                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-1995
                              Filed March 4, 2020


IN THE INTEREST OF R.B.,
Minor Child,

B.D., Mother,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Fayette County, Linnea M.N. Nichol,

District Associate Judge.



      A mother appeals the termination of her parental rights concerning her

daughter. AFFIRMED.



      Nicholas E. Hay of Hay Law, P.L.C., Decorah, for appellant mother.

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

Attorney General, for appellee State.

      Andrew Thalacker, Waterloo, attorney and guardian ad litem for minor child.



      Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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SCHUMACHER, Judge.

         R.B. is a one-year-old female child who was born in July 2018 with

methamphetamine and amphetamine in her system. Following thirteen months of

reunification services provided by the Iowa Department of Human Services (DHS),

the district court terminated the mother’s parental rights pursuant to Iowa Code

section 232.116(1)(h) (2019).1 The mother’s appeal follows.

I. Standard of Review

         We review termination-of-parental-rights actions de novo. In re P.L., 778

N.W.2d 33, 40 (Iowa 2010). Although we are not bound by them, we give weight

to the trial court’s findings of fact, especially when considering credibility of

witnesses. Iowa R. App. P. 6.904(3)(g); In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993).

The primary interest in termination proceedings is the best interests of the child.

Iowa R. App. P. 6.904(3)(o); In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998); In re

Dameron, 306 N.W.2d 743, 745 (Iowa 1981).

II. Background Facts and Prior Proceedings

         R.B. came to the attention of DHS on August 2, 2018, when they received

the results of newborn R.B.’s umbilical-cord test, which was positive for

methamphetamine and amphetamine. A safety plan was implemented by DHS,

and newborn R.B. was allowed to remain in her mother’s custody based on the

mother’s representation that she had not used methamphetamine since March

2018. Results of a hair stat test for the mother received on August 15 were

inconsistent with the mother’s last reported use, and DHS requested a removal of



1   The father’s parental rights were also terminated. He does not appeal.
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R.B. R.B. was removed from parental custody on August 15, 2018, and has

remained out of parental custody since that time. There has not been a trial period

at home.

      Following removal, R.B. was placed in relative care. The mother was

allowed to reside with the relatives and R.B. provided she complied with the safety

plan. As a result of another positive drug screen and an argument with the relative

placement, the relatives requested that R.B. be removed from their home. R.B.,

then five-months old, was placed in family foster care and has remained in this

same foster home since January 2019.2

      R.B. was adjudicated to be a child in need of assistance on September 20,

2018. Her child-in-need-of-assistance status was confirmed in a dispositional

hearing order of October 26, 2018. A permanency hearing was held on March 22,

2019, wherein the district court ordered that the State initiate termination

proceedings. On that same date, the State filed a petition for termination of

parental rights. While the termination hearing was originally scheduled for May 31,

the hearing was continued on four separate occasions and ultimately took place

on September 6.

      The mother inconsistently participated in random drug testing as requested

by DHS. However, as noted by the district court, the mother “consistently tested

positive for methamphetamine.” The mother provided positive drug screens in

July, August, September, and November 2018, and January, February, April, and



2R.B. has two siblings who are separately placed outside of the mother’s custody.
Neither sibling was subject to the underlying child-in-need-of-assistance
proceeding nor this termination proceeding.
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August 2019. The most recent positive hair stat test for the mother was August

28, 2019, just over a week prior to the termination hearing.

       The mother also struggled to separate from R.B.’s father, in spite of

repeated instances of domestic violence. On one occasion, the mother reported

she was assaulted on July 26, 2019, with R.B.’s father pulling her into his house

by her hair and striking her on the head. Less than three weeks later, she and the

father met with a worker from DHS. The mother indicated they were a couple

presenting a “united front.” Just prior to this joint meeting with DHS, the father was

arrested for felony-level domestic violence against his sister.       R.B.’s mother

testified at the termination hearing she did not believe she would survive several

of the domestic violence assaults perpetrated by R.B.’s father.         Despite that

recognition, she has been unable to end this tumultuous relationship.

III. Analysis

       The mother does not contest that the statutory elements of section

232.116(1)(h) were proved. She argues the district court erred in finding an

additional period of time would not correct the situation that led to the adjudication

and removal of R.B., termination is not in the child’s best interest under section

232.116(2), and section 232.116(3)(c) should prevent termination. Because the

mother does not contest the statutory grounds of section 232.116(1)(h), we affirm

the district court’s findings as to the ground supporting termination.       We will

address the mother’s arguments in turn.

