                      IN THE COURT OF APPEALS OF IOWA

                                 No. 4-039 / 13-1961
                                 Filed March 12, 2014


IN THE INTEREST OF S.K.,
Minor Child,

S.K., Mother,
       Appellant.
________________________________________________________________

         Appeal from the Iowa District Court for Johnson County, Deborah Farmer

Minot, District Associate Judge.



         A mother appeals from the order terminating her parental rights.

AFFIRMED.



         Rachel C.B. Antonuccio of Iowa City Public Defender’s Office, Iowa City,

for appellant mother.

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

Attorney General, Janet M. Lyness, County Attorney, and Patricia A. Weir,

Assistant County Attorney, for appellee State.

         Anthony Haughton of Linn County Advocate, Inc., Cedar Rapids, for minor

child.



         Considered by Doyle, P.J., Bower, J., and Huitink, S.J.*

         *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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HUITINK, S.J.

I. Background Facts & Proceedings.

       Stacey is the mother of a child born in September 2007. In April 2011, the

child was discovered wandering around outside a hotel unsupervised while

Stacey was engaged in a domestic dispute. Stacey was arrested, and the child

was removed from her care and placed with relatives. The following month, the

child was adjudicated as a child in need of assistance (CINA) pursuant to Iowa

Code sections 232.2(6)(c)(2) and 232.2(6)(n) (2011) following stipulation of the

parties.

       Stacey has a history of involvement in relationships marked by domestic

abuse. At the time the family came to the attention of the Iowa Department of

Human Services (DHS), Stacey admitted to a history of physical and sexual

abuse in her relationship. She also admitted to abusing prescription medication.

Stacey has mental health issues and, following a substance abuse evaluation,

was diagnosed with alcohol dependence.

       In February 2012, the court ordered the State to file a petition to terminate

Stacey’s parental rights. But before the May termination hearing, Stacey began

making progress in addressing her issues, and the termination hearing was

continued.   The court authorized a trial home placement, and custody was

returned to Stacey in August 2012. Although concerns about Stacey’s return to a

volatile relationship began to surface as early as November 2012, by April 2013 it

was hoped that her progress would continue and the CINA case could be closed

in July 2013. These hopes were extinguished in May 2013 when Stacey was

arrested on a felony domestic abuse assault charge.
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       On May 20, 2013, the State filed a motion to modify prior orders.           A

hearing was held on July 17 and August 28, 2013. On September 18, 2013, the

juvenile court entered its order modifying its prior orders to place the child in the

care of the relatives who had cared for her during her first removal. The court

also waived the reasonable efforts requirement and scheduled a permanency

hearing the next month. Following the permanency hearing, the court ordered

the State to file a petition to terminate Stacey’s parental rights.

       The State filed its termination petition on October 14, 2013, and the case

proceeded to a hearing on November 20, 2013. In its November 22, 2013, order,

the juvenile court found that despite Stacey’s claims, “it is highly likely” that she

had resumed “her unhealthy, dysfunctional, and sometimes violent relationship”

as evidenced by “her lack of employment . . . , her failure to take steps to keep

the no contact orders in place, and her diminished participation in services.” The

court found the child “has experienced considerable loss, trauma, and

abandonment” and “was physically mistreated by the mother.” It further noted

the “significant concerns” that the child “has experienced some form of sexual

abuse, either directly or by exposure to sexual activity and/or pornography” given

the child’s expressed knowledge of sexual activity and her inappropriate,

sexualized behaviors. The court concluded Stacey’s parental rights should be

terminated under sections 232.116(1)(g) (child adjudicated CINA, parental rights

to another child terminated, parent continues to lack the ability or willingness to

respond to services which would correct the situation, and additional time would

not correct the situation) and (h) (child is three or younger, CINA, removed at

least six months, and cannot be safely returned home) (2013).
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II. Standard of Review.

       The scope of review in termination cases is de novo. In re R.E.K.F., 698

N.W.2d 147, 149 (Iowa 2005).       Clear and convincing evidence is needed to

establish the grounds for termination. In re T.P., 757 N.W.2d 267, 269 (Iowa Ct.

App. 2008). Our primary concern in termination cases is the best interests of the

child. In re A.S., 743 N.W.2d 865, 867 (Iowa Ct. App. 2007).

III. Modification of the Dispositional Order.

       Stacey first contends the juvenile court should not have been modified its

prior orders in the September 2013 order because there was no material and

substantial change in circumstances as they existed at the time of the prior

dispositional orders. See Iowa Code § 232.103 (allowing the court to modify any

dispositional order prior to expiration); In re J.F., 386 N.W.2d 149, 152 (Iowa Ct.

App. 1986) (stating a material and substantial change in circumstances is

required for modification).

       Clear and convincing evidence establishes a material and substantial

change in circumstances occurred between the April 11, 2013 order continuing

the prior dispositional orders without change and the September 18, 2013 order.

In May 2013, Stacey was arrested for felony domestic abuse assault, and the

DHS learned of the escalating conflict in her relationship, which the child

witnessed. The child was removed from her care.

       The child reported witnessing physical violence in the home and her

mother striking her in the face and bottom and pulling her hair—claims

substantiated by Stacey’s domestic partner. The child also graphically described

sexual acts she claimed Stacey engaged in with her and exhibited inappropriate,
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sexualized behavior in foster care, which indicated she has been exposed to

sexual acts or had been sexually abused. The child’s therapist described the

child as “sad and anxious” at her May 2013 therapy session.

        Because the evidence shows a material and substantial change in

circumstances warranted modification of the prior dispositional orders, we affirm

on this issue.

