                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0031
                               Filed November 12, 2015

IN THE INTEREST OF D.F., S.R.,
A.A., and G.A.,
       Minor Children,

J.M., Mother,
       Appellant,

S.R., Father,
       Appellant.
________________________________________________________________

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

District Associate Judge.



       A mother and father appeal separately from the order terminating their

parental rights. AFFIRMED ON BOTH APPEALS.



       Susan R. Stockdale, Windsor Heights, for appellant-mother.

       Alexander Smith of Burdette Law Firm, P.C., Clive, for appellant-father.

       Thomas J. Miller, Attorney General,and Kathrine S. Miller-Todd and

Kathryn K. Lang, Assistant Attorneys General, for appellee.

       John Jellineck of Youth Law Center, Des Moines, attorney and guardian

ad litem for minor children.



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



MULLINS, Judge.

        The mother of four children and the father of D.F. appeal separately from

the termination of their parental rights. Upon our de novo review, we find clear

and convincing evidence supports the termination of both parents’ parental rights

and affirm.

I.      Background Facts and Proceedings

        Jessica is the mother of four children, D.F., born in October 2003, S.R.,

born in August 2005, A.A., born in October 2009, and G.A., born in January

2011. Samuel is the biological father of D.F.

        In July 2013, the children were removed from Jessica’s care due to her

methamphetamine usage and failure to provide proper supervision for the

children. The Iowa Department of Human Services (DHS) conducted a child

abuse    assessment     in   which   it   found   that   Jessica   frequently   used

methamphetamine while caring for the children. She admitted that because of

her mental health issues, she had a difficult time leaving her bedroom and

meeting her children’s emotional needs. In August 2013, the State filed a child-

in-need-of-assistance (CINA) petition.

        In September 2013, the children were adjudicated CINA and their removal

from their mother’s custody was confirmed. The juvenile court held dispositional

and review hearings in October 2013 and January 2014, confirming the CINA

adjudication and out-of-home placements. In May 2014, the State filed a petition

to terminate the mother’s parental rights as to A.A. and G.A. In June 2014, the

juvenile court held a permanency hearing. In July 2014, the State filed a petition
                                           3



to terminate the mother’s parental rights as to D.F. and S.R. and the father’s

parental rights as to D.F. The hearing began on the petitions in August 2014 and

concluded in October 2014.

        At the conclusion of the hearing, the two youngest children, A.A. and G.A.,

were in a pre-adoptive foster home, having been placed there in September

2013.    S.R. was also in a pre-adoptive foster home after moving between

multiple placements.       D.F. was then in a youth shelter, after multiple

unsuccessful placements.

        In December 2014, the juvenile court entered an order terminating the

mother’s parental rights to all four children pursuant to Iowa Code section

232.116(1)(d), (e), (f), and (h) (2013), and the father’s parental rights to D.F.

under section 232.116(1)(d) and (f). Both parents separately appeal. 1

II.     Standard of Review

        We review termination-of-parental-rights proceedings de novo. In re A.M.,

843 N.W.2d 100, 110 (Iowa 2014). We give weight to the factual determinations

of the juvenile court, especially with regard to witness credibility, but are not

bound by them. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Our primary

consideration is the best interests of the children. See id. at 776.




III.    Analysis


1
  The juvenile court also terminated the parental rights of the legal father of the four
children and the biological father of A.A. and G.A., both of whom consented to the
termination, as well as the putative biological father of S.R. and any unknown biological
father of S.R. None of these fathers are involved in this appeal.
                                          4



       Iowa Code chapter 232 termination of parental rights follows a three-step

analysis.   In re P.L., 778 N.W.2d 33, 39 (Iowa 2010).         The court must first

determine whether a ground for termination under section 232.116(1) has been

established. Id. If a ground for termination has been established, the court must

apply the best-interests framework set out in section 232.116(2) to decide if the

grounds for termination should result in termination of parental rights. Id. Finally,

if the statutory best-interests framework supports termination of parental rights,

the court must consider if any of the statutory exceptions set out in section

232.116(3) weighs against the termination of parental rights. Id.

