                      IN THE COURT OF APPEALS OF IOWA

                                     No. 15-1523
                                Filed March 23, 2016


IN THE INTEREST OF L.T.,
Minor Child,

T.B., Mother,
       Appellant.
________________________________________________________________


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

District Associate Judge.



         A mother appeals from the order terminating her parental rights.

AFFIRMED.




         Nicholas J. Einwalter, Des Moines, for appellant mother.

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

Attorney General, for appellee State.

         John P. Jellineck, Des Moines, attorney and guardian ad litem for minor

child.




         Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

      A mother appeals from the juvenile court’s order terminating her parental

rights. She argues termination was not in the child’s best interests and the court

should have applied the statutory exceptions to find termination would be

detrimental due to her bond with the child and because the child is placed with a

maternal aunt. She appeals the juvenile court’s denial of her request for an

additional six months to address her needs and pending criminal matters or, in

the alternative, for a guardianship to be established with the maternal aunt.

      I.     Background Facts and Proceedings

      L.T. was born in August 2013. The family came to the attention of the

Iowa Department of Human Services (DHS) in June 2014, following allegations

of domestic violence between the parents. In October 2014, L.T.’s five-year-old

sibling died of a morphine overdose in the mother’s house. At that time, there

was a no-contact order between L.T.’s parents as a result of domestic abuse, but

both parents were violating the order as the father was in the home. During the

death investigation, L.T. tested positive for cocaine.      L.T. was removed by

temporary order on October 15, 2014, and has never been returned to either

parent. L.T. was ultimately placed with a maternal aunt, where L.T. continues to

reside.

      The mother was subsequently arrested and charged due to the drug

activity taking place in her home, the death of L.T.’s sibling, and the neglect of

L.T. Additionally, a no-contact order was also put in place between the mother

and L.T.   As a result of these charges, the mother was incarcerated from

November 2014 to April 2015, at which time she posted bond. While the mother
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denied drug use, numerous controlled substances were found in the home. The

State filed a petition to terminate parental rights in May 2015. The case came on

for hearing in June 2015.

      At the hearing, the evidence showed that from October 2014 through the

date of the termination hearing, the mother attended individual therapy six times

and also attended a four-week class related to domestic assault. The mother

indicated she did not believe any further services were needed to address the

domestic violence. The mother was directed to attend parenting classes but

missed her first session. The classes were rescheduled to mid-June, which she

was in the process of attending at the time of the hearing. The assigned DHS

worker testified that although the mother had participated in the majority of

services available, including a substance abuse evaluation and a family team

meeting, she lacked insight into the reasons L.T. was removed. The DHS worker

opined a guardianship was not an appropriate recommendation based on,

amongst other things, L.T.’s age, the potential term of incarceration the mother

was facing, the serious circumstances that warranted L.T.’s removal from the

parents’ custody, and the mother’s failure to adequately address the issues that

resulted in L.T.’s removal.    The guardian ad litem and the State similarly

recommended termination. The mother testified at the hearing that she had been

offered a plea deal to include forty years, although she did not know the extent to

which prison time was required.

      The father took no position on the petition and does not appeal the

termination of his parental rights. The court terminated the mother’s parental
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rights under Iowa Code section 232.116(1)(d), (h), and (i) (2015). The mother

appeals.

       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 we 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 child. Id. at 776.

       III.        Analysis

       To review a decision terminating parental rights, we conduct a three-step

analysis.      First, we must determine whether the State established statutory

grounds for termination by clear and convincing evidence.         See Iowa Code

§ 232.116(1); In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). Second, if the State

established statutory grounds for termination, we consider whether termination is

in the child’s best interests under section 232.116(2). See In re P.L., 778 N.W.2d

at 40. Finally, we consider whether any exceptions under section 232.116(3)

weigh against termination.       See id. at 41.   The mother does not appeal the

statutory grounds for termination. Thus, we consider only the final two steps in

this analysis

              A.     Best Interests

       The mother argues it is not in the child’s best interests to terminate her

parental rights. Under Iowa Code section 232.116(2), in considering whether to

terminate parental rights, we “give primary consideration to the child’s safety, to

the best placement for furthering the long-term nurturing and growth of the child,
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and to the physical, mental, and emotional condition and needs of the child.”

