                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0860
                               Filed July 19, 2017


IN THE INTEREST OF N.M. and J.B.,
Minor Children,

B.B., Mother,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, David F.

Staudt, Judge.



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

AFFIRMED.



      Joshua M. Moon of Dutton, Braun, Staack & Hellman, P.L.C., Waterloo,

for appellant mother.

      Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney

General, for appellee State.

      Timothy M. Baldwin of Juvenile Public Defender’s Office, Waterloo,

guardian ad litem for minor children.



      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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DOYLE, Judge.

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

She contends the State failed to prove the grounds for termination. She seeks

additional time to prove she can safely parent the children. Upon our de novo

review, see In re J.S., 846 N.W.2d 36, 40 (Iowa 2014), we affirm.

       I. Background Facts and Proceedings.

       The Iowa Department of Human Services (DHS) became involved with

this family due in part to the mother’s history of relationships with men who

engage in domestic violence. Before J.B. and N.M. were born, the juvenile court

removed two older children from the mother’s care as a result of that history, the

unsafe condition of her home, and failure to supervise the children. The juvenile

court has since terminated the mother’s parental rights to the older children.

       In spite of the services the mother had already been receiving from the

DHS, when J.B. was two weeks old, the mother left the child in her apartment

unsupervised. The mother also exposed J.B. to domestic violence in the home.

The mother consented to J.B.’s removal from her care and adjudication as a child

in need of assistance (CINA). N.M. was removed from the mother’s care at birth

due to ongoing concerns about the mother’s ability to provide safe parenting.

The mother later stipulated to N.M.’s CINA adjudication and placement with the

DHS.

       The State filed petitions to terminate the mother’s parental rights to J.B.

and N.M. After a hearing, the juvenile court entered its order terminating the

mother’s parental rights to both children pursuant to Iowa Code section

232.116(1)(g) and (h) (2016). The mother appeals.
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      II. Analysis.

      Before the court may terminate parental rights, it must find clear and

convincing evidence supporting one of the grounds for termination listed under

section 232.116(1). See In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). The

district court terminated the mother’s parental rights under section 232.116(1)(g)

and (h). We may affirm the termination order if there is evidence to support

termination under one ground. See id. at 707.

      The court may terminate parental rights under Iowa Code section

232.116(1)(h) if the evidence shows the following:

             (1) The child[ren are] three years of age or younger.
             (2) The child[ren have] been adjudicated [children] in need of
      assistance pursuant to section 232.96.
             (3) The child[ren have] been removed from the physical
      custody of the child[ren]’s parents for at least six months of the last
      twelve months, or for the last six consecutive months and any trial
      period at home has been less than thirty days.
             (4) There is clear and convincing evidence that the child[ren]
      cannot be returned to the custody of the child[ren]’s parents as
      provided in section 232.102 at the present time.

The mother does not dispute the State proved the first three elements.

      With regard to the final requirement that the children cannot be returned to

the parent, “at the present time” means “at the time of the termination hearing.”

D.W., 791 N.W.2d at 707. At the time of the termination hearing, the mother’s

visits remained supervised. As the juvenile court observed, the mother

      has made little, if any, progress since 2015. She has failed to make
      any improvement in her parenting abilities or skills. She continues
      to place her children in danger while exercising supervised
      visitation. She has placed her needs above the needs of her
      children. She has been involved romantically with men that are
      poor choices for her and her children. They have been abusive to
      her. She has been the victim of domestic abuse . . . . [The mother]
      continues to make poor choices concerning her relationships.
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               [The mother] has been unable to show to the [DHS] that she
       is capable of monitoring and parenting her children. She must
       continue to be prompted to feed and change diapers. She has
       great difficulty in getting the children organized and transferred at
       the time of visitation. The children have been in danger during her
       visitation. Her children have also created potentially dangerous
       situations while at the hospital. It would appear that [the mother]
       cannot keep her children safe.

We give weight to these findings, which are supported by the record. See In re

A.B., 815 N.W.2d 764, 773 (Iowa 2012).

