                     IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0093
                               Filed April 5, 2017


IN THE INTEREST OF B.T.,
Minor child,

A.P., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,

District Associate Judge.




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

REVERSED AND REMANDED WITH DIRECTIONS.




       Zachary C. Priebe of Jeff Carter Law Offices, P.C., Des Moines, for

appellant mother.

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

Assistant Attorney General, for appellee State.

       ConGarry D. Williams of the State Public Defender, Des Moines, guardian

ad litem for minor child.



       Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.

          A.P. appeals the termination of her parental rights to her child, B.T., born

in 2006.1 She does not dispute that grounds for termination of her parental rights

were established.          Rather, she contends the juvenile court should have

established a guardianship for the child with his maternal grandmother because

termination of the mother’s rights is not in the child’s best interests and the

statutory factors found in Iowa Code section 232.116(3) (2016) apply here,

negating the need to terminate. Upon our de novo review of the record, see In re

M.W., 876 N.W.2d 212, 219 (Iowa 2016), we agree. Accordingly, we reverse and

remand the case to the juvenile court with directions.

          I. Background Facts and Proceedings.

          The mother was born in 1989 and began abusing alcohol and drugs when

she was twelve years old. Since the child’s birth in 2006, a pattern has emerged

wherein the mother is able to remain sober for a period of time—sometimes

years at a time—followed by a relapse. When the mother has fallen off the

wagon, the child’s maternal grandmother (Grandmother), and at times the

paternal grandmother, have intervened to care for the child.

          When the mother is sober, she is a dedicated and loving parent who

shares a close relationship with the child. Yet, the mother has relapsed since the

child’s birth at least four times, including methamphetamine use in November

2009, opioid use in November 2012, methamphetamine use in April 2013, and

most recently, heroin use in August 2015.                Her most recent use led to the

initiation of the present child-in-need-of-assistance (CINA) case and the

1
    The child’s father did not appeal the termination of his parental rights.
                                           3


placement of the child in his Grandmother’s care, with supervision by the Iowa

Department of Human Services (DHS), where the child has since remained.

      Services for reunification were offered to the parents, but by July 2016, the

DHS recommended the parents’ parental rights be terminated. At the August

2016 permanency hearing, the mother requested an extension of time for

reunification. The court denied the mother’s request and directed the State to file

a petition for termination of parental rights, which the State subsequently filed.

Thereafter, the mother was arrested for violating her probation and for

committing fourth-degree theft. She was incarcerated until October 19, 2016,

and then was admitted for residential treatment at a women’s treatment facility.

      The termination-of-parental-rights hearing was held November 21, 2016.

By all accounts, the mother’s treatment was progressing, and she was on track to

complete her established treatment goals. She was tentatively scheduled for

discharge on December 9, 2016, at which time the mother would transition to a

sober living facility for six to twelve months. During that time, the mother would

be required to attend treatment and maintain employment.

      The mother testified at the hearing and admitted the child could not be

returned to her care at that time. But rather than terminating her parental rights,

she asked that the court grant the Grandmother guardianship of the child. The

Grandmother also testified, and she was asked about her opinion of terminating

the mother’s parental rights, answering:

      [T]his is [my daughter], and during this whole time that we’ve been
      dealing with this, it hasn’t been [my daughter]; it was my daughter
      under the influence of drugs. [My daughter] is a wonderful mother.
      And I’ve talked to [the child] a lot about this. We do our hour-and-
      15-minute drive . . . to go see her and on the way back home . . . he
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       wants his mother. If his mom is clean and sober, he wants his
       mother.
              And I feel that it’s a process—it’s a long process. As long as
       [the mother] can be in the facility that she’s at . . . , I think she
       needs to take full advantage of that, be there as long as she can
       and get all the help that she can. I do say—this facility that she’s
       going to right now is beyond anything she’s ever had before. It’s a
       great facility. They’re working with her on her—the therapy that she
       needs, which is, I think, one of the hugest parts of what she needs
       to help her. And if she can stick with this and stay in this program
       as long as possible, I would love her to still have the opportunity to
       be his mother.

       Ultimately, the juvenile court terminated the mother’s parental rights,

concluding:

               [The child] is integrated into his [G]randmother’s home. She
       has been there for him during his life, and more particularly since
       his formal removal from his parents’ care and/or custody. She is
       willing to provide him a permanent home by adoption. While [the
       mother] would prefer to have [the child] wait until she has
       completed treatment, he should not have to wait any longer to have
       a permanent home.            [The mother] has demonstrated that
       completion of treatment programs does not indicate that she is
       likely to maintain sobriety.