       A. Additional-Time Request

       In order to grant a six-month extension, the court must be able to

“enumerate the specific factors, conditions, or expected behavioral changes”
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providing a basis to determine the children will be able to return to the parent at

the end of the additional six months. Iowa Code § 232.104(2)(b). The court needs

evidence to support a finding the mother would be able to care for R.B. within six

months in order to grant an extension.        “The judge considering [a six-month

extension] should however constantly bear in mind that, if the plan fails, all

extended time must be subtracted from an already shortened life for the children

in a better home.” In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005) (citation

omitted).

       Following the entry of the removal order, the family was provided family

safety, risk, and permanency services; substance-abuse evaluations; assistance

in complying with recommendations of the substance-abuse evaluations; random

drug testing, individual mental-health counseling; transportation; relative

placement; a family team meeting; visitation; referral to domestic violence

advocacy agencies; and housing referral assistance.

       The mother received a de facto four-month extension by way of the

continuation of the termination hearing on four occasions. Despite that additional

time, the mother testified positive for methamphetamine only a week prior to the

September 2019 termination hearing. Her consistent participation in outpatient

substance-abuse treatment began just weeks prior to the termination hearing.

R.B. has been out of parental custody her entire life with the exception of sixteen

short days following her birth. The mother was provided thirteen months to take

steps toward reunification and failed to make use of the services offered. She has

maintained a relationship with R.B.’s father, a relationship that is dangerous to both

her daughter and to herself. The mother’s ongoing positive drug screens, her
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inability to separate from R.B.’s father, and the length of time R.B. has been out of

parental custody all weigh against finding another six months would eliminate the

need for the removal.     See id. at 93. We find a six-month extension is not

warranted.

       B. Best Interest of R.B.

       The child affected by these proceedings has been has been out of parental

custody for over a year. She is very young. Her mother has been unable to

address the issues that brought the child to the attention of DHS and the district

court, namely substance abuse, domestic violence, and safe housing. The child

has been placed in a pre-adoptive home and is bonded to that family.

       Though provided appropriate time and opportunities, the mother failed to

show progress.     The record reflects repeated positive drug screens and a

continued unhealthy and unsafe relationship with R.B.’s father. At the time of the

termination hearing, she was without appropriate housing. We affirm the district

court’s finding that termination is in R.B.’s best interest.       See Iowa Code

§ 232.116(2).

       C. Permissive Exceptions

       Under Iowa Code section 232.116(3), a termination, otherwise warranted,

may be avoided under the exceptions in this section. In re D.E.D., 476 N.W.2d

737, 738 (Iowa Ct. App. 1991). The factors under section 232.116(3) have been

interpreted by the courts as being permissive, not mandatory. In re C.L.H., 500

N.W.2d 449, 454 (Iowa Ct. App. 1993). The words “need not terminate” are clearly

permissive. Id. The court has discretion, based on the unique circumstances of
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each case and the best interests of the child, whether to apply the factors in this

section to save the parent-child relationship. Id.

       After a careful review of the record, we also agree with the district court that

the exception argued by the mother in section 232.116(3)(c) should not preclude

termination in this case. The mother contends her parental rights should not be

terminated because she has a bond with her daughter. We do not question the

bond between the mother and R.B., which was described by the family’s care

coordinator as “very strong.” However, based on the mother’s testimony, she

remains at an indecisive stage with respect to her sobriety and the relationship she

has with R.B.’s father, and, as such, we do not find that termination would be

detrimental to R.B. because of the closeness of the parent-child relationship. Over

a year has passed with none of the critical barriers to reunification successfully

overcome by the mother. Bearing in mind that our primary concern must remain

what is in R.B.’s best interest, we agree with the district court’s decision in declining

to utilize an exception to termination pursuant to Iowa Code Section 232.116(3). 3



3 Under section 232.116(3), the court need not terminate the relationship between
the parent and child if the court finds any of the following:
               a. A relative has legal custody of the child.
               b. The child is over ten years of age and objects to the
       termination.
               c. There is clear and convincing evidence that the termination
       would be detrimental to the child at the time due to the closeness of
       the parent-child relationship.
               d. It is necessary to place the child in a hospital, facility, or
       institution for care and treatment and the continuation of the parent-
       child relationship is not preventing a permanent family placement for
       the child.
               e. The absence of a parent is due to the parent’s admission
       or commitment to any institution, hospital, or health facility or due to
       active service in the state or federal armed forces.
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IV. Conclusion

      We agree with the district court that a six-month extension was not

warranted based on the lack of progress by the mother. We further agree that

termination is in R.B.’s best interest and there is a lack of evidence to show that

termination should not occur due to the existence of a permissive exception set

forth in Iowa Code section 232.116(3). Accordingly, we affirm.

      AFFIRMED.
