                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0236
                               Filed April 8, 2015


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

K.B., Mother,
Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, Gary P.

Strausser, District Associate Judge.



      The mother appeals the termination of her parental rights to her daughter,

S.C. AFFIRMED.



      Esther J. Dean, Muscatine, for appellant mother.

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

Attorney General, Alan Ostergren, County Attorney, and Oubonh White,

Assistant County Attorney, for appellee State.

      Christine Boyer, Iowa City, attorney and guardian ad litem for minor child.



      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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VOGEL, P.J.

       The mother appeals the termination of her parental rights to her daughter,

S.C. She asserts the juvenile court improperly terminated her rights under Iowa

Code section 232.116(1)(e) and (h) (2013), termination is not in S.C.’s best

interests, and the relative-placement consideration should have precluded

termination.   We conclude that, due to the mother’s placement in a halfway

house, drug use, and unresolved mental health issues, S.C. cannot be returned

to the mother’s care; consequently, the juvenile court properly terminated her

parental rights pursuant to Iowa Code section 232.116(1)(h). Furthermore, there

is no bond between S.C. and the mother because of a lack of contact, and

therefore termination is in S.C.’s best interest. S.C. is also not placed with a

relative, and so the consideration of relative placement found in Iowa Code

section 232.116(3) does not preclude termination. Consequently, we affirm the

order of the juvenile court terminating the mother’s parental rights.

       S.C., born February 2014, first came to the attention of the Department of

Human Services (DHS) upon her birth. She was removed on February 25, 2014,

due to domestic violence between the mother and father and their use of

synthetic cannabis (K2) while caring for S.C. She was placed in foster care, first

in one foster home then in a pre-adoptive home, where she remained at the time

of the termination hearing. S.C. was adjudicated a child in need of assistance

(CINA) on April 18, 2014. The mother has not had custody of S.C. since the

removal.

       The mother has four older children, and DHS was involved with them at

the time of S.C.’s birth due to the mother’s drug use and lack of supervision as to
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these older children. None were in her custody during the pendency of S.C.’s

juvenile proceedings. The mother had a no contact order in place regarding

S.C.’s father, which stemmed from his domestic abuse assault conviction, with

the mother as the victim. Both were in violation of this order, and both were

using K2 and cannabis while caring for the children. The mother tested positive

for THC and K2 on February 26, 2014.           Because she was on supervised

probation for a previous drug conviction, this was a violation of her probation and

the mother was arrested. She was sentenced to a term of incarceration not to

exceed five years on April 10, 2014. She was incarcerated from April until July,

2014, and from late July until August, 2014.

      Shortly after S.C.’s birth and prior to sentencing, the mother checked

herself into an inpatient mental health facility at the University of Iowa. She

remained there until the time of her first incarceration. Upon her final release

from prison, the mother was placed in a work release program and a halfway

house, where she remained at the time of the termination hearing. She remained

sober while in the program.

      While incarcerated, the mother did not have visits with S.C. until shortly

before her release. At the termination hearing, the DHS worker testified the

mother failed to place her on the visitor’s list, which impeded the worker from

arranging visits. The mother denied this and stated she attempted to get the

visits approved. The mother had a few fully supervised, one-hour visits with S.C.

while at the residential program.

      The mother has several mental health issues. She has been diagnosed

with posttraumatic stress disorder, depressive disorder, and an anxiety disorder.
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An evaluation connected with the juvenile proceedings performed on August 29,

2014, also added a diagnosis of antisocial personality disorder. The mother has

been prescribed medication for these issues but either does not take it or does

not take it as prescribed. The mother testified she realizes the extent of her

mental health issues and intends to take her medication appropriately and

otherwise address these problems. Additionally, at the time of the termination

hearing the mother was employed, though she did not have a place to reside

after her release from the halfway house.

       Due to the mother’s inability to care for S.C., the State filed a petition to

terminate her parental rights on September 15, 2014. A contested hearing was

held on October 17 and October 22, 2014, in which the mother requested that

S.C. be placed with her sister and that the relative-placement exception should

preclude termination.1 On January 28, 2015, the juvenile court issued an order

terminating the mother’s parental rights pursuant to Iowa Code section

232.116(1)(e) and (h).2 The mother appeals.

