                     IN THE COURT OF APPEALS OF IOWA

                                  No. 19-1654
                               Filed April 1, 2020


IN THE INTEREST OF B.S. and E.C.,
Minor Children,

M.M., Mother,
      Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Romonda Belcher,

District Associate Judge.



       A mother appeals the termination of her parental rights. AFFIRMED.




       Teresa M. Pope of Branstad & Olson Law Office, Des Moines, for appellant

mother.

       Thomas J. Miller, Attorney General, and Gretchen Witte Kraemer, Assistant

Attorney General, for appellee State.

       Michael Sorci of Youth Law Center, Des Moines, attorney and guardian ad

litem for minor children.




       Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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MULLINS, Judge.

       A mother appeals the termination of her parental rights to her two children,

born in 2016 and 2017.1 She challenges the sufficiency of the evidence supporting

the statutory grounds for termination cited by the juvenile court, argues termination

is not in the children’s best interests because of the closeness of the parent-child

bond, and maintains she should have been granted additional time to work toward

reunification.

I.     Background Facts and Proceedings

       This twenty-six-year-old mother has a long history of methamphetamine

use, dating back to when she was thirteen. This family again came to the attention

of the Iowa Department of Human Services (DHS) in July 2018, upon allegations

the mother was using and selling methamphetamine while caring for the children.2

The mother agreed she was selling the substance and tested positive for it. The

children were removed from the mother’s care and placed in foster care, where

they have remained. Both of the children’s fathers were incarcerated at the time

on drug charges. The mother tested positive for methamphetamine shortly before

the adjudication hearing in August.      At the adjudication hearing, the mother

reported her intention to engage in substance-abuse treatment. The children were

adjudicated to be in need of assistance.


1 The juvenile court also terminated the parental rights of both children’s fathers.
They do not appeal.
2 DHS had prior involvement with the mother and older child beginning in June

2016 as a result of the mother’s methamphetamine use. That child-in-need-of-
assistance proceeding closed in January 2018. During the proceedings now
before us on appeal, the mother admitted she was still using methamphetamine
when the first case closed and prior thereto when she was pregnant with the
younger child.
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       In September, the mother reported continuous use of methamphetamine for

the past three or four weeks. She also reported she would not engage in inpatient

treatment. The mother was approved to participate in recovery court, but she failed

to engage in the program. The mother entered residential treatment in December,

but she left after a few weeks, having made little progress. In light of the mother’s

lack of progress, the State moved for a permanency hearing. In April 2019, the

mother underwent a substance-abuse evaluation, during which she admitted

continued use of controlled substances, and she was admitted into inpatient

treatment. Shortly thereafter, the court held a permanency hearing and, at the

conclusion, directed the State to initiate termination proceedings. The mother then

left inpatient treatment and, according to her own testimony, “continued to get high

for a couple weeks” on “Meth and OxyContin.”

       The State filed its termination petition in May. In early June, the mother

enrolled in outpatient treatment.     The evidentiary portions of the termination

hearing were held over two days in June and August. At the first day of the hearing

in June, the mother reported two or three weeks of sobriety. By the second day of

the hearing in August, she was also receiving mental-health therapy and

medication management. She testified if she was granted an extension, she

planned to begin a year-long program in Nebraska, more than three hours away,

involving   substance-abuse     and   mental-health    treatment.      The   mother

acknowledged in her testimony that she was not a proper placement for the

children both days of the termination hearing.      She requested a three-month

extension to work toward reunification the first day of trial and then requested a

six-month extension the second day. By the second day of trial, the mother had
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not exercised visitation with the children in nearly two months. While the mother

had obtained new employment, it was a position in which she would be required

to travel out of the state for ten days at a time. She had yet to establish stable

housing. The children have been in the same foster care placement since shortly

after removal. The children are integrated into this family, and the foster parents

are willing and able to adopt.

       The juvenile court ultimately terminated the mother’s parental rights under

Iowa Code section 232.116(1)(e), (h), and (l) (2019).      As noted, the mother

appeals.

II.    Standard of Review

       We review termination-of-parental-rights proceedings 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).

