                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0614
                              Filed August 1, 2018


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

D.B., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Susan Cox, District

Associate Judge.



       A mother appeals the termination of her parental rights to her child.

AFFIRMED.



       Aaron H. Ginkens of Ginkens Law Firm, P.L.C., West Des Moines, for

appellant mother.

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

Attorney General, for appellee State.

       Brent M. Pattison of Drake Legal Clinic, Des Moines, guardian ad litem for

minor child.



       Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.

       A mother appeals the termination of her parental rights to her child, born in

2008. She contends (1) the record lacks clear and convincing evidence to support

a finding the child could not be returned to her custody; (2) termination was not in

the child’s best interests; (3) termination was inappropriate, given the child’s

preferences and objection to termination and the closeness of the parent-child

bond; and (4) the court should have placed the child in a guardianship in lieu of

terminating her parental rights.

I.     Ground for Termination

       Iowa Code section 232.116(1)(f) (2017) requires proof of several elements,

including proof the child cannot be returned to the parent’s custody.           The

department of human services became involved with the family after the child’s

father assaulted the child’s mother. The district court adjudicated the child in need

of assistance, removed him from the father’s custody, and allowed him to remain

in the mother’s custody. The mother actively participated in reunification services

and abided by a no-contact order prohibiting interaction with the father.

       In time, the mother’s progress waned. She was unsuccessfully discharged

from a substance abuse treatment program, exposed herself and the child to

dangerous men, violated the no-contact order, and threatened to assault a

department employee. The district court placed temporary legal custody of the

child with his paternal aunt, under department supervision. The aunt kept the child

briefly but asked to end the placement due to the mother’s behaviors towards her.

The child was placed in foster care.
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          Meanwhile, the mother again began working towards reunification. The

department recommended returning the child to her custody, subject to department

supervision. The district court granted the request.

          The reunification was short-lived. The mother violated the no-contact order

and assaulted the father. The department asked to have the child removed from

her custody. The district court granted the request.

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

district court granted the petition.1 The court provided the following reasoning:

                 The Mother . . . struggles with homelessness, instability,
          mental health, deceit, inappropriate conversations around [the child],
          inappropriate situations with [the child], violence, criminality,
          domestic violence and ongoing violations of the No Contact
          Order[, which] prevent [the child] returning to her custody.

          On appeal, the mother argues the child wanted to be returned to her care,

she requested return of the child to her care, and she was in the process of

obtaining housing to facilitate that goal. In her view, the child could have been

returned to her custody in the imminent future. On our de novo review of the

record, we disagree.

          The district court afforded the mother several opportunities to retain or

regain custody of her child, and the mother squandered those opportunities. The

child-in-need-of-assistance petition was filed in 2015. The district court allowed

the child to remain with the mother until her actions precipitated a removal in 2016.

Despite her violation of the no-contact order, the court reunified mother and child

in the same year. The mother again violated the no-contact order. The court



1
    The father’s parental rights were also terminated.
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removed the child a second time, and the child remained out of her custody for

well over a year. In short, the child was shuttled in and out of multiple homes as a

direct consequence of the mother’s actions.

       By the time of the termination hearing, the service provider who most

recently supervised visits between mother and child testified the visits were

suspended two months earlier “pending the review of the family and updated family

interaction plan.” While he described interactions between the mother and child

as “comfortable,” he also stated topics of conversation were “red flags.” The main

area of concern was the mother’s “bringing up court and talking a lot about court.”

In his view, her statement that the child needed to stand up for himself in court and

“come home . . . halted the visitations.” Although a previous service provider had

a more benign view of the mother’s conversations with her child, that service

provider was removed from the case several months before the termination

hearing.

       We are less concerned about the mother’s discussion of court proceedings

with the child than we are with the mother’s failure to address factors precipitating

the child’s second removal from her home. The mother admitted she violated a

no-contact order and also admitted she discontinued therapy that might have

helped her process her fraught relationship with the child’s father. While she

expressed an intent to reinitiate therapy sessions, she had yet to do so at the time

of a second termination hearing. The therapy sessions were all the more critical

because the mother stopped taking medication to manage her mental health

diagnoses after learning she was pregnant and after being told the medications

could have adverse “effects on a new unborn child.”
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       At the time of the second termination hearing, the mother also lacked

appropriate housing. While she testified she was in the process of obtaining

subsidized housing, her efforts on this and other fronts came too late. See In re

C.B., 611 N.W.2d 489, 495 (Iowa 2000). After more than two years of services,

she was simply not in a position to have the child returned to her custody. We

agree with the district court that the State proved the statutory ground for

termination set forth in Iowa Code section 232.116(1)(f).

II.    Best Interests

       Termination must serve the child’s best interests. In re P.L., 778 N.W.2d

33, 39 (Iowa 2010). In considering those best interests, the child’s safety is our

primary concern. Id.

       The department employee overseeing the case had no reservations about

the bond between mother and child. She testified “[t]hey communicate well” and

“[t]hey interact during visits.” Nonetheless, she stated the mother struggled “to set

good boundaries for herself” and “to understand what she says and does and how

that impacts [the child].”    She acknowledged the mother was appropriately

prepared for visits and displayed appropriate parenting techniques during the

supervised sessions. But she had concerns about the mother’s ability to protect

the child from domestic violence and ability to manage her mental health.

       The service provider who supervised visits shortly before the termination

hearing had similar views. He acknowledged a “clear affection” between mother

and child but testified to the mother’s “inappropriate” preoccupation with the father.

He also cited her refusal to attend “any sort of therapy.”
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       We do not minimize the child’s strong desire to return to a permanent, loving

home with his mother after several temporary placements. But there is simply no

assurance that the mother’s home—if one could be obtained—would be

permanent or safe. We agree with the district court that termination of the mother’s

parental rights was in the child’s best interests.

III.   Exceptions to Termination

       The court may consider certain statutory “exceptions to termination.” See

Iowa Code § 232.116(3). The mother argues two exceptions apply: “The child is

over ten years of age and objects to the termination” and “[t]here 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.” Id. § 232.116(3)(b), (c).

The factors are permissive, not mandatory. In re A.S., 906 N.W.2d 467, 475 (Iowa

2018). The first exception is technically inapplicable because the child was not

over the age of ten at the time of the termination hearing. 2 As for the second

exception, we agree the record contains extensive evidence of the bond shared by

mother and child. But, as discussed, the safety of the child was paramount, and

we are not convinced the mother was in a position to ensure the child’s safety.

IV.    Guardianship

       A court may place the child with a relative or other suitable person. Iowa

Code § 232.117(3)(c); A.S., 906 N.W.2d at 477. “[A] guardianship is not a legally

preferable alternative to termination.” A.S., 906 N.W.2d at 477 (citing In re B.T.,

894 N.W.2d 29, 32 (Iowa Ct. App. 2017)).


2
 As noted, we have considered the child’s preference in the best-interests analysis,
notwithstanding the inapplicability of the statutory exception.
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       The primary factor that augurs in favor of a guardianship is the child’s desire

to reunite with his mother. The department caseworker conceded the child “would

like to be with mom number one.” But she recommended against the creation of

a guardianship, stating “we have had two years under our belt of a long struggle

and a lot of ups and downs for [the child,] and . . . permanency now and an

immediate permanency plan is vital for [the child].”

       We concur in this assessment. As difficult as severance of the parent-child

ties might be for the child, there is simply no assurance the “ups and downs”

referenced by the caseworker would subside if a guardianship were created in lieu

of termination. We conclude the district court appropriately declined to exercise

this option.

       We affirm the termination of the mother’s parental rights to her child.

       AFFIRMED.
