the child to have been physically
       or sexually abused or neglected as the result of the acts or omissions
       of one or both parents . . . .
              (2) Subsequent to the child in need of assistance adjudication,
       the parents were offered or received services to correct the
       circumstance which led to the adjudication, and the circumstance
       continues to exist despite the offer or receipt of services.

       With regard to this subsection, the mother contends, “Contrary to the

Court’s findings [she] was in fact taking advantage of the services offered to her,

although limited, to correct the circumstances which led to the adjudication and as

such the State failed to prove this element 2.” Her argument focuses on her claim
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that she “took advantage of every service available” to her but the services were

inadequate to allow her to demonstrate her parenting skills and “continue working

on her areas of need.”

         In order to determine what circumstances led to the adjudication and

required correction, we look to the adjudication order. The juvenile court made

findings of fact, including:

                2. There is clear and convincing evidence to support the
         allegations of the petition(s) filed January 25, 2018 and the children
         are adjudicated in need of assistance pursuant to Iowa Code
         section(s) 232.2(6)(b) and (6)(c)(2) and the aid of the Court is
         required.
                3. The Court makes the following specific findings of fact:
         there is a founded [child protective services assessment] against the
         mother for physical abuse and denial of critical care regarding the
         children; counsel for mother takes no position as the children’s
         mother has decided not attend/be transported; mother remains in
         custody due to the criminal charges.

         We have examined the child protective services assessment identified in

the findings of fact. The report was founded as to both children for physical abuse

and failure to provide proper supervision.5 The report stated:

         [The mother] has mental health issues that are not adequately being
         addressed. She is using alcohol in place of medication. She was
         under the influence of alcohol as a sole caretaker and became
         physically aggressive with the children. All three child[ren] sustained
         injuries from [the mother]. [The mother] denied being able to recall
         what transpired with her children and how they sustained injuries.

         Following this incident, the mother was arrested and jailed on charges of

child endangerment. As the mother acknowledges, she spent these proceedings

in and out of jail and she was incarcerated at the time of the termination hearing.

However, contrary to the mother’s assertion, she was offered many services to


5   The report was also founded on these bases as to J.T.
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correct the circumstances which led to the children’s adjudication, including, but

not limited to, a psychological evaluation, therapy, mental-health treatment,

medication management, an alcohol-related class, and supervised visitation.

       Despite those services, the circumstances which led to adjudication

continued to exist at the time of termination. See Iowa Code § 232.116(1)(d)(2).

The mother’s therapist opined that, given her considerable mental-health needs,

the mother should be closely monitored for an extended time prior to any possible

reunification due to safety concerns for the children. The department caseworker

opined that during the time since removal, the mother “has had minimal time of

stability to where she showed that she was able to parent her children and to

maintain a stable lifestyle,” and “[i]t is not fair for these children to continue to have

to wait for their mother to get herself into a position where she would be able to

parent them on a consistent basis.” We agree. Cf. In re T.C., No. 13-1023, 2013

WL 4774049, at *4 (Iowa Ct. App. Sept. 5, 2013) (“T.C. was adjudicated [child in

need of assistance] due to drug abuse and violence by his parents. The father has

made no progress to correct this situation. Termination under Iowa Code section

232.116(1)(d) is supported by clear and convincing evidence.”).

       The juvenile court further observed, “The mother fails to understand the

connection between her behaviors, her history, and her mental health. It is clear

that, even with the appropriate, intensive therapy, she would not be safe to parent

her children in six months.” Cf. In re T.C., 489 N.W.2d 53, 55–56 (Iowa Ct. App.

1992) (noting a parent’s failure to admit and address her psychological and

substance-abuse problems constitutes a failure to cooperate in correcting the
                                          8


circumstances that led to the adjudication). We concur in the court’s finding that

Iowa Code section 232.116(1)(d) was satisfied.

       We turn to the children’s best interests. The mother contends termination

of her parental rights is not in the best interests of the children because “[t]he

children obviously know who [she] is, she apparently will be allowed to remain a

part of the children’s lives by the father and by legally terminating her parental

rights, this will only serve to confuse and possibly continually traumatize the

children as they grow up.” Indeed, the father testified he would allow the mother

to be around the children “if she is safe and sober,” but he also stated “[i]t depends

on her mental state” and he “wouldn’t break any no-contact orders.” The parents

have a lengthy history, and the juvenile court was aware the father had allowed

the mother to be around J.T., to whom her parental rights had been terminated.

When asked if the court should decline to terminate the mother’s parental rights

and allow the department to stay involved with the family, the department

caseworker responded:

       No. . . . Because there’s a no-contact order. So DHS is not going to
       stay involved for the next four to five years to be able to monitor
       whether or not [the mother] and [the father]—if they’re able to do this.
       I think that at some point in time these children deserve to have
       normal lives without DHS coming to see them, without [family safety,
       risk, and permanency workers] coming to see them. They have a
       right to be able to be kids, and at some point in time [the father] is
       going to have to be able to protect them. And so, you know, if we
       were to terminate and she were to be allowed to come back into the
       house by [the father], it would then be on [the father]. And I think that
       having that responsibility, [the father] would be more likely to be a
       little more protective instead of knowing that if she were to come in,
       if this were to happen again, [the mother] would leave the home and
       we would go through all of this again.
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       The mother also contends termination of her parental rights will position the

father as the children’s “sole provider” and “effectively cut off an avenue of financial

support for the children as [she] is entitled to federal Social Security benefits due

to disabilities.” But the mother testified that she believed “getting disability . . . led

to my depression, which led to my drinking, which led to my downfall . . . because

I didn’t have a life outside of my house.” The mother expressed her desire “to get

out there and work.” We commend the mother’s goals and progress to being self-

sufficient, and we cannot conclude financial interests preclude termination of

parental rights. Stability and permanency are in the children’s best interests.

Having given “primary consideration to the child[ren]’s safety, to the best

placement for furthering the long-term nurturing and growth of the child[ren], and

to the physical, mental, and emotional condition and needs of the child[ren],” Iowa

Code § 232.116(2), we conclude termination is in the children’s best interests.

       The mother also argues that the court should have applied an exception to

prevent termination because “the father maintained care and custody of the

children throughout the proceedings.” See id. § 232.116(3)(a) (providing that the

juvenile court need not terminate parental rights if “[a] relative has legal custody of

the child[ren]”). The exceptions to termination of parental rights found under

section 232.116(3) are permissive, not mandatory. In re A.S., 906 N.W.2d 467, 45

(Iowa 2018). “An appropriate determination to terminate a parent-child relationship

is not to be countermanded by the ability and willingness of a family relative to take

the child[ren].” In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). The court considered

the fact that the children were placed in the sole custody of the father but found it

did not preclude termination “given the older children’s continued fears, and [the
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mother’s] continued lack of control of her behavior.” We concur in the court’s

finding.   We conclude termination is in the children’s best interests, and no

permissive statutory exception should be applied to preclude termination. We

affirm the decision of the juvenile court to terminate the mother’s parental rights.

       AFFIRMED.