IV. Waiving Reasonable Efforts.

        Stacey also challenges the portion of the court’s September 18, 2013

order waiving the reasonable efforts requirement. When a child is removed from

the home, the State is normally required to make reasonable efforts to make it

possible for the child to return safely to the home. Iowa Code § 232.103(5)(b),

(7). However, the reasonable efforts requirement may be waived if the court

finds the circumstances described in section 232.116(1)(i) are applicable. Id.

§ 232.103(12)(b). There are three circumstances described in this section:

               (1) The child meets the definition of child in need of
        assistance based on a finding of physical or sexual abuse or
        neglect as a result of the acts or omissions of one or both parents.
               (2) There is clear and convincing evidence that the abuse or
        neglect posed a significant risk to the life of the child or constituted
        imminent danger to the child.
               (3) There is clear and convincing evidence that the offer or
        receipt of services would not correct the conditions which led to the
        abuse or neglect of the child within a reasonable period of time.

Id. § 232.116(1)(i). Stacey argues there is not clear and convincing evidence of

a significant risk or imminent danger to the child or the conditions that led to the

abuse or neglect of the child could not be corrected within a reasonable period of

time.
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       We find the evidence supports the conclusion that abuse or neglect posed

an imminent danger to the child. The child expressed knowledge of sex acts well

in advance of her years, which indicated she witnessed such acts or was

subjected to them. As a result, the child engaged in inappropriate, sexualized

behavior. The evidence also shows the child was the victim of physical abuse at

Stacey’s hands. The child has already suffered mental and emotional trauma

and distress as a result of this abuse or neglect.

       The evidence further shows the offer or receipt of services would not

correct the conditions that would lead to the abuse or neglect within a reasonable

time. Two years after the CINA adjudication, and in spite of the services she had

been offered and participated in, Stacey was again arrested for domestic abuse

assault. In her testimony at the modification hearing, Stacey positioned herself

as the victim of domestic abuse rather than acknowledging her role in it. She

pointed the blame at her partner and at the court system, refusing to accept any

responsibility for the escalating conflict in the home. She also lacked insight into

how her involvement in an abusive relationship impacts the child, claiming the

child would “take something minor and make it into something big.”

       Clear and convincing evidence shows the circumstances described in

section 232.116(1)(i) existed at the time of modification. Accordingly, we affirm

the waiver of reasonable efforts.

V. Grounds for Termination.

       Stacey also contends the State failed to prove the grounds for termination

by clear and convincing evidence.        Although she challenges both statutory

grounds for termination, we need only find grounds to terminate under one of the
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sections cited by the juvenile court to affirm. See In re S.R., 600 N.W.2d 63, 64

(Iowa Ct. App. 1999). Specifically, she disputes the sufficiency of the evidence

the child could not be safely returned to her custody as provided in section

232.102, as required under section 232.116(1)(h), and the offer or receipt of

services would not correct the conditions that led to the abuse or neglect of the

child within a reasonable time, as required under section 232.116(1)(i).

       In its termination order, the juvenile court noted “nothing has changed for

the better” since the modification order was entered on September 18, 2013.

Stacey was awaiting trial on felony domestic abuse assault charges, was

unemployed, and was less involved in services. Despite Stacey’s claim she was

ending her relationship, the juvenile court found it was “highly likely” the

relationship had resumed. The evidence supports this finding, as does Stacey’s

past behavior. See In re M.H., 367 N.W.2d 275, 278 (Iowa 1985) (“[N]ot only

may the court look at the past behavior of the parent, but . . . it is an important

factor.”). There is no doubt the child cannot be safely returned to Stacey’s care

at this time.

VI. Exceptions.

       Once a ground for termination has been proved under section 232.116(1),

and the factors under section 232.116(2) favor termination, the court should then

decide whether it need not terminate the relationship for any of the reasons set

forth in section 232.116(3).   In re P.L., 778 N.W.2d 33, 40-41 (Iowa 2010).

Stacey contends her parental rights should not be terminated because the child

is in the custody of a relative and because there is clear and convincing evidence
                                          8


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

parent child relationship. See Iowa Code § 232.116(3)(a), (c).

       There is no evidence to substantiate Stacey’s claim that termination would

be detrimental to the child due to their close bond. The evidence establishes that

Stacey has had no contact with the child since her removal in May 2013 and that

the child harbors anxiety and anger toward her mother. Although the child’s

therapist testified that even children who are badly abused by their parents long

for contact, the child never stated a desire to see Stacey or stated she loved her.

Instead, she told the therapist Stacey was mean and indicated she wished to

remain in her foster home.

       The child is in the care of a relative, and therefore the factor necessary to

avoid termination under section 232.116(3)(a) has been met.            However, an

appropriate determination to terminate a parent-child relationship is not to be

countermanded by the ability and willingness of a family relative to take the child.

In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). “The child’s best interests always

remain the first consideration.” Id.

       We find the child’s best interests require termination. The child’s therapist

noted the child’s life had been “full of chaos” and that the child “needs a healthy

and stable environment with support for caregivers as she recovers from her

many traumas and develops a sense of safety and security.” The child’s foster

family provides her with this stability. This stability will be threatened if Stacey’s

parental rights are not terminated given the tension between Stacey and the

relatives the child is placed with. After considering the foster family’s suitability

as an adoptive placement, the child’s need for permanence, and the child’s lack
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of bond with her mother, we find termination is in the child’s best interests;

termination will not be avoided simply because the child was placed with

relatives.

       For the foregoing reasons, we affirm the order terminating Stacey’s

parental rights.

       AFFIRMED.