       II. Discussion.

       The mother now appeals that ruling. She does not dispute that grounds

for termination of her parental rights were established.      See In re P.L., 778

N.W.2d 33, 40 (Iowa 2010) (“Because the father does not dispute the existence

of the grounds . . . , we do not have to discuss this step.”). Rather, she asserts

that a guardianship should have been established, with the Grandmother as

guardian, arguing termination of her rights is not in the child’s best interests and

would be detrimental to the child due to the closeness of their relationship. She

also notes the child is presently in the Grandmother’s custody.        The mother

“submits that there is no functional difference in this case between guardianship
                                           5


and termination due to placement not changing under either scenario,” and she

argues this “weighs against termination given the long-term needs and emotional

condition of [the ten] year old child.” Though this is a close call, for the following

reasons, we agree with the mother that a guardianship should have been

established.2 And in doing so, we are not critical of the juvenile court, for we

have said time and time again that a guardianship is not a legally preferable

alternative to termination. See, e.g., In re N.M., No. 17-0054, 2017 WL 1088119,

at *3 (Iowa Ct. App. Mar. 22, 2017) (citing In re L.M.F., 490 N.W.2d 66, 67-68

(Iowa Ct. App. 1992)); In re S.C., No. 15-1912, 2016 WL 903029, at *4 (Iowa Ct.

App. Mar. 9, 2016) (same); In re K.B., No. 15-1685, 2016 WL 146707, *4 (Iowa

Ct. App. Jan. 13, 2016) (same); In re C.B., No. 14-0704, 2014 WL 3513241, *2

(Iowa Ct. App. July 16, 2014) (same).

       After a termination-of-parental-rights hearing, a number of options are

available to the juvenile court. See Iowa Code § 232.117. If the court finds the

grounds for termination alleged were not established, it must dismiss the

termination-of-parental-rights petition.       See id. § 232.117(2).     If the court

determines “facts sufficient to sustain the petition have been established,” the

court can either “order parental rights terminated,” or it can “adjudicate the child

to be a [CINA] and . . . enter an order in accordance with the provisions of

section . . . 232.104.” Id. § 232.117(3), (5).




2
  Under either scenario, there is no functional difference regarding placement of the
child, but there is a functional difference regarding the legal ramifications between a
guardianship—which can be terminated and the child returned to the mother—and a
termination of parental rights, after which parental rights cannot be reinstated.
                                          6


       Section 232.104(2)(d) sets forth several permanency options for the

child’s placement, including transferring “guardianship and custody of the child to

a suitable person” or transferring “custody of the child to a suitable person for the

purpose of long-term care.”        See id. § 232.104(2)(d)(1), (3).   However, the

placements enumerated in paragraph (d) can only be ordered if the court first

finds that convincing evidence exists showing termination of the parent-child

relationship is not in the child’s best interests and that the child could not be

returned to the child’s home even though “[s]ervices were offered to the child’s

family to correct the situation which led to the child’s removal.”                Id.

§ 232.104(3)(a)-(c).

       “As in all juvenile proceedings, our fundamental concern is the best

interests of the child.” In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). In deciding

what is in the child’s best interests, we follow the framework established in

section 232.116(2), giving “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.” See also

P.L., 778 N.W.2d at 37.        But, “[e]ven though the court may determine that

termination is appropriate under section 232.116(2), the court need not terminate

a parent’s parental rights if any of the circumstances contained in section

232.116(3) exist.”     Id.   These circumstances include a relative having “legal

custody of the child” or a determination that termination of the parent’s parental

rights would be detrimental to the child because of the closeness of the parent-

child relationship. See Iowa Code § 232.116(3)(a), (c); see also In re A.M., 843

N.W.2d 100, 113 (Iowa 2014).
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       At the November 21, 2016 termination-of-parental-rights hearing, only the

mother and Grandmother testified. No one from DHS testified. No attorneys

present at that hearing, including the child’s guardian ad litem, made an

argument to the court on the record advocating for or against termination of

parental rights, though clearly the State’s petition was contested by the parents.

An October 30, 2016 DHS report was entered as evidence at the hearing

wherein the DHS worker recommended termination of parental rights, explaining:

              At this time this worker believes that [the child] is in need of
       a long-term permanent place that will provide him with stability and
       consistency. This worker does not believe that [the parents] are in
       a position at this time to provide that long-term placement for [the
       child]. This worker believes that a termination of parental rights
       hearing needs to be held.
              At this time neither [parent has] addressed their substance
       abuse issues. [The mother] has struggled to follow through with
       treatment. [She] does not have housing and would not have a
       home where [the child] would be able to reside. [The mother] also
       does not have a job and would not be able to support [the child]
       financially. Both parents have not been consistent with visitation
       throughout this case.

