                    IN THE COURT OF APPEALS OF IOWA

                                   No. 20-0592
                               Filed June 17, 2020


IN THE INTEREST OF H.B. and K.B.,
Minor Children,

L.B., Father,
       Appellant,

B.C., Mother,
       Appellant.
________________________________________________________________


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

Associate Judge.



      Parents separately appeal the termination of their parental rights.

AFFIRMED ON BOTH APPEALS.



      Edward S. Fishman of Hopkins & Huebner, P.C., Adel, for appellant father.

      Kelsey Knight of Carr Law Firm, P.L.C., Des Moines, for appellant mother.

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

Attorney General, for appellee State.

      ConGarry D. Williams of Juvenile Public Defender, Des Moines, attorney

and guardian ad litem for minor children.



      Considered by Mullins, P.J., Greer, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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SCOTT, Senior Judge.

      Parents separately appeal the termination of their parental rights to their two

children, K.B., born in 2017, and H.B., born in 2018, pursuant to Iowa Code section

232.116(1)(h) (2019).1 Both parents challenge the sufficiency of the evidence

supporting the statutory ground for termination cited by the juvenile court, argue

termination is contrary to the children’s best interests, and maintain the court

should have applied the exception to termination contained in Iowa Code section

232.116(3)(c).

I.    Background Facts and Proceedings

      Both parents have long histories of mental-health issues. The family came

to the attention of the Iowa Department of Human Services (DHS) in December

2017 when the mother was arrested for marijuana possession and child

endangerment because her two older children were with her in her vehicle while

she was smoking marijuana.2 A no-contact order was entered between the mother

and children for the ensuing three months. The mother pled guilty in March 2018

and was placed on probation. At some point, the no-contact order was lifted and

the children were returned to parental custody. In April, concerns arose about the

condition of the family home. Pursuant to a safety plan, the children were placed

with relatives while the parents worked on the condition of the home. They made

little progress, and they were ultimately asked to leave their apartment. An order

for formal temporary removal was entered in May, which was confirmed in July


1 The mother has a third child, A.C., born in 2016, who is not involved in these
appeals.
2 Prior thereto, DHS provided services to the mother in relation to her inability to

properly care for A.C.
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following a removal and adjudication hearing. The mother underwent a substance-

abuse evaluation, resulting in a recommendation that she engage in extended

outpatient treatment. Both A.C. and K.B. were adjudicated as children in need of

assistance.

      Also in July, H.B. was born. He remained in the parents’ care. Additional

concerns arose regarding the father’s substance abuse and domestic violence in

the presence of the child. As a result of a family quarrel, DHS implemented a

safety plan involving the mother and H.B. residing in a shelter. Thereafter, in

September, the State filed a petition for adjudication as to H.B. Following another

incident of domestic violence, the State applied for removal of H.B. The juvenile

court entered an emergency removal order. The mother continued to associate

with the father, and the instances of domestic violence continued. Following a

hearing, the court entered an order confirming removal and adjudicating H.B. to be

in need of assistance.

      By October, the parents were engaged in substance-abuse and mental-

health treatment. However, the father continued to test positive for marijuana use,

and he had recently been the subject of dual arrests for drug possession and

criminal mischief. DHS recommended a six-month extension as to K.B. The

mother continued to participate in services through the time of the review hearing

in May 2019. The parents were interacting with the children appropriately during

visits and had obtained suitable housing for the family. Problems with domestic

violence in the home appeared to have dissipated, but the father’s participation in

services was inconsistent. He was unsuccessfully discharged from mental-health

treatment in March, and he continued to test positive for marijuana use. Despite
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the father’s lack of engagement, DHS recommended a six-month extension to

work toward reunification. The court granted the request as to the mother, but

directed the State to initiate termination proceedings as to the father.

       Shortly after the juvenile court’s review order, the father was arrested for

domestic abuse assault against the mother. In July, pursuant to a plea agreement,

the father pled guilty to an amended charge of disorderly conduct. The related no-

contact order between the parents was lifted upon the mother’s request. The

father continued to test positive for marijuana through August.

       The State filed its termination petition as to the father in July. The State

amended its petition in September to request termination of the mother’s rights as

well. By October, the father was meaningfully engaging in mental-health and

substance-abuse treatment. However, based on the father’s track record, DHS

expressed concern for the father’s ability to stay the course on a long-term basis.

Throughout the proceedings, DHS frequently recommended the mother to obtain

housing independent of the father and distance herself from him due to the ongoing

violence in their relationship. The mother declined to do so. The parents continued

to reside with the children’s paternal grandmother, with whom the father also has

a history of violent interactions. As a result of those issues, the parents never

progressed beyond fully-supervised visitation until sometime in October. Then, in

late October, the parents were involved in an incident in which property was

damaged when someone fired a BB gun from a vehicle the parents occupied with

two other individuals. The parents’ visitation reverted to fully supervised. In the

coming months, the father reverted to inconsistent participation in therapy.
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       The matter proceeded to a termination hearing in January 2020. At that

point in time the mother was residing at a women’s residential facility as a condition

of her recent violation of probation. Just days before she had continued to reside

with the father. The mother testified she would not be able to have the children

placed with her at the facility for a matter of weeks. The month prior, the father

was discharged from substance-abuse and mental-health treatment for

nonattendance. The mother testified she was no longer in a relationship with the

father and she was pregnant, the father of the child being another man she was

unable to identify. At the hearing, the social worker testified to her concern for her

expectation that the mother would continue to reside with the father upon her

discharge. The worker’s remaining concerns for returning the children to the

parents’ care included the home environment, keeping the children safe and clean,

domestic violence, and substance abuse.