       A. Grounds for Termination

       Jessica argues the juvenile court erred in finding safety concerns that led

to the removal of the children continued to exist at the time of the termination

hearing.2 When a juvenile court terminates parental rights on more than one

ground, we may affirm the order on any of the statutory grounds supported by

clear and convincing evidence. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010).

Evidence is clear and convincing when there is no serious or substantial doubt as

to the correctness of the conclusions of law drawn from the evidence. Id. at 706.

       Iowa Code section 232.116(1)(f) provides that the court may terminate a

parent’s parental rights if the State proves by clear and convincing evidence the

child (1) is four years of age or older; (2) has been adjudicated CINA; (3) has

been removed from the physical custody of the parent for at least twelve of the

last eighteen months, or the last twelve consecutive months and any trial period


2
  Samuel does not dispute that grounds for termination exist under section 232.116(1),
thus we do not discuss this step with regard to him.
                                       5



at home has been less than thirty days; and (4) cannot be returned to the

parent’s custody at the time of the termination hearing.            Iowa Code

§ 232.116(1)(f). Under section 232.116(1)(h), the court may terminate parental

rights if the court finds that the State has proved by clear and convincing

evidence the child (1) is three years old or younger; (2) has been adjudicated

CINA; (3) has been removed from the physical custody of the parent for at least

six of the last twelve months, or the last six consecutive months and any trial

period at home has been less than thirty days; and (4) cannot be returned to the

custody of the parent at the time of the termination hearing.        Iowa Code

§ 232.116(1)(h).

      D.F., S.R., and A.A. were all over the age of four years old at the time of

the termination hearing and G.A. was age three.        All of the children were

removed from their mother’s care in July 2013, were adjudicated CINA in August

2013, and remained out of her care and custody through the termination hearing

held August 2014 through October 2014 without any trial periods at home.

Jessica admitted that she did not start working toward reunification with her

children until May 2014, almost ten months after her children were removed and

only one month before the permanency hearing. Jessica also admitted that the

children could not be returned to her care at the time of the termination hearing

and instead requested a six-month extension.

      At the start of the termination hearing, Jessica was living on her

stepfather’s couch and her children could not live with her there. Thereafter

Jessica found a two-bedroom apartment on a one-year lease through Anawim
                                         6



Housing, having admitted that she only applied for housing about a month prior

to the start of the hearing. Jessica testified she was not employed, did not have

a GED or job training, had never held a steady job, and her sole source of

support is Supplemental Security Income benefits. She did not participate in

visitation with the children between February and May 2014 due to her

inappropriate behavior during visits and failure to contact DHS. Thereafter, she

missed half of her visits in June and July 2014. Jessica had only attended six

therapy sessions since reengaging in services in May 2014 despite

acknowledging her unresolved mental health and anger issues.

       Jessica skipped every drug screen DHS requested from January to May

2014, and admitted she did not make an effort to get clean until April 2014. And

although she completed outpatient substance abuse services, she failed to

complete the recommended inpatient treatment. Following her completion of the

treatment program, she tested positive for methamphetamine in July 2014. The

juvenile court found Jessica’s explanation for the positive test incredible because

she attributed her positive result to being around someone else who may have

used methamphetamine.        Additionally, Jessica has failed to recognize the

domestic abuse that was present in her relationship with the biological father of

A.A. and G.A. that both D.F. and S.R. had witnessed. Consequently, the children

would remain at risk if returned to her care. Upon our de novo review, we agree

with the juvenile court that the children could not be returned to Jessica’s care at

the time of the termination hearing. Thus, we find clear and convincing evidence
                                          7



to support termination of the mother’s parental rights under section 232.116(1)(f)

as to D.F., S.R., and A.A. and paragraph (h) as to G.A.

         B. Best Interests Factors in Termination

         Jessica argues that termination of her parental rights is not in the

children’s best interests as defined in section 232.116(2), especially as to D.F.

who was placed in shelter care toward the end of the termination hearing due to

his behaviors while in foster care. Iowa Code § 232.116(2). Even if a statutory

ground for termination is met, a decision to terminate must still be in the best

interests of the child after a review of section 232.116(2). In re P.L., 778 N.W.2d

at 37.