       We review termination proceedings de novo. In re S.R., 600 N.W.2d 63,

64 (Iowa Ct. App. 1999). The grounds for termination must be proved by clear

and convincing evidence. Id. Our primary concern is the child’s best interest. Id.

When the juvenile court terminates parental rights on more than one statutory

ground, we only need find grounds to terminate under one of the sections cited


1
  The DHS worker’s testimony at the hearing established that at the beginning of the
CINA proceeding the aunt indicated she did not want to take custody of S.C.; however,
in the middle of June 2014, the aunt stated she would like to be considered as a
placement for S.C. Paperwork for a criminal background check was provided to her, but
the aunt did not complete it. Consequently, S.C. was never placed with the aunt.
2
  The father consented to and the court terminated his parental rights. The father does
not appeal.
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by the juvenile court to affirm. Id. To terminate parental rights under Iowa Code

section 232.116(1)(h), the State must prove the child is three years old or

younger, has been adjudicated CINA, has been removed from the home for at

least six of the last twelve months, and cannot be returned to the mother’s

custody at the present time.

      Upon review of the record, the juvenile court properly terminated the

mother’s parental rights under paragraph (h).       The mother has significant

substance abuse and mental health issues that remain unresolved, which

indicates S.C. cannot be returned to her care within any reasonable timeframe.

As the juvenile court noted:

             [The mother] is not capable of breaking her lifelong history of
      associating with individuals with a significant substance abuse
      history and criminal involvement. She makes poor decisions that
      impact the safety of her child. Her continued association with
      individuals who abuse controlled substances results in the
      continued relapse by [the mother] and an inability to provide
      appropriate supervision to her child(ren).
             ....
             [The mother] and her family initially came to the attention of
      the Department of Human Services in April of 2013 due to
      supervision and substance abuse concerns. Those concerns
      remained throughout the underlying child in need of assistance
      cases. Supervision and substance abuse concerns were the
      reasons [S.C.] was removed from the custody of her parents in
      February of 2014.           Unfortunately, [the mother’s] history
      demonstrates she will be unable to maintain sobriety and stability
      outside of a structured setting.

      The record supports this assessment. Despite the receipt of numerous

services, the mother is unable to provide a stable, sober environment in which to

raise S.C. Though the mother stated at the termination hearing she realized the

extent of her problems and intends to better address them in the future, she has

not made any measurable progress indicating she will be able to do so to the
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extent she can care for S.C. In determining the future actions of the parent, her

past conduct is instructive. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). It is

clear the mother has been unable to address her severe substance abuse and

mental health issues, and, as the juvenile court noted, it is unlikely she will

maintain sobriety in a non-structured setting, or avoid the company of those with

similar substance abuse problems and criminal history. It also appears doubtful

the mother will properly address her mental health issues, given her lack of

medication compliance and follow-through with mental health services during the

pendency of the juvenile proceedings. Consequently, we conclude the State

proved by clear and convincing evidence S.C. cannot be returned to the mother’s

care within the meaning of paragraph (h).

      Termination is also in S.C.’s best interest. She does not share a bond

with the mother due to the mother’s incarceration throughout the majority of

S.C.’s life, with only a few visits towards the end of the mother’s sentence and

during her stay in the halfway house.       We further note that the mother’s

incarceration is not an excuse for a lack of contact with S.C. See In re E.K., 568

N.W.2d 829, 831 (Iowa Ct. App. 1997). Given the mother’s lack of a bond with

S.C., termination is in S.C.’s best interest. See Iowa Code § 232.116(2). We

further find it encouraging S.C. has been placed in a pre-adoptive home.

      Additionally, the relative-placement consideration does not apply. Though

the mother requested S.C. be placed with her sister, that placement did not

occur. Testimony at the hearing indicated this was due to the aunt’s failure to

comply with a criminal background check after eventually indicating she would be

willing to be a placement consideration.     In this context, we note that “[a]n
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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). Because S.C. was not

placed with the mother’s sister, the relative-placement consideration found in

Iowa Code section 232.116(3) does not preclude termination.

      Given the foregoing conclusions, we find the juvenile court properly

terminated the mother’s parental rights, and we affirm.

      AFFIRMED.
