                     IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0020
                              Filed March 20, 2019


IN THE INTEREST OF N.S. and N.S.,
Minor Children,

K.K., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Stephanie Forker

Parry, District Associate Judge.



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




       John S. Moeller of John S. Moeller, P.C., Sioux City, for appellant mother.

       Thomas J. Miller Attorney General, and Meredith L. Lamberti, Assistant

Attorney General, for appellee State.

       Meret Thali of Juvenile Law Center, Sioux City, attorney and guardian ad

litem for minor children.




       Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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BOWER, Judge.

       A mother appeals the juvenile court order terminating her parental rights.

The mother claims the children could be returned to her care at the time of the

hearing or in the near future. We find the State established by clear and convincing

evidence the children could not be returned to the mother, and termination is in the

children’s best interests.

       I.     Background Facts & Proceedings

       K.K. is the mother of N.M.S., born in 2014, and N.J.S., born in 2016. On

January 29, 2017, the mother was arrested for possession of methamphetamine

in the home and two counts of child endangerment. The children’s father, A.S.,

was in prison at the time. The parents have a history of domestic violence and

drug use.

       The children remained in the mother’s custody subject to protective

supervision by the Iowa Department of Human Services (DHS). The mother and

children moved in with the mother’s father, then later moved to her mother’s home.

On March 27, the children were adjudicated in need of assistance (CINA) under

Iowa Code section 232.2(6)(a), (c)(2), and (n) (2017). In April, the infant tested

positive for exposure to methamphetamine.

       The mother pleaded guilty to a charge of child endangerment and received

a suspended sentence. The mother sporadically participated in services including

drug testing, mental-health treatment, substance-abuse evaluations and

treatment, and parenting classes. The mother often showed initial interest in a

service, but then failed to follow through with the programming. The mother told

workers she did not feel she needed treatment and she did not have a substance-
                                        3


abuse problem. The father was paroled to Minnesota in August, and the parents

began weekend visits.

      One morning in early September, the older child, then two years of age, was

found underdressed and alone across the street from the home while the mother

slept; officers found the door to the home wide open. The mother admitted to

relapsing on methamphetamine that week and later admitted to having used

methamphetamine and marijuana weekly between January and September. The

children were placed with the maternal grandmother with a safety plan. The

mother continued to live in the home while clean and sober, but she was no longer

allowed unsupervised care of the children. On January 3, 2018, the court moved

the children to the custody of DHS, which placed them with the maternal

grandmother.

      In November 2017, the mother was accepted into family treatment court but

was released in January 2018 due to noncompliance.           A domestic-violence

incident occurred between the parents in late December. The mother began

missing appointments with her probation officer and admitted using marijuana and

methamphetamine. During a traffic stop of the parents in February, marijuana,

methamphetamine, and drug paraphernalia were found on the mother’s person

and in the vehicle. The drugs were attributed to the father and he was arrested

and charged. In March, the father pleaded guilty to two felony drug offenses and

was sentenced to consecutive prison sentences.

      In early March, the mother attended intensive outpatient treatment. In April,

she served twenty days in jail for a probation violation, then relapsed again upon

release. In early July, the mother entered an inpatient treatment center and
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requested temporary custody of the children.            While there, she completed a

parenting class. On August 20, the mother moved to a half-way house and was

still there at the time of the termination hearing. She obtained employment and

was still living at the half-way house where the children could not join her at the

time of the termination hearing.

        On August 20, the State filed a petition to terminate the parents’ rights. On

October 4, the court held a dispositional review hearing on the mother’s motion to

modify dispositional order, and hearing on the State’s petition to terminate parental

rights. The court heard testimony from a Family Safety, Risk, and Permanency

Services (FSRP) provider; the mother; the mother’s current therapist; and the

father testified via telephone. At the time of the hearing, the mother had been

sober over three months and was on a waiting list for an apartment offered by the

treatment program. The FSRP provider and mother both testified the parents were

both more likely to relapse when around each other. The mother had asked the

father not be told where she was during her treatment. However, while the mother

was in the half-way house and the father in prison they remained in telephone

contact, but both parents state they are not in a relationship. The father testified

he expected to parole in 2019 after completing treatment. The guardian ad litem

for the children told the court termination of the parents’ rights is in the children’s

best interests.