         We have thoroughly reviewed the record before us “giv[ing] 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). “It is

well-settled law that we cannot deprive a child of permanency after the State has

proved a ground for termination under section 232.116(1) by hoping someday a

parent will learn to be a parent and be able to provide a stable home for the

child.” In re A.B., 815 N.W.2d at 777 (quoting In re P.L., 778 N.W.2d at 41).

         Jessica cannot provide a safe and stable home for her children. Although

she made some limited progress in the months leading up to the termination

hearing, she is unable to meet her own mental health and emotional needs and

has failed to meet the mental and emotional needs of her children. This failure is

especially clear in respect to D.F., whose severe behavioral issues since his
                                           8



removal from Jessica’s care are the result of her neglect and failure to meet his

needs during the first ten years of his life.     See id. at 778 (“Insight for the

determination of the child’s long-range best interests can be gleaned from

‘evidence of the parent’s past performance for that performance may be

indicative of the quality of the future care that parent is capable of providing.’”)

(quoting In re C.B., 611 N.W.2d 489, 495 (Iowa 2000)). Thus upon our de novo

review of the record, we conclude that termination of the mother’s parental rights

is in the children’s best interests.

         C. Exceptions or Factors Against Termination

         Both parents argue that an exception under section 232.116(3) applies

with respect to D.F. because he is over ten years of age and objected to the

termination of parental rights.        Iowa Code § 232.116(3)(b).      Samuel also

contends that it would be detrimental to D.F. to terminate Samuel’s parental

rights because D.F. has a close relationship with him and D.F.’s future is

uncertain if termination were to occur because at the time of the termination

hearing he was placed in a youth shelter rather than a pre-adoptive placement.

See Iowa Code § 232.116(3)(c); see In re S.J., 451 N.W.2d 827, 833–34 (Iowa

1990).     “‘The factors weighing against termination in section 232.116(3) are

permissive, not mandatory,’ and the court may use its discretion, ‘based on the

unique circumstances of each case and the best interests of the child, whether to

apply the factors in this section to save the parent-child relationship.’” In re A.M.,

843 N.W.2d at 113 (quoting In re D.S., 806 N.W.2d 458, 475 (Iowa Ct. App.

2011)).
                                         9



       We find that none of the permissive factors weigh against termination of

the parents’ parental rights here.      Although D.F. turned eleven during the

termination hearing, and the parents claim he objected to the termination, neither

of the parents provided evidence that he objected to the termination of parental

rights. D.F. did not testify before the court regarding his wishes. Instead, a

former foster parent who had D.F. in his care for two months leading up to and

during the first part of the termination hearing wrote a letter to the juvenile court

discussing D.F.’s wish to “maintain[] contact and his relationship with his parents

and his other relatives.” The DHS worker testified that D.F. “wanted to go with

either parent.” However, the guardian ad litem (GAL) and attorney stated that he

spoke with D.F. in August 2014 regarding the termination proceedings and

although D.F. did not want to be adopted by another family unless by relatives or

close family friends, he did not object to the process continuing.

       We recognize that Samuel has made some limited progress.                  He

consistently participated in visitation with D.F., except when D.F. refused to

attend visits with him from January 2014 until April 2014. But Samuel knew from

the initial removal that he needed to complete substance abuse treatment and

quit using illegal substances.     Samuel completed two outpatient treatment

programs but continued to test positive for marijuana throughout the programs.

From January to July 2014, DHS requested nineteen drug screens, five of which

Samuel no-showed and eight tested positive.        He last tested positive in July

2014. Samuel acknowledged that if he had been sober and able to demonstrate

the he could be a safe caretaker for D.F., then D.F. would not have been moved
                                       10



between six different placements throughout the case.     Samuel has failed to

financially support D.F. or otherwise provide for him. Samuel also was required

to attend therapy to address his anger issues, and initially failed to engage in

therapy. He was released from his provider in March 2014, and waited until

August 2014 to reengage, after the termination-of-parental-rights petition had

been filed.

