                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1499
                             Filed November 6, 2019


IN THE INTEREST OF L.J.,
Minor Child,

L.J., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

District Associate Judge.



       A mother appeals the order terminating her parental rights to her daughter.

AFFIRMED.



       Emily DeRonde of DeRonde Law Firm, PLLC, Johnston, for appellant

mother.

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

Attorney General, for appellee State.

       Kathryn Miller of Juvenile Public Defender, Des Moines, attorney and

guardian ad litem for minor child.



       Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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TABOR, Judge.

       Four-year-old L.J.’s infant brother, C.J., died after their mother gave him an

overdose of Benadryl in January 2018. The family was living in room 207 of the

Motel Relax when the mother found C.J. unresponsive. L.J. and her older sister

were sleeping on cots in the room when police responded to their mother’s 911

call. The State charged the mother with child endangerment and obtained a no-

contact order preventing the mother from interacting with her daughters. More

than one year after the State removed L.J. from her mother’s care, the child

continued to have nightmares about her brother’s death.

       Sixteen months after removal, the juvenile court terminated the mother’s

parental relationship with L.J.1       The mother appeals that termination order,

contesting the statutory grounds under Iowa Code section 232.116(1) (2019), the

best-interests determination under section 232.116(2), and the Court’s decision to

not apply the permissive factor in section 232.116(3)(c). She also claims the State

did not make reasonable efforts to reunite her with L.J. Like the juvenile court, we

see the mother’s pattern of neglect as blocking her path to reunification with L.J.

After our independent review of the record, we affirm the termination of parental

rights.2


1
  The juvenile court did not terminate the mother’s parental relationship with L.J.’s older
sister in this order. The court also terminated the father’s rights to L.J., but he did not
appeal.
2
  We review child-welfare appeals de novo, which means we examine both the facts and
law and adjudicate anew those issues properly preserved and presented. See In re L.G.,
532 N.W.2d 478, 480 (Iowa Ct. App.1995). The State bears the burden to prove the
allegations in its petition by clear and convincing evidence. See Iowa Code § 232.96(2).
That standard requires more than a preponderance of evidence but less than proof beyond
a reasonable doubt. See L.G., 532 N.W.2d at 481. To affirm, we must have no serious
or substantial doubt about the correctness of a particular conclusion the juvenile court has
drawn from the evidence. Id.
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    I. Facts and Prior Proceedings

       With her two daughters in tow and nine months pregnant with C.J., the

mother moved from Alabama to Iowa in the summer of 2017. She did so in

violation of an Alabama court order placing custody of the older daughter with her

father. The mother alleges the father had a history of assaulting her. At the time

of her move, Alabama child protection workers were investigating the mother for

leaving four-year-old L.J. home alone.         The mother minimized the incident,

claiming she went to the store to get milk while L.J. was asleep in bed. About the

same time, the mother sent her two teenaged sons to live with their father in

Tennessee, though they had not been in his care before.

       In Iowa, the mother stayed with relatives before moving into a motel with

her three children. In mid-January 2018, police arrived at the motel to investigate

an assault against the mother by her paramour. The paramour admitted strangling

the mother while she was holding six-month-old C.J. in the motel hallway. Police

arrested the paramour, and the mother obtained a no-contact order.3

       About a week later, police and paramedics returned to the motel to find a

lifeless infant in the room with the mother and her two daughters. The room was

littered with dirty clothes and garbage; liquor and medicine bottles were accessible

to the children. At the scene, the mother said C.J. was sleeping in her bed when

she awoke in the early morning hours to find him not breathing. But others in the




3
 The mother violated this no-contact order in February 2018 by renewing interactions with
her paramour.
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motel told police that after midnight they had seen and heard the mother in another

room in the motel, a floor away from the room where her children slept. The mother

told emergency responders she had not given the baby any drugs. She later

admitted giving him a “little bit of Benadryl” because he was fussy. An autopsy

revealed the baby had “acute diphenhydramine intoxication.” The toxicology report

described diphenhydramine as “a sedating over-the-counter medication.”              In

connection with C.J.’s death, the State charged the mother with felony child

endangerment. She pleaded guilty to a lesser-included aggravated misdemeanor.

