                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1297
                            Filed December 19, 2018


IN THE INTEREST OF A.V.,
Minor Child,

A.V., Mother,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Benton County, Barbara H. Liesveld,

District Associate Judge.



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




      David R. Fiester, Cedar Rapids, for appellant mother.

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

Attorney General, for appellee State.

      Raymond P. Lough, Vinton, guardian ad litem for minor child.




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

          A mother appeals the termination of her parental rights to her child. 1 She

contends the State failed to prove the statutory grounds for termination by clear

and convincing evidence, termination is not in the best interests of the child, a

statutory exception to termination should be applied, and the juvenile court erred

in declining her request for additional time to work toward reunification.

I.        Background Facts and Proceedings

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

family at the time of the child’s birth in a Minnesota hospital in October 2017, at

which time the mother tested positive for several illegal substances. She readily

admitted to using methamphetamine and marijuana during her pregnancy. The

mother testified she did not learn of her pregnancy until about two weeks prior to

the child’s birth. The child tested positive for methamphetamine, amphetamines,

and THC. Two days after the child’s birth, the mother left the hospital against

medical advice and returned to Iowa. She left the child at the hospital and did not

return until the child was discharged from the hospital more than a week later,

when she accompanied a DHS worker to transport the child to foster care. The

child was removed from the parents’ custody on October 18 and was adjudicated

a child in need of assistance (CINA) on October 24. The mother previously placed

another of her children for private adoption.

          The mother has a long history of substance abuse covering roughly fifteen

years. Prior to these proceedings, she had never received treatment for her



1
     The father’s parental rights were also terminated. He does not appeal.
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substance abuse. In its adjudicatory order, the juvenile court ordered the mother

to submit to random drug testing and undergo a substance-abuse evaluation. She

tested positive for amphetamines at an October 30 substance-abuse evaluation.

DHS attempted to obtain samples for drug tests from the mother on eighteen

different occasions between late October 2017 and early March 2018. During this

period, DHS was only able to obtain a sample from the mother on November 7,

which tested positive for methamphetamine.         Following the substance-abuse

evaluation, it was recommended that the mother participate in outpatient

treatment, but she did not show up for her admission appointment on November

2. The mother reported for outpatient treatment intake on November 20, but she

subsequently failed to attend group therapy appointments and was discharged

from outpatient treatment for failure to attend. The mother obtained a second

substance-abuse evaluation in January, at which time she tested negative for

drugs. Again, however, the mother did not follow through with recommended

treatment.

       On March 13, as a result of the mother’s lack of progress, the juvenile court

directed the State to file a petition for termination of the mother’s parental rights.

Thereafter, the mother began consistently attending substance-abuse treatment.

She tested negative for drugs on March 16 and 26 and April 10. The results of

another drug test the mother submitted to were pending at the time of the

termination hearing in late May. Throughout the life of these proceedings, the

mother has been generally consistent in attending visitation with the child, with

some exceptions and tardiness issues. At the termination hearing, the DHS case

worker testified the mother has been doing “fantastic” in the last two and a half
                                            4


months. She stated the mother has supervised visitation with the child three or

four times per week, there are no parental- or supervision-related concerns during

those visits, and she is open to suggestions from providers and the foster mother.

Yet, the mother has not progressed beyond supervised visitation. The DHS worker

testified she was considering allowing the mother to start exercising semi-

supervised visitation with the child, pending the results of the drug test

administered before the hearing.        The DHS worker additionally indicated the

mother was complying with the case plan at the time of the termination hearing.

The mother testified at the termination hearing she has been clean since

December 1, 2017.

       Following a hearing, the juvenile court terminated the mother’s parental

rights under Iowa Code section 232.116(1)(g), (h), and (l) (2018). As noted, the

mother appeals.

II.    Standard of Review

       Our review is de novo.2 In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). “We

are not bound by the juvenile court’s findings of fact, but we do give them weight,

especially in assessing the credibility of witnesses.” Id. (quoting In re A.M., 843

N.W.2d 100, 110 (Iowa 2014)). Our primary consideration is the best interests of

the child. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).




2
  Included in the exhibits admitted in this case are exhibits and documents that originated
in the CINA proceedings.
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III.   Analysis

       A.    Sufficiency of the Evidence

       The juvenile court terminated the mother’s parental rights under Iowa Code

section 232.116(1)(g), (h), and (l). “On appeal, we may affirm the juvenile court’s

termination order on any ground that we find supported by clear and convincing

evidence.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). As to termination under

paragraph (h), the mother only challenges the State’s establishment of the final

element—that the child 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 child cannot be returned to the custody of the child’s

parents . . . at the present time”); D.W., 791 N.W.2d at 707 (interpreting the

statutory language “at the present time” to mean “at the time of the termination

hearing”). Upon our de novo review of the record, we find the evidence to be clear

and convincing that the child could not be returned to the mother’s care at the time

of the termination hearing. The mother’s testimony at the termination hearing

largely indicated that she agreed she was not prepared to have the child in her

care and custody at that time. The evidence supports this indication. The mother

had yet to progress beyond fully-supervised visitation with the child. In addition,

she was still in the early stages of receiving substance-abuse treatment following

roughly fifteen years of substance abuse with no prior treatment. We conclude the

State proved the statutory grounds for termination under section 232.116(1)(h) by

clear and convincing evidence.
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       B.     Best Interests and Statutory Exception

       In arguing termination is not in the best interests of the child, the mother

does not address any of the statutory considerations courts examine in

determining whether termination is in the best interests of the child. See Iowa

Code § 232.116(2) (“[T]he court shall 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.”). Instead, she argues the child’s best interests would be served by applying

a statutory exception to termination because termination would be detrimental to

the child due to the closeness of the parent-child relationship.             See id.