       Further, we do not find that the bond between D.F. and Samuel weighs

against termination in this case.   The record reveals D.F. did not confide in

Samuel when he was experiencing issues in Jessica’s home involving the living

conditions of the home, domestic violence between Jessica and the biological

father of A.A. and G.A. as well as physical abuse against D.F. for attempting to

help Jessica during these situations, lack of access to food, and acting as a

caretaker for Jessica. Further, during an unsupervised visit on Thanksgiving

2013, Samuel chose to disclose to D.F. that Jessica was using drugs and not

doing well, which caused D.F. to decline in his foster placement and resulted in

D.F. being placed in a shelter. D.F. refused to attend visits with Samuel from

January until April 2014. Even after this, Samuel was allowed additional visits

with D.F. at one of his shelter placements but he rarely took advantage of the

opportunity.    Samuel also made no effort to contact D.F. on his birthday in

October 2014, while the termination hearing was ongoing and D.F. was residing

in a youth shelter.

       D.F. should not have to wait endlessly for his parents to get their lives

together.     In re D.W., 791 N.W.2d at 707.   Thus, we do not find clear and
                                          11



convincing evidence that any of the permissive factors under section 232.116(3)

apply here.

       D. GAL/Attorney Role

       Finally, both parents argue that the GAL, who also served as the

children’s attorney, should have bifurcated his role because D.F. did not want

parental rights terminated. This issue was raised by the court during closing

arguments, and the court was satisfied with the GAL’s explanation of his role.

The parents contend that the juvenile court abused its discretion and that this

conflict requires reversal and remand for a new termination-of-parental-rights

hearing.   See In re A.T., 744 N.W.2d 657, 665–66 (Iowa Ct. App. 2007).

Although counsel for either parent did not object to the alleged conflict of interest

at the termination hearing,3 we may consider this issue on appeal. See In re

A.T., 744 N.W.2d at 660 (citing In re J.P.B., 419 N.W.2d 387, 390 (Iowa 1988)).

       The court has discretion to appoint a GAL separate from the child’s

attorney “if the same person cannot properly represent the legal interests of the

child as legal counsel and also represent the best interest of the child as [GAL].”

Iowa Code § 232.89(4). In In re A.T., this court held that given the child’s age

and maturity, a separate attorney should have been appointed to represent the

child’s wishes. 744 N.W.2d at 666. In that case, the child was age twelve at the

time of the termination hearing and the court found that the child “‘was



3
  Neither parent moved for a mistrial during the hearing, even when the issue was
discussed during closing arguments. In December 2014, Samuel filed a motion for
mistrial and Jessica joined it arguing that the GAL should have bifurcated his role. The
juvenile court found the motion for mistrial untimely, that it should have been made
during the trial or immediately after instead of sixty days after trial.
                                        12



impressive and demonstrated a maturity beyond her years.’ She recognized her

parent’s shortcomings. While in foster placement she was abused. She was

allowed to express her opinion to the court, but with the assistance of a guardian

ad litem who did not share her goal.” Id. at 660.

       As discussed above, D.F. turned eleven during the termination hearing.

Neither parent provided evidence that D.F. objected to the termination of their

parental rights. Instead, the only evidence that was presented was through DHS

and a letter by a former foster parent. The GAL/Attorney stated that based upon

his conversation with D.F. in August 2014 that D.F. was not opposed to the

proceedings going forward, he did not raise D.F.’s wishes separately before the

juvenile court and argued only that termination was in the children’s best

interests. Further, the record does not suggest that D.F. is mature enough for his

wishes to be the deciding factor in the court’s determination. Indeed, D.F. has

been moved between placements several times because he acts out through

temper tantrums and the use of profanity. D.F. struggles when he is not the only

child in a home and has to share attention. He refused to participate in visits with

Samuel for several months. D.F. loves his parents and shares a bond with each

of them, but he is unable to understand that his mother’s mental health and

substance abuse issues and his father’s substance abuse issues are essentially

the root cause of his own issues and behaviors and current situation.

       Thus upon our de novo review of the record, we find D.F. is not of

“sufficient age and maturity to make an informed decision about a potential

termination” with his parents. Id. at 665. Therefore, we find the juvenile court did
                                        13



not abuse its discretion in not appointing a separate attorney to represent D.F. in

this matter. We affirm the termination of the mother’s and father’s parental rights.

       AFFIRMED ON BOTH APPEALS.