The sentencing order prohibited the mother from having contact with her

daughters.

       Not surprisingly, C.J.’s death shattered this already fragile family. After the

mother faced criminal charges, the Iowa Department of Human Services (DHS)

removed L.J. from her care. The juvenile court adjudicated L.J. as a child in need

of assistance (CINA) in May 2018. The next month, in a dispositional order, the

court noted L.J. “displayed behavioral issues while in shelter which made her

difficult to place, and has suffered the trauma of the death of a sibling, separation

from another sibling and separation from her mother in the last five months.” Even

after the DHS placed L.J. in a foster home, she acted aggressively in her

kindergarten class—including “screaming and cussing.”

       In the ensuing months, the mother made little progress toward reunification.

She was slow to comply with the juvenile court order to complete substance-abuse

and mental-health evaluations. When the mother did obtain a substance-abuse

evaluation, she failed to report her alcohol use. She was also diagnosed with major
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depressive disorder, anxiety disorder, and borderline personality disorder.        In

August 2018, the mother attempted suicide—for the third time since C.J.’s death.

       In April 2019, the State petitioned to terminate the mother’s parental rights.

About one month later, the mother sought modification of the no-contact order after

having no interactions with L.J. for more than one year. The juvenile court held a

termination hearing in June 2019. L.J.’s therapist testified that the five-year-old

described “having some nightmares about her brother.” L.J. told the therapist that

she “missed her mom.” The therapist recommended any visitation between L.J.

and her mother start in a “therapeutic setting.” She opined that grief and trauma

can make a parent “emotionally unavailable to their child.”

       The mother testified she was on a medication regimen for her mental health

and had been seeking help from a therapist and a domestic-violence advocate. In

her testimony, the mother acknowledged a history of neglecting her children, but

insisted she had “changed” and she “knew better now.” She discussed C.J.’s

death saying, “I learned my lesson with him.” But she also insisted C.J. “did not

die from a Benadryl overdose. The Benadryl was not lethal enough to kill him.”

       In an August 2019 order, the juvenile court terminated the mother’s parental

rights to L.J. under Iowa Code section 232.116(1), subsections (e) and (f). The

mother now appeals.

   II. Analysis

       Terminations follow a three-step analysis. In re P.L., 778 N.W.2d 33, 40

(Iowa 2010). First, the juvenile court must decide if the State proved one of the

grounds listed for termination in section 232.116(1). Id. After finding that proof by

clear and convincing evidence, the court must consider if termination is in the best
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interests of the child by applying the factors in section 232.116(2). Id. Then, if the

factors require termination, the court must see if any circumstances in section

232.116(3) compel foregoing termination. Id.

   A. Statutory Grounds and Reasonable Efforts

       When the juvenile court terminates parental rights on more than one

ground, “we need only find termination appropriate under one of these sections to

affirm.” In re J.B.L., 844 N.W.2d 703, 704 (Iowa Ct. App. 2014). Here, we focus

on section 232.116(1)(f). That paragraph requires proof of four elements: (1) the

child must be at least four years old; (2) the child must have been adjudicated

CINA; (3) the child must have been removed from the home for at least twelve of

the last eighteen months, or for the last twelve consecutive months with any period

at home being less than thirty days; and (4) the child cannot be returned home as

provided in section 232.102 at the present time. See In re A.M., 843 N.W.2d 100,

111 (Iowa 2014) (interpreting statutory language “at the present time” as the time

of the termination hearing).

       In her petition on appeal, the mother contends L.J. could have been

returned to her custody. But she did not express that certainty at the hearing. At

the hearing, the mother asked for more time acknowledging “obviously she’s not

going to be able to come live with me today. If the therapist is recommending that

visitations start—we haven’t even started visitations.”

       On this record, we agree with the juvenile court’s finding the mother has

unresolved trauma and mental-health challenges that prevent reunification with

L.J. She has failed to fully address her role in C.J.’s death or resolve “her pattern”

of neglectful parenting.
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       The mother also argues the DHS failed to provide reasonable efforts to

prevent the need for termination. Particularly, she points to the lack of visitation.

