                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0272
                                Filed April 6, 2016


IN THE INTEREST OF G.B., K.B., A.S., and T.S.,
Minor Children,

J.B., Mother,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, David F.

Staudt, Judge.



      A mother appeals from the order terminating her parental rights.

AFFIRMED.




      Michelle M. Jungers of Iowa Legal Aid, Waterloo, for appellant mother.

      Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

      Melissa A. Anderson-Seeber of Juvenile Public Defender, Waterloo,

attorney and guardian ad litem for minor children.




      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 to her four children. As to her youngest two children, she argues the State

failed to prove the statutory grounds for termination by clear and convincing

evidence and the court should not have terminated her rights because the

children are placed with their father.     Regarding her two older children, the

mother contends the court should have granted her additional time to work

toward reunification. Finally, she asserts she shares a bond with her children

and therefore termination is not in their best interests. We affirm.

       I.      Background Facts and Proceedings

       The mother has four children: G.B., born in October 2009; K.B., born in

April 2011; A.S., born in June 2012; and T.S., born in May 2013. The Iowa

Department of Human Services (DHS) became involved with the family in

December 2013, due to allegations the father of the two youngest children had

assaulted the mother in the presence of all four children. In March 2014, DHS

began voluntary services with the family. In June, DHS learned the mother had

been incarcerated one-and-a-half weeks prior and attempted to locate the

children. At the time, the mother reported the children were with a friend who

planned to take the children to Illinois to be cared for by their maternal

grandmother.     However, the identified caregiver turned out not to be the

children’s grandmother but actually someone who had a history of crack cocaine

use. The children—ranging in age from one to four—were later found in an

apartment in Chicago with no food and no caregiver present. DHS removed the
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children from their mother’s care and custody and placed them in family foster

care.

          In August 2014, the juvenile court adjudicated the children as children in

need of assistance (CINA). In October, the court held a dispositional hearing and

entered an order confirming the CINA adjudication, continuing placement of the

two older children in family foster care, and beginning a trial home placement of

the two younger children with their biological father. In December, the court held

a review hearing and continued placement of the two older children in foster care

and returned the two younger children to the care, custody, and control of their

father.

          In June 2015, the juvenile court held a permanency hearing. Following

the hearing, the State filed a petition for termination of parental rights.          In

September, the court held a termination hearing at which the mother did not

appear.         In November, the court entered an order terminating the mother’s

parental rights to her four children pursuant to Iowa Code section 232.116(1)(f)

and (h) (2015).1 The mother filed a motion to enlarge and amend the juvenile

court’s findings, which the court denied. She 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

1
  The juvenile court terminated the parental rights to any putative fathers of G.B. and
K.B. pursuant to Iowa Code section 232.116(1)(b) (abandonment). The court dismissed
the termination petition as to the biological father of A.S. and T.S.
                                          4

consideration is the best interests of the children. Id. at 776.

       III.   Analysis

       A. Statutory Grounds for Termination

       The juvenile court terminated the mother’s parental rights to A.S. and T.S.

under Iowa Code section 232.116(1)(h).         Under that section, the court may

terminate parental rights if the court finds the State has proved by clear and

convincing evidence the child (1) is three years old or younger; (2) has been

adjudicated CINA; (3) has been removed from the physical custody of the

parents for at least six of the last twelve months, or the last six consecutive

months and any trial period at home has been less than thirty days; and

(4) cannot be returned to the custody of the parents at the time of the termination

hearing. Iowa Code § 232.116(1)(h).

       The mother does not dispute A.S. and T.S. are three years old or younger,

have been adjudicated CINA, and could not be returned to her custody at the

time of the termination hearing. Instead, her argument on appeal focuses on the

third element, arguing the State failed to prove the statutory grounds for

termination as to A.S. and T.S. by clear and convincing evidence because the

children were in the care, custody, and control of their father.

       In In re J.P., No. 15-1084, 2015 WL 5309113, at *3 (Iowa Ct. App. Sept.

10, 2015), we held, “under section 232.116(1)(h) one parent may have parental

rights terminated while a child remains in the care of the other parent.” A.S. and

T.S. were in the care and custody of their mother at the time of the removal and

placed in the care and custody of their father in December 2014. They have

remained out of the care and custody of their mother since June 2014 with no
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trial periods at home. Accordingly, we find clear and convincing evidence the

State has proved the children were removed from the care and custody of their

mother for at least six of the last twelve months, or the last six consecutive

months even though the children remained in the care of their father. We affirm

the juvenile court’s order terminating the mother’s parental rights to A.S. and T.S.

under Iowa Code section 232.116(1)(h).2

       B. Best Interests

       The mother asserts termination is not in her children’s best interests

because they are bonded to her. Even if a statutory ground for termination is

met, a decision to terminate must still be in the children’s best interests after a

review of Iowa Code section 232.116(2). In re P.L., 778 N.W.2d 33, 37 (Iowa

2010). Section 232.116(2) provides “the court shall give 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].”