“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.’” In re A.B., 815 N.W.2d at 778 (citation omitted).

       The juvenile court found the safety concerns leading to removal persisted;

the mother had failed to acknowledge her role in L.T.’s removal and the death of

L.T.’s sibling; and the mother failed to fully utilize, or even recognize a need to

utilize, the services made available to her. At the time of the termination hearing,

the mother was unable to see L.T. as a result of a criminal no-contact order. The

mother also faced numerous criminal charges and a significant prison sentence

as a result of those charges. “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 P.L., 778 N.W.2d at 41. This is

particularly true here, as the mother may well be incarcerated until after L.T.

reaches the age of majority.

       Moreover, “[o]ur statutory termination provisions are preventative as well

as remedial. Their goal is to prevent probable harm to the child; they do not

require delay until after the harm has happened.” In re T.A.L., 505 N.W.2d 480,

483 (Iowa 1993) (citation omitted). We need not wait for L.T. to suffer the same

harm suffered by L.T.’s sibling.      On our de novo review, we agree with the

juvenile court that termination is in L.T.’s best interests.
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             B.   Exceptions

       The juvenile court need not terminate parental rights if it finds any of the

statutory exceptions under section 232.116(3) apply. See In re P.L., 778 N.W.2d

at 39. The factors weighing against termination are permissive, not mandatory.

In re A.M., 843 N.W.2d at 113. “The court has 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 D.S., 806

N.W.2d 458, 475 (Iowa Ct. App. 2011).

       Iowa Code section 232.116(3)(c) provides the juvenile court need not

terminate the parental relationship if it finds by clear and convincing evidence

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

parent-child relationship. The mother contends that because she shares a bond

with the child, the juvenile court should not have terminated her parental rights.

However, at the time of the termination hearing, the mother admitted she did not

think her bond with the child still existed because she had not seen L.T. since

she was incarcerated in November of 2014—when L.T. was just over a year

old—because of a criminal no-contact order.          The juvenile court properly

exercised its discretion when it considered the facts of this case and found the

bond between the mother and her child did not weigh against termination of the

mother’s parental rights and specifically found termination is in the child’s best

interests.

       Iowa Code section 232.116(3)(a) provides the juvenile court need not

terminate the parental relationship if it finds a relative has legal custody of the

child. The mother argues that because L.T. is in the care of a maternal aunt, the
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court should have established a guardianship instead of terminating her parental

rights.    In determining section 232.116(3)(a) did not apply, the juvenile court

considered:

          [T]he child’s very young age, the significant trauma this child has
          suffered due to [the child’s] parents’ criminal activity, [L.T.’s] need
          for permanency, and the diminished attachment given the parents’
          lack of consistent contact[ and] the significant criminal charges
          faced by both parents that will likely result in them being sentenced
          to prison.

          Where, as here, statutory grounds for termination have been proven to

exist, the needs of the child are promoted by termination. See In re L.M.F., 490

N.W.2d 66, 68 (Iowa Ct. App. 1992). “The crucial days of childhood cannot be

suspended” while the mother serves her prison term, and L.T. “should not be

made to suffer indefinitely in parentless limbo.” In re K.C., 660 N.W.2d 29, 35

(Iowa 2003) (citation omitted). The maternal aunt is now providing the stability

and certainty this child needs. Thus, we agree with the juvenile court that no

statutory exception applies to prevent termination.

             C.     Additional Six Months

          The mother also argues the juvenile court should have given her an

additional six months to address her needs and resolve the outstanding criminal

charges against her. In order to extend a child’s placement for an additional six

months, the juvenile court must find the need for removal will no longer exist at

the end of six months. See Iowa Code § 232.104(2)(b). There is nothing in the

record to indicate the mother—given, amongst other things, the existing criminal

no-contact order and serious criminal charges pending against her and potential
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resulting prison time—would be able to resume care of L.T. in six months or any

time thereafter. Accordingly, we affirm the juvenile court’s decision.

       AFFIRMED.