        On December 31, the court terminated the mother’s parental rights pursuant

to section 232.116(1)(h) and (l) (2018).1 The mother appeals.



1
    The father’s parental rights to both children were also terminated. He does not appeal.
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       II.     Standard of Review

       We review termination-of-parental-rights cases de novo. In re A.B., 815

N.W.2d 764, 773 (Iowa 2012). “There must be clear and convincing evidence of

the grounds for termination of parental rights.” In re M.W., 876 N.W.2d 212, 219

(Iowa 2016). Where there is clear and convincing evidence, there is “no serious

or substantial doubts as to the correctness or conclusions of law drawn from the

evidence.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010) (citation omitted). The

paramount concern in termination proceedings is the best interest of the child. In

re J.E., 723 N.W.2d 793, 798 (Iowa 2006). “We give weight to the juvenile court’s

factual findings, especially when considering the credibility of witnesses, but we

are not bound by them.” In re H.S., 805 N.W.2d 737, 745 (Iowa 2011).

       III.    Analysis

       The mother challenges the court’s conclusion the children could not be

returned to her custody pursuant to section 232.116(1)(h) and (l). “When the

juvenile court orders termination of parental rights on more than one statutory

ground, we need only find grounds to terminate on one of the sections to affirm.”

In re T.S., 868 N.W.2d 425, 435 (Iowa Ct. App. 2015). We find termination was

proper under section 232.116(1)(h).

       Under section 232.116(1)(h), the court must find the children are three years

of age or younger, as determined at the last date of the termination hearing; 2 have




2
   We note N.M.S. turned four years old between the time of the termination hearing and
the filing of the order. For purposes of section 232.116(1)(h), the child’s age is determined
on the date of completion of the termination hearings, not the date of the order, so
termination was appropriate under paragraph (h). See In re J.A., No. 13-0889, 2013 WL
5758054, at *3–4 (Iowa Ct. App. Oct. 23, 2013).
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been adjudicated CINA; have been removed from the parent’s custody for at least

six months; and the children cannot be returned to the parent at the present time.

       The mother does not contest the first three elements. The children were

ages two and three at the time of the termination hearing.         They had been

adjudicated CINA on March 27, 2017. The children had been in DHS custody for

nine months at the time of the hearing.

       We note and applaud the mother’s progress since the beginning of July in

structured treatment center settings. However, she did not start to be serious

about her treatment until after nearly a year and a half of DHS supervision, after

the court had set a permanency hearing, and she must learn to manage two severe

substance addictions. “A parent cannot wait until the eve of termination . . . to

begin to express an interest in parenting.” In re C.B., 611 N.W.2d 489, 495 (Iowa

2000). The mother has struggled with sobriety while living in the community and

receiving outpatient treatment. She continues to have contact with the father even

though the times they are together are marked by domestic violence and drug use.

       The children, now two and four years old, have been under the supervision

of DHS since January 2017. Despite her recent progress, the mother’s visitations

are still supervised and limited to twice a week. The children cannot currently live

with the mother in her treatment facility. The mother has substantial progress to

make before the children can be returned to her custody, most importantly showing

she can stay sober in the community. She has struggled with this in the past

several years even without having sole custody of two small children. “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
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(citation omitted). The mother admitted at the termination hearing it is not fair to

ask the children to continue to wait on her progress. We find the State has shown

by clear and convincing evidence the children cannot be returned to the custody

of the mother at this time. Therefore, we find clear and convincing evidence in the

record the mother’s rights should be terminated under Iowa Code section

232.116(1)(h).

       “When we consider whether parental rights should be terminated, we ‘shall

give 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].’” M.W., 876 N.W.2d

at 224 (quoting Iowa Code § 232.116(2)).        The children’s grandparents have

provided a safe and stable home for the children since 2017 while the mother went

through cycles of treatment and relapse. The mother is not at a point in her

recovery to support a finding she is able to meet the needs of the children. We

agree with the juvenile court’s finding termination of the mother’s rights is in the

children’s best interests.

       AFFIRMED.