       Here, the juvenile court examined the factors set forth in section

232.116(2) and concluded:

       [The mother] has not protected the children or maintained a safe
       environment for their well-being as evidenced by earlier statements
       concerning the children found abandoned and huddled in an
       apartment with no food in Chicago. As far as being the best
       placement for furthering and long-term nurturing and growth of the
       children, the return of [T.S.] and [A.S.] to their father has put them
       in an environment in which they will thrive.
              [K.B.] and [G.B.] continue to perform better at school and in
       their placements when they have not had visits from their mother.
       Visits from their mother and her lack of parenting skills and

2
  The mother did not challenge the statutory grounds for termination of her parental
rights to G.B. and K.B.
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       involvement allowed the children to regress to their prior behaviors,
       which were antisocial and unmanageable. A lack of visitation with
       their mother has proved to be beneficial to both [K.B.] and [G.B.]. It
       appears that [the mother] has placed herself on a steady downward
       spiral in which she is currently on the lam and not addressing her
       mental health or substance abuse issues. [The father of A.S. and
       T.S.] has addressed a number of his issues and is providing a
       structured, positive, and loving atmosphere for his two children and
       as such both [A.S.] and [T.S.] will be in a much better environment
       for their physical, mental, and emotional needs. [G.B.] and [K.B.]
       will have their physical, mental, and emotional needs better met by
       a potential adoption and continued absence of their mother in their
       lives.

       We agree with the juvenile court and are convinced all four children’s best

interests require termination of the mother’s parental rights.       These young

children need safety, permanency, and stability. See In re D.W., 791 N.W.2d

703, 707 (Iowa 2010). “Insight for the determination of the child[ren]’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 C.B., 611 N.W.2d 489, 495 (Iowa 2000) (quoting In

re Dameron, 306 N.W.2d 743, 745 (Iowa 1981)).           Based upon our de novo

review of the record, we find termination is in the children’s best interests and

affirm the juvenile court’s order.

       C. Exceptions to Termination

       The mother argues an exception to termination applies with respect to

A.S. and T.S. because they are in the custody of their father. A court need not

terminate parental rights if it finds any of the statutory exceptions under section

232.116(3) apply.      In re P.L., 778 N.W.2d at 39.          Iowa Code section

232.116(3)(a) provides “[t]he court need not terminate the relationship between

the parent and child[ren] . . . [when] [a] relative has legal custody of the
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child[ren].” This factor is permissive, not mandatory, and the court may use its

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, 474–75 (Iowa Ct. App.

2011).

         Our review of the record before us reveals the mother did not appear at

the termination hearing and her whereabouts were unknown at the time because

she was avoiding arrest warrants in Iowa and Illinois. She had not yet addressed

her serious mental health or substance abuse issues and had been unable to

maintain stable housing or employment. Although the mother initially engaged in

some of the numerous services offered to her, her participation was hit or miss,

and she made little progress if any. She did not participate in any services after

late May 2015. She had also been running from her parental duties for over

three months leading up to the termination hearing—she did not see or attempt

to communicate with her children or even inquire as to their well-being.

         We find the children are happy and thriving in their father’s care. We

cannot ask them to continuously wait for their mother to become a stable parent.

See In re D.W., 791 N.W.2d at 707; see also In re A.B., 815 N.W.2d at 777 (“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.” (quoting In re P.L., 778 N.W.2d at 41)). We conclude the fact that A.S.

and T.S. are in the legal custody of their father does not weigh against

termination of the mother’s parental rights here.
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       D. Additional Six Months

       The mother asserts the juvenile court should have granted her an

additional six months to work toward reunification with G.B. and K.B. Iowa Code

section 232.104(2)(b) allows a juvenile court to “continue placement of the

child[ren] for an additional six months,” so long as the court determines that the

need for removal “will no longer exist” at the end of the six-month extension.

Iowa Code § 232.104(2)(b).

       In its order denying the mother’s motion to enlarge and amend the court’s

findings, the juvenile court stated,

       [The mother] has failed in every way to address the issues
       concerning her substance abuse, mental health, and/or parenting
       skills coupled with her lack of maternal instincts. [She] was unable
       to provide the Court any time frame upon which she would be
       addressing the above-issues as she was not present at the time of
       the hearing. . . . [Further, she] has failed to present any evidence
       that would lead the Court to believe that she would be capable of
       completing a 180 degree turnaround concerning her parenting
       skills. The Court does not believe that [the mother] has presented
       any evidence that would lead the Court to believe that a deferral of
       permanency for six months would be appropriate.

       On our de novo review of the record, we agree with the juvenile court and

conclude the mother is not entitled to an additional six months because she has

not proved the need for removal will no longer exist at the end of that six-month

period. See Iowa Code § 232.104(2)(b).

       For the reasons stated above, we affirm the juvenile court’s order

terminating the mother’s parental rights to her four children.

       AFFIRMED.
