                   IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1797
                              Filed January 9, 2020


IN THE INTEREST OF E.M.,
Minor Child,

A.M., Mother,
      Appellant,

I.M., Grandfather,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block,

Associate Juvenile Judge.



      A mother appeals the termination of her parental rights to her nine-year-old

daughter; the girl’s grandfather/custodian appeals the denial of a guardianship.

AFFIRMED ON BOTH APPEALS.



      Joseph G. Martin, Cedar Falls, for appellant mother.

      Mark A. Milder of Mark Milder Law Firm, Denver, for appellant grandfather.

      Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

      Tammy Banning, Waterloo, attorney and guardian ad litem for minor child.



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

       We are concerned here with the future of nine-year-old E.M. Worries about

her troubling behaviors and tenuous health led to her removal from home. She

has been in family foster care since May 2018. In October 2019, the juvenile court

issued an order terminating the rights of her mother, Azra. In that same order, the

court refused to create a guardianship with E.M.’s grandfather, Izet.1

       Both Azra and Izet appeal that order, urging a deferral of permanency for

E.M. and guardianship over termination.2        After independently reviewing the

record, we reach the same conclusion as the juvenile court—termination of

parental rights offered E.M. the best chance at a healthy and nurturing childhood. 3

       I.     Facts and Prior Proceedings

       In the spring of 2018, E.M.’s father—who lives in Bosnia—discovered what

he believed to be a compromising photograph of his eight-year-old daughter

posted on her grandfather’s Facebook page. The father contacted Izet. The

grandfather told investigators E.M. used his phone to access the internet and post



1  The grandfather acted as the child’s custodian while her mother was
incarcerated. He fits the statutory definition of custodian. See Iowa Code
§ 232.2(11)(a) (2018). In recognition of that status, the juvenile court appointed
him counsel in the child in need of assistance and termination cases.
2 The juvenile court also terminated the parental rights of E.M.’s father, but he does

not appeal. The State does not challenge the grandfather’s standing to appeal the
termination of the mother’s parental rights. But see In re T.N., No. 02-1633, 2002
WL 31641552, at *1 (Iowa Ct. App. Nov. 25, 2002) (holding grandmother, who
intervened in termination case, lacked standing to appeal the order terminating
parental rights). Because Azra and Izet raise the same issues, we will address
them without regard to the grandfather’s standing.
3 We review termination-of-parental-rights cases de novo. In re M.W., 876 N.W.2d

212, 219 (Iowa 2016). While not bound by the juvenile court’s fact findings, we
give them weight, particularly on credibility issues. Id. The child’s best interests
remain our primary concern. In re L.T., 924 N.W.2d 521, 529 (Iowa 2019).
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the photograph when he was not paying attention. Izet testified “that was my big

error.”

          But that was not his only error, according to the Iowa Department of Human

Services (DHS). Even after the DHS admonished the grandfather and mother to

monitor E.M.’s access to the internet, they failed to do so. The DHS discovered

pornography available to the child through the grandfather’s phone.

          About a month later, the juvenile court ordered E.M. removed from Izet’s

care after she revealed that he touched “her breasts and privates” while helping

her shower.       The DHS also learned E.M. had been engaging in sexually

inappropriate behavior at school. E.M. told social workers she could not live with

her mother, Azra, because “her mother hits her and her mother’s boyfriend hits her

mother.” Azra also had a history of substance abuse. In 2016, the DHS found

Azra and her paramour responsible for denying critical care to E.M.’s sibling based

on their methamphetamine abuse. Two years later, E.M. reported Azra and her

friends were “poking themselves with needles in the home.”

          The State petitioned to have E.M. adjudicated as a child in need of

assistance (CINA) in May 2018. In preparation for the CINA hearing, the Foster

Care Review Board released a report discussing E.M.’s well-being. The report

found the child was “doing well in the foster home but misses her family.” The

report also discussed the child’s health concerns: “[E.M.] is overweight and pre-

diabetic.” The foster family sought help from a dietician. E.M. also had sleep

difficulties because she needed her adenoids removed, but had not had the

surgery because her mother would not sign the necessary permission form. In

September 2018, the juvenile court adjudicated E.M. as a CINA, finding she had
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been “exposed to pornography, substance abuse and significant supervision

concerns.”