§ 232.116(3)(c).

       “[T]here is no all-encompassing best-interest standard.” In re P.L., 778

N.W.2d 33, 40 (Iowa 2010). “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 764, 778 (Iowa 2012) (quoting In re

C.B., 611 N.W.2d 489, 495 (Iowa 2000)). The mother’s track record—which

includes fifteen years of substance abuse—is not a good one. The mother has

been using drugs since she was in high school; she is now approximately thirty

years of age. A life of substance abuse is all this mother knows. Although we

commend the mother for her recent sobriety of a few months, such sobriety can

only be described as brief in comparison to her long history of substance abuse,

and her submission to substance-abuse treatment was clearly in response to the

State’s petition to terminate her parental rights. “A parent cannot wait until the eve
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of termination . . . to begin to express an interest in parenting.” C.B., 611 N.W.2d

at 495.    “We hold no crystal ball, and to some extent, the [best-interests]

determination must be made upon past conduct.” In re M.M., No. 16-1685, 2016

WL 7395788, at *4 (Iowa Ct. App. Dec. 21, 2016). While we hope the mother

prevails in her battle with substance abuse, “we cannot deprive a child of

permanency after the State has proved a ground for termination” upon such

sentiments. See A.B., 815 N.W.2d at 777. The child has been out of the mother’s

care and in foster care his entire life. This child needs 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))). We find

termination of the mother’s parental rights is in this young child’s best interests.

       As to the statutory exception to termination cited by the mother, “[t]he court

need not terminate the relationship between the parent and child if . . . there is

clear and convincing evidence that the termination would be detrimental to the

child at the time due to the closeness of the parent-child relationship.” Iowa Code

§ 232.116(3)(c). 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 A.M., 843 N.W.2d at 113). “[T]he parent resisting termination bears the

burden to establish an exception to termination.” A.S., 906 N.W.2d at 476. The

evidence presented does reveal the mother and child share a bond. However, no

evidence was presented that “termination would be detrimental to the child” as a

result of the severance of that bond. Iowa Code § 232.116(3)(c). Given the child’s

very young age and early removal from his mother’s care, the effect termination
                                          8


will have on him will be limited at most. We conclude the mother failed to meet her

burden to establish the statutory exception to termination. See A.S., 906 N.W.2d

at 476.

       C.     Extension

       Next, the mother argues the juvenile court should have granted her

additional time to work toward reunification in light of her recent sobriety and

progress in substance-abuse treatment. 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.”

       The statute requires the court to determine the need for removal will no

longer exist at the end of the extension. In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct.

App. 2005).    The juvenile court was unable to make such a determination,

concluding:

               The record is clear that [the mother] did not make any effort
       to meaningfully address case plan expectations and her substance
       abuse issues until mid-March 2018 when permanency was
       addressed. With [the mother’s] lengthy substance abuse history, the
       court strongly believes that [the child] cannot be returned to her today
       or anytime in the near future despite her being in substance abuse
       treatment for approximately two months. [The mother] admitted [the
       child] could not be placed with her today. Further, the court concurs
       with [DHS] that [the mother’s] sober date is not really 12/1/17, as self-
       reported by Amber. Her refusal to consistently drug test for the
       department leads this court to the conclusion that she has continued
       to use illegal substances throughout this case and that any date of
       sobriety is closer in time to her entry into substance abuse treatment.
                                         9


       While her participation in substance abuse treatment since the
       termination petition has been filed gives the court reason to be
       cautiously hopeful that [she] has committed to a sober lifestyle, this
       Court must look to the best interest of the child. Once the statutory
       timeframes for reunification have passed, permanency must be
       viewed with urgency, particularly with so young of a child. Thus, [the
       mother’s] couple of months of sobriety must be weighed against 15
       years of dependency without treatment. While this court commends
       [the mother] for getting into substance abuse treatment in the last
       few months prior to trial, it cannot conclude that this is due to any
       commitment to sobriety. This child cannot wait for [the mother] to
       grow up and get sober.

       Upon our de novo review of the record, we are also unable to affirmatively

conclude a need for removal would no longer exist after a six-month extension.

The fact that the mother largely resisted and declined to meaningfully participate

in substance-abuse-related services until a termination petition was filed, her

eleventh-hour improvement, and the uncertainty about her ability to continue

sobriety all militate against a conclusion the need for removal would no longer exist

after an extension. Cf. id. at 93.

               There are a number of stern realities faced by a juvenile judge
       in any case of this kind. Among the most important is the relentless
       passage of precious time. The crucial days of childhood cannot be
       suspended while parents experiment with ways to face up to their
       own problems. Neither will childhood await the wanderings of judicial
       process. The child will continue to grow, either in bad or unsettled
       conditions or in the improved and permanent shelter which ideally,
       at least, follows the conclusion of a juvenile proceeding.
               The law nevertheless demands a full measure of patience
       with troubled parents who attempt to remedy a lack of parenting
       skills. In view of this required patience, certain steps are prescribed
       when termination of the parent-child relationship is undertaken under
       Iowa Code chapter 232. But, beyond the parameters of chapter 232,
       patience with parents can soon translate into intolerable hardship for
       their children.
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In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). The same reasoning controls the

mother’s request for an extension. We agree with the juvenile court that an

extension of time is unwarranted.

IV.   Conclusion

      We affirm the juvenile court order terminating the mother’s parental rights.

      AFFIRMED.