       Once we determine the statutory grounds for termination exist, we must

determine whether termination is in the children’s best interest. See In re A.M.,

843 N.W.2d 100, 112 (Iowa 2014). In doing so, we “give primary consideration to

the child’s safety, to the best placement for furthering the long-term nurturing and

growth of the child, and to the physical, mental, and emotional condition and

needs of the child.” Iowa Code § 232.116(2). The children’s safety is one of the

“defining elements” of the best-interest determination.      See In re J.E., 723

N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially). As stated above,

the mother is unable to keep the children safe.        It is in the children’s best

interests to terminate mother’s parental rights.

       Iowa Code section 232.116(3) provides the circumstances in which the

court “need not terminate the relationship between the parent and child.” These

provisions are permissive, not mandatory. See also In re C.L.H., 500 N.W.2d

449, 454 (Iowa Ct. App. 1993), overruled on other grounds by In re P.L., 778

N.W.2d 33, 39-40 (Iowa 2010).        The decision to apply one of the statutory

exceptions to termination is discretionary and depends on the child’s best

interests under the circumstances of that particular case. See id.
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         The mother argues termination could be avoided under the exception

provided in section 232.116(3)(c) because there is clear and convincing evidence

that termination would be detrimental due to the closeness of the parent-child

relationship. The record does not support her assertion. J.B. was less than one

year old at the time of removal, and the mother has not provided care for J.B. for

over half of the child’s life. N.B. was a newborn at the time of removal, and the

mother has never provided care for N.B. The mother failed to attend visits with

the children consistently. There is no evidence of a parent-child bond that would

render termination of the mother’s parental rights detrimental to either child.

         The mother also claims termination of J.B. should be avoided under the

exception provided in section 232.116(3)(a) (providing an exception to

termination if a relative has legal custody of the child). Although J.B. was placed

in the care of relatives, no relative has legal custody of the child. See A.M., 843

N.W.2d at 112, 113 (noting that although A.M. was in the care of her

grandparents, she was not in their legal custody, making section 232.116(3)(a)

inapplicable). The mother’s claim that guardianship of J.B. “could have been

transferred to a relative under Iowa Code section 232.104(3)” is unpersuasive.

          Finally, the mother asks for additional time to prove the children can be

returned to her care. However, despite several years of involvement with the

DHS, the mother has been unable to develop the necessary parenting skills to

provide safe and consistent parenting for these children. As the juvenile court

found:

               [The mother] has made little, if any, progress over the years.
         She continues to participate at between a 50% and 75%
         attendance rate in [DHS] programming. She has been offered
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       parent education classes . . . [but] has failed to attend any
       meetings . . . since February of this year. . . . [The service provider]
       believes that [the mother] is incapable of utilizing the learned skills
       or has chosen not to put to use the information she has gained.
               [The mother]’s participation in mental health counseling has
       been described as “hit and miss.” . . . She has failed to make
       significant progress in addressing those same mental health issues.
               [The mother] may have good intentions; however, her mental
       health diagnosis and lack of ability or desire to change are barriers
       to long-term advancement. Her perpetual failure to improve her
       parenting skills prevents her from meeting department
       expectations. She fails to keep her children safe during visits. She
       has not attended all visits. Her children can be described as being
       at great risk of harm because of her poor choices. She can
       concentrate on only one child at a time. It appears that she is
       unable to tend to two children at a time. . . .
               [The mother] may attempt to parent her children, but her
       children are in danger when in her care. Additional time for [the
       mother] will not solve her issues. [The mother] has been involved
       with the [DHS] and its programming for years. She has failed to
       adequately grasp the necessary improvements she must make in
       her parenting skills to allow her children to return to her home.

Delaying termination is contrary to the children’s best interests. See In re D.J.R.,

454 N.W.2d 838, 845 (Iowa 1990) (“We have long recognized that the best

interests of a child are often not served by requiring the child to stay in

‘parentless limbo.’” (citation omitted)).       “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.” See P.L., 778

N.W.2d at 41; see also In re A.C., 415 N.W.2d 609, 613-14 (Iowa 1987) (noting it

is important to fix child custody quickly to avoid parentless limbo and holding that

once the statutory time limits for termination have been met, it is unnecessary to

take any more from the children’s future).
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       We affirm the order terminating the mother’s parental rights to J.B. and

N.M.

       AFFIRMED.