      E.M. remained in foster care for the duration of the CINA case. Azra’s

visitation with her daughter was sporadic.      And her substance abuse was

unabated. Azra tested positive for methamphetamine during her pregnancy with

E.M.’s half-sister, who was born in April 2019. Based on her drug use, the district

court revoked Azra’s probation in the summer of 2019; she was released from

prison just before the termination hearing.

      Izet’s supervised visitation with his granddaughter was more consistent but

not always healthy. While in foster care, E.M. received diagnoses of tonsillar

hypertrophy, enlarged tonsils, obstructive sleep apnea, abnormal weight gain,

diabetes, and pediatric obesity. Specialists at the University of Iowa Hospital and

Clinics saw her regularly for these conditions. Yet her grandfather denied she was

overweight. He disregarded her dietary restrictions and was hostile with medical

personnel. Izet also insisted E.M. should have a cell phone despite her dangerous

use of social media when unsupervised.

      The State petitioned for termination of Azra’s parental rights in June 2019.

In August, the court heard from social workers and the grandfather. Izet testified

E.M. had a strong bond with him and it would in her best interest if he was her

guardian and “her mom could play the role of mom.” That view was not shared by

the care coordinator who supervised visits between E.M. and Izet. She testified

Izet would discuss inappropriate adult matters with E.M. during their interactions.

She acknowledged Izet was making better food choices for E.M. but had not fully

embraced the seriousness of E.M.’s health issues. The grandfather also had
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personal health problems that resulted in him falling asleep during the visits. The

care coordinator did not believe E.M. would be safe in her grandfather’s care.

         The juvenile court terminated Azra’s parental rights under Iowa Code

section 232.116(1), paragraphs (b), (e) and (f) (2019). Azra now appeals, but does

not contest the statutory grounds for termination. Instead, she and Izet contend

the juvenile court should have delayed permanency and placed E.M. in a

guardianship with Izet.

         II.   Legal Analysis

         A.    Delay in Permanency

         Both the mother and grandfather argue the juvenile court should have

postponed termination under section 232.104(2)(b). Under that section, the court

can only delay permanency if it can “enumerate the specific factors, conditions, or

expected behavioral changes which comprise the basis for the determination that

the need for removal of the child from the child’s home will no longer exist at the

end of the additional six-month period.” A parent’s past performance gives insight

into the future care they may provide. In re R.K.B., 572 N.W.2d 600, 601 (Iowa

1998).

         The mother and grandfather offer somewhat divergent predictions about

family reunification. Azra argues that Izet “should be credited with the effort that

he has made up to this point, and given additional time to work towards

reunification.” In contrast, Izet asserts: “Absent any intervening events, the mother

would be available to parent the child on a full-time basis within the near future.”

         We do not find that either prospect is realistic on this record. Azra has not

meaningfully engaged in services to address her substance abuse and an
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additional six months would not prepare her for full-time parenting. For his part,

Izet has made some progress in understanding E.M.’s dietary needs, but too many

concerns remain about his ability to appropriately supervise his granddaughter.

On this record, we cannot find that a delay in permanency is warranted.

        B.      Guardianship Option

        The mother and grandfather next argue that instead of terminating Azra’s

parental rights, the juvenile court should have established a permanent

guardianship with Izet. Azra points to the strong bond between E.M. and her

grandfather. Izet contends “if there is a family member waiting in the wings who is

willing and able to provide for the child, termination is not appropriate.”

        Our supreme court has reiterated: “[G]uardianship is not a legally preferable

alternative to termination.” See In re A.S., 906 N.W.2d 467, 477 (Iowa 2018); but

see In re B.T., 894 N.W.2d 29, 34 (Iowa Ct. App. 2017) (approving order for

guardianship with grandmother rather than terminating mother’s parental rights

where “mother and the grandmother [had] a close, mature, and healthy relationship

that is free of conflict”).

        Here, the juvenile court found returning E.M. to Izet’s home posed the same

risk of harm that existed at the time of her removal. Under these circumstances,

we agree creating a guardianship with the grandfather would not be in E.M.’s best

interests. See Iowa Code § 232.116(2) (describing best-interests test). As the

juvenile court concluded, “the best place for further the long-term nurturing and

growth of the child is in an adoptive home.”

        AFFIRMED ON BOTH APPEALS.