       The juvenile court ultimately terminated the parents’ rights under Iowa Code

section 232.116(1)(h). Both parents appeal.

II.    Standard of Review

       Our review is de novo. In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our

primary consideration is the best interests of the children, In re J.E., 723 N.W.2d

793, 798 (Iowa 2006), the defining elements of which are the children’s safety and

need for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011); see

also Iowa Code § 232.116(2).
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III.   Analysis

       A.    Sufficiency of the Evidence

       Both parents challenge the State’s establishment of the final element of the

sole ground for termination cited by the juvenile court—that the children could not

be returned to their care at the time of the termination hearing. See Iowa Code

§ 232.116(1)(h)(4) (requiring clear and convincing evidence that the children

cannot be returned to the custody of their parents at the present time); In re D.W.,

791 N.W.2d 703, 707 (Iowa 2010) (interpreting the statutory language “at the

present time” to mean “at the time of the termination hearing”).

       As to the mother, she had recently moved into a women’s residential facility

as a condition of her probation. She testified it would be a number of weeks before

the children could be placed with her there.        The evidence was clear and

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

termination hearing. As to both parents, they had recently reverted from semi-

supervised to fully-supervised visitation. While we acknowledge there were no

parenting concerns during visits, the parents would need to demonstrate their

ability to properly care for the children in an unsupervised setting and for longer

periods of time before the children can be returned to their care. That was not the

situation at the time of the termination hearing. Thus, we agree with the juvenile

court the children could not be returned to the parents’ care at the time of the

hearing, and the State met its burden for termination under section 232.116(1)(h).

       B.    Best Interests

       Both parents argue termination is contrary to the children’s best interests.

In determining whether termination is in the best interests of children, we “give
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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). As

noted, the defining elements of children’s best interests are the children’s safety

and need for a permanent home. H.S., 805 N.W.2d at 748.

       The father was inconsistent in meaningfully engaging in services throughout

the proceedings. While he appeared to be in a good place as to his marijuana

usage at the time of the termination hearing, concerns remained, especially given

the father’s long history of mental-health and anger issues.         The mother did

meaningfully engage in services. But she knew the primary barrier to reunification

was her continuing association with the father, and her refusal to obtain housing

independent from him or otherwise distance herself from him was problematic. At

one point late in the proceedings, the mother moved in with her sister in Missouri,

a residence it appeared the children would be able to be placed with her in.

However, after mere weeks, the mother returned to Iowa to continue residing with

the father.

       At the end of the day, the children could not be returned to either parents’

care despite roughly two years of services. “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 . . . be able to provide

a stable home for the child.” In re A.B., 815 N.W.2d 764, 777 (Iowa 2012) (quoting

In re P.L., 778 N.W.2d 33, 39 (Iowa 2010)). The parents have been given ample

time to get their affairs in order, and these children’s best interests are best served

by providing permanency and stability now. See id. at 778 (“It is simply not in the
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best interests of children to continue to keep them in temporary foster homes while

the natural parents get their lives together.” (quoting In re C.K., 558 N.W.2d 170,

175 (Iowa 1997))). An appropriate adoptive family has been located for these

children. These children should not have to wait any longer for permanency; they

are entitled to immediate constant, responsible, and reliable parenting. See In re

L.L., 459 N.W.2d 489, 495 (Iowa 1990). Because termination followed by adoption

will satisfy these children’s need for a permanent home, we conclude termination

is in their best interests.

       C.      Statutory Exception

       Both parents request the application of the statutory exception to

termination contained in Iowa Code section 232.116(3)(c). We first note the

application of the statutory exceptions to termination is “permissive, not

mandatory.” In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (quoting In re A.M.,

843 N.W.2d 100, 113 (Iowa 2014)). While we acknowledge bonds exist between

the parents and children, those bonds can only be described as limited at best

given these children’s young age and placement outside of their parents’ care for

most of their short lives. Upon our de novo review, we find the evidence insufficient

to show “termination would be detrimental to the child[ren] . . . due to the closeness

of the parent-child relationship.” See In re A.S., 906 N.W.2d 467, 476 (Iowa 2018)

(noting parent bears burden to establish exception to termination). We therefore

decline to apply the statutory exception to termination. Alternatively, we conclude

application of the exception would be contrary to the children’s best interests.
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IV.       Conclusion

          We find the evidence sufficient to support the ground for termination

contained in Iowa Code section 232.116(1)(h), termination is in the children’s best

interests, and the exception to termination contained in section 232.116(3)(c)

should not be applied. As such, we affirm the termination of both parents’ parental

rights.

          AFFIRMED ON BOTH APPEALS.