The court noted the recommendation in its termination-of-parental-rights ruling,

and it concluded termination of the mother’s parental rights would allow the

Grandmother to provide the child with “a permanent home by adoption.” 3

       Ultimately, the issue comes down to “permanency.”                 Is the child’s

placement with the Grandmother as his guardian less permanent than requiring

the Grandmother to adopt the child? Under the facts of this case, we think not.




3
  We also note the juvenile court’s ruling stated the “child’s guardian ad litem supports
the termination petitions,” but we can find no evidence of this in the record. The case
docket does not show any reports were filed by the guardian ad litem, and the
termination-of-parental-rights hearing transcript is silent as to the guardian ad litem’s
position.
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       Generally, permanency orders are not preferred over the termination of

parental rights. See In re L.M.F., 490 N.W.2d 66, 67-68 (Iowa Ct. App. 1992)

(citing In re M.W., 458 N.W.2d 847, 850 (Iowa 1990) (“Although Iowa Code

section 232.116(2) suggests that the primary consideration in termination cases

is ‘the physical, mental, and emotional condition and needs of the child,’ the

legislature, in cases meeting the conditions of section 232.116(1)(e)(1), (2), and

(3) (1989), has made a categorical determination that the needs of a child are

promoted by termination of parental rights.” (emphasis added)). But see In re

S.J., 451 N.W.2d 827, 832 (Iowa 1990) (“Termination is an outcome of last

resort.”).   But here, we do not find the child’s best interests are served by

termination of the mother’s parental rights. This is not a case where the child’s

future placement will remain in limbo if the mother’s parental rights are not

terminated. The Grandmother has been there for the child all of his life, and she

will continue to do so regardless of whether or not the mother’s parental rights

are terminated. Similarly, the child’s stability and long-term interests will not be

affected if the mother’s rights are not terminated and a guardianship is created.

The child is now ten years old. The child wanted to maintain the relationship with

his mother if she can remain sober, but if not, he wished to be placed with his

Grandmother.      A guardianship with the Grandmother will allow for both

scenarios, thereby serving the child’s best interests and needs. See also, e.g.,

Josh Gupta-Kagan, The New Permanency, 19 U.C. Davis J. Juv. L. & Pol’y 1, 12

(2015) (“Empirical research has demonstrated that options which do not require

terminations lead to caregiving relationships that last just as long as traditional

adoptions. This continuum of equally permanent options suggests that moving to
                                         9


permanency should not by default require terminations.”); Randi Mandelbaum,

Re-Examining and Re-Defining Permanency from a Youth’s Perspective, 43 Cap.

U. L. Rev. 259, 259-60 (2015) (“Federal and state laws mandate that efforts be

made to find permanent families for all children placed in foster care, first, by

reunifying them with their birth families or, when this is not possible, by securing

alternate families through adoption or guardianship.” (emphasis added)).

       The mother and child love each other and share a close bond. There is

no question the mother has experienced relapses during the child’s life.

However, the mother has also had successful years of sobriety. The mother and

Grandmother testified that the treatment program the mother was in at the time of

the termination-of-parental-rights hearing was unlike any other the mother had

undergone.      But even if the mother is not successful, the Grandmother, as

guardian, will protect the child as she has always done.

       It appears the mother and the Grandmother have a close, mature, and

healthy relationship that is free of conflict. The Grandmother has cared for the

child during the mother’s periods of drug use. She has supervised interactions

between the mother and the child during visitations, and the mother has been

respectful of the Grandmother’s decisions.            The mother believes the

Grandmother to be “an absolute wonderful mother and grandmother.”              It is

evident the mother and the Grandmother can work together in the best interests

of the child.

       Upon our de novo review, considering the matters directed by Iowa Code

section 232.116(2), we conclude termination of the mother’s parental rights is not

in the child’s best interests. We also find that two exceptions under section
                                         10


232.116(3)—specifically paragraphs (a) and (c)—apply to negate the need for

termination of the mother’s parental rights under the facts of this case.

Additionally, we find the child still cannot be returned to the child’s home even

though services were offered to the mother to correct the situation that led to the

child’s removal, as described in section 232.104(3)(b) and (c). We therefore

remand the case back to the juvenile court to enter an order transferring

guardianship and custody of the child to the Grandmother pursuant to Iowa Code

section 232.104(2)(d)(1). The juvenile court should review this order annually as

mandated by section 232.104(7)(a), or more often if needed, to ascertain

“whether the best interest of the child is being served.” Alternatively, the juvenile

court may close the CINA case and transfer “jurisdiction over the child’s

guardianship to the probate court” as described in section 232.104(7)(b). We do

not retain jurisdiction.

       REVERSED AND REMANDED WITH DIRECTIONS.