III.   Analysis

       A.     Sufficiency of the Evidence

       The mother challenges the sufficiency of the evidence supporting

termination. As noted, the juvenile court terminated the mother’s rights under Iowa

Code section 232.116(1)(e), (h), and (l). The mother only challenges termination

under section 232.116(1)(h). While we could affirm the termination decision on the

unchallenged grounds, we elect to address the challenged ground. See In re S.R.,

600 N.W.2d 63, 64 (Iowa Ct. App. 1999).
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        As to termination under section 232.116(1)(h), the mother only challenges

the State’s establishment of the final element of that provision—that the children

could not be returned to her 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 the children’s 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”).

        The mother agreed in her testimony both days of the termination hearing

the children could not yet be placed in her care. We agree. The mother was not

in a position with her sobriety and mental health to resume care of the children.

We conclude the State met its burden for termination under section 232.116(1)(h).

        B.    Best Interests and Statutory Exception

        The mother argues termination is contrary to the best interests of the

children, see Iowa Code § 232.116(2), due to the closeness of the parent-child

bond.    See id. § 232.116(3)(c). We choose to separately address the best-

interests and statutory-exception issues. See In re A.S., 906 N.W.2d 467, 472–73

(Iowa 2019) (discussing three-step termination framework).

        In determining whether termination is in the best interests of a child, 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 mother has simply not progressed to a point at which her children can be

returned to her care. She has been struggling with her addiction for several years.

The mother waited until the eve of termination to begin taking any steps to address
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her substance-abuse and mental-health issues, which is too late. See In re C.B.,

611 N.W.2d 489, 495 (Iowa 2000). “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)). We conclude the mother has been given

ample time to get her affairs in order and the children’s best interests are best

served by providing permanency and stability now. See id. at 778 (“It is simply not

in the 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))). The children are in a foster placement that is willing to

adopt. The children are integrated into this familial setting. Continued stability and

permanency in this home, which the mother has been unable to provide, are in the

children’s best interests. See Iowa Code § 232.116(2)(b); cf. In re M.W., 876

N.W.2d 212, 224–25 (2016) (concluding termination was in best interests of

children where children were well-adjusted to placement, the placement parents

were “able to provide for their physical, emotional, and financial needs,” and they

were prepared to adopt the children).

       As to the mother’s request for application of the statutory exception to

termination contained in section 232.116(3)(c), we first note the application of the

statutory exceptions to termination is “permissive, not mandatory.” M.W., 876

N.W.2d at 225 (quoting In re A.M., 843 N.W.2d 100, 113 (Iowa 2014)). Iowa Code

section 232.116(3)(c) allows the juvenile court to decline to terminate parental

rights when “[t]here is clear and convincing evidence that the termination would be
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detrimental to the child at the time due to the closeness of the parent-child

relationship.” While we acknowledge a bond between the mother and children,

that bond can only be characterized as limited at best given these children’s young

age and the mother’s long-term physical absence from their short lives. Upon our

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

A.S., 906 N.W.2d at 476 (noting parent bears burden to establish exception to

termination). We therefore decline to apply the statutory exception to termination.

       C.     Extension

       The mother argues the court erred in denying her request for a six-month

extension to work toward reunification. She maintains she could be in a position

to resume care of the children within that time frame. If, following a termination

hearing, the court does not terminate parental rights but finds there is clear and

convincing evidence that the child is a child in need of assistance, the court may

enter an order in accordance with section 232.104(2)(b). Iowa Code § 232.117(5).

Section 232.104(2)(b) affords the juvenile court the option to continue placement

of a child for an additional six months if the court finds “the need for removal . . .

will no longer exist at the end of the additional six-month period.”

       While the mother began outpatient treatment shortly before the first day of

the termination hearing, given her track record, she has a long way to go before

these children can be returned to her care. She has a long history of use of

methamphetamine and other drugs, which has been fraught with relapse.

Following her substance-abuse evaluation, it was recommended that she engage

in intensive inpatient treatment, not outpatient treatment.       She left inpatient
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treatment twice during these proceedings, having made little to no progress. The

mother would need to reengage in visitation with the children, which she had not

been doing for two months prior to the second day of the termination hearing. She

would then need to progress well beyond unsupervised visitation before the

children could be placed in her care. The mother simply waited too long. Given

the mother’s history, she would be required to fully engage in services for an

extended period of time before the children could be returned to her care, certainly

longer than six months. We are unable to conclude “the need for removal . . . will

no longer exist at the end of the additional six-month period,” and we therefore

affirm the juvenile court’s denial of the mother’s request for an extension. Id.

§ 232.104(2)(b).

IV.    Conclusion

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

       AFFIRMED.