Iowa Code section 232.102(9) requires the DHS to “make every reasonable effort

to return the child to the child’s home as quickly as possible consistent with the

best interests of the child.” See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000)

(quoting Iowa Code section 232.102(7)); See also 2017 Iowa Acts ch. 54, § 31

(renumbering subsections of section 232.102). “The State must show reasonable

efforts as a part of its ultimate proof the child cannot be safely returned to the care

of a parent.” C.B., 611 N.W.2d at 493.

       The juvenile court rejected the mother’s attempt to blame the DHS for not

having the no-contact order modified to allow visitation with L.J. The court believed

seeking modification was the mother’s responsibility. The court noted, “She had

two attorneys who could have assisted her in having the order modified but she

made no effort to do so for almost an entire year.” We reach the same conclusion

as the juvenile court. The mother’s criminal liability for C.J.’s death—and the

associated no-contact order—prevented the DHS from scheduling visitation with

L.J. The termination order listed the services provided to the mother. The DHS

made reasonable efforts toward reunification consistent with L.J.’s best interests.

   B. Best Interests

       The mother next argues termination of parental rights is not in L.J.’s best

interests. See Iowa Code § 232.116(2). She asserts: “The court put the child in

limbo when it issued the termination order as there is no one in place to adopt this
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child.” She also warns if the child finds a permanent placement in Iowa, she “will

likely not have regular contact” with her half-sister in Alabama.4

       In making the best-interests determination, we give primary consideration

to the child’s safety, the best placement for furthering her long-term nurturing and

growth, as well as her physical, mental, and emotional condition and needs. Id.;

P.L., 778 N.W.2d at 37. Safety and the need for a permanent home mark the

“defining elements in a child’s best interest.” In re J.E., 723 N.W.2d 793, 802 (Iowa

2006) (Cady, J., concurring specially).

       Those defining elements figured prominently in the views of L.J.’s guardian

ad litem (GAL), as expressed at the termination hearing. The GAL recognized

“grief can be paralyzing” and the mother did suffer grief at the loss of C.J. But the

GAL believed the mother’s inability to be a safe parent was “a long-term pattern of

hers.” The GAL explained:

              It troubles me obviously greatly that we don’t necessarily have
       a solid concurrent plan for [L.J.], and I know she loves her mother,
       and I know her mother loves her, but I just haven’t seen the kind of
       changes in her behavior that would indicate that she could provide
       for the safety of [L.J.], . . . I do believe based upon [L.J.’s] need for
       permanency and stability and the inability of assurances that her
       mother can provide the care she needs, that would be in the best
       interest of this child to grant the State’s relief request in the petition
       to terminate parental rights.

       The GAL’s opinion is persuasive. In determining best interests, we consider

the parent’s past performance, “because it may indicate the quality of care the

parent is capable of providing in the future.” In re L.H., 904 N.W.2d 145, 149 (Iowa




4
 Our case law recognizes the value of sibling relationships. See In re T.J.O., 527 N.W.2d
417, 420 (Iowa Ct. App.1994). But preserving the mother’s parental rights to L.J. does
not assure the sisters will be reunited.
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2017). Like the GAL and the juvenile court, we find troubling the mother’s pattern

of neglectful parenting. Thus, we reject the mother’s argument that termination of

her parental rights is not in L.J.’s best interests.

   C. Countervailing Factor

       As a final argument, the mother urges termination would be detrimental to

L.J. because of the closeness of the parent-child relationship. See Iowa Code

§ 232.116(3)(c). She contends: “A person should not be denied the ability to

parent her child because she lost another child and is still learning to heal from

that incident.”

       Applying section 232.116(3)(c), we must decide if severing the legal

relationship would be harmful to L.J. See In re A.S., 906 N.W.2d 467, 475–76

(Iowa 2018) (holding burden to prove this permissive exception rests on the parent

once the State satisfies the statutory ground for termination). There is no question

L.J. was traumatized by losing contact with her mother. But that trauma arose from

the mother’s own actions, and their separation continued because of the mother’s

inaction in seeking to modify the no-contact order. The record does not show their

relationship remained so close that L.J. will be disadvantaged by the termination

or any detriment would outweigh the mother’s inability to provide a safe home for

her daughter. See In re D.W., 791 N.W.2d 703, 709 (Iowa 2010).

       AFFIRMED.
