                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1051
                              Filed August 31, 2016


IN THE INTEREST OF A.S. Jr.,
Minor child,

D.S., Mother,
       Appellant,

A.S. Sr., Father,
      Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Susan C. Cox, District

Associate Judge.



       A mother and father appeal separately the termination of their parental

rights to their child. AFFIRMED ON BOTH APPEALS.



       Karmen R. Anderson, Des Moines, for appellant mother.

       Kevin E. Hobbs, West Des Moines, for appellant father.

       Thomas J. Miller, Attorney General, and Janet L. Hoffman, Assistant

Attorney General, for appellee State.

       Nicole Garbis Nolan of Youth Law Center, Des Moines, guardian ad litem

for minor child.



       Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                               2


POTTERFIELD, Presiding Judge.

       The mother and father appeal separately the termination of their parental

rights to their child, born in 2014. The juvenile court terminated each parent’s

rights pursuant to Iowa Code section 232.116(1)(h) (2015), which allows the

court to terminate when the child is under three years of age, has been

adjudicated a child in need of assistance (CINA), has been removed from the

parent’s physical custody for at least six of the twelve preceding months, and

cannot be returned to the parent’s custody at the time of the termination hearing.

I. Background Facts and Proceedings.1

       The family came to the attention of the Iowa Department of Human

Services (DHS) in January 20152 due to allegations the mother was drinking

heavily while caring for the child; the father had recently left the family home. At

the time, the mother denied she had a drinking issue. DHS offered the mother

voluntary services, but she did not complete a substance-abuse evaluation or

participate in services.

       On June 18, 2015, a concerned citizen called 911 after witnessing the

mother’s erratic driving. The child was in the car with the mother at the time.

Police officers followed the mother for several miles with their emergency lights

and sirens activated, but the mother failed to notice them. During this time, the

mother reportedly struck a curb with her vehicle and once swerved into oncoming


1
  The mother’s brief disputes many of the juvenile court’s findings of facts, claiming the
court either misstated or misremembered several things. On our de novo review, we
find little error or mistake with the court’s recitation of facts. We find the facts as follows.
2
  Various reports from DHS note the father was arrested for domestic violence against
the mother in August 2014. Additionally, DHS and the juvenile court were involved with
the father regarding two of his other children before becoming involved with this mother
and this child.
                                          3


traffic, only stopping when she reached her destination—the family home. The

mother failed several sobriety tests before ultimately providing a breath test with

a blood alcohol content (BAC) of .326. The mother questioned the accuracy of

the result, and the officers allowed her to take a second test. The second test

provided a BAC of .340.

       On June 23, 2015, the child was removed from the parents’ care and

placed with the paternal grandmother under the supervision of DHS. The mother

remained in jail on charges for OWI and child endangerment. The mother pled

guilty to both charges and received probation; she was released from jail on July

30, 2015.

       After leaving jail, the mother completed a substance-abuse evaluation and

was diagnosed with “alcohol abuse moderate disorder.” She began intensive-

outpatient treatment. According to DHS’s August 17, 2015 report to the court,

the mother had also recently been given a list of local therapists. DHS indicated,

“[The mother] is aware she needs to engage in therapy.”              The report also

indicated, “Continuation of [the child] in the family home is contrary to [the child’s]

welfare due to the need for [the mother] to engage in substance abuse treatment

and mental health therapy.”

       On August 28, 2015, following a hearing on the matter, the court filed a

dispositional order, which stated in part, “The Court makes the following specific

findings of fact: Mother has engaged in intensive outpatient treatment . . . . She

needs to engage in therapy.”3


3
  According to DHS’s notices from an October 2015 family team meeting, the mother
“agree[d] that she will look into therapy options, to resolve concerns of anger and to
                                          4


       The mother was successfully discharged from intensive-outpatient

treatment in early September 2015 and began continuing care. According to the

mother’s testimony, she relapsed sometime in mid-November. She provided a

“dirty” urinanalysis (UA) in early December, with a BAC of .209.              At the

termination hearing, the mother admitted for the first time that the positive UA

was due to her consumption of alcohol.4          The mother was discharged from

continuing care on December 18, 2015, due to lack of contact for thirty days.

Additionally, the mother chose to use a secure continuous remote alcohol

monitor (SCRAM)—ostensibly to establish her sobriety to DHS.              She began

using the device, which required the mother to breathe into the device four set

times per day, after her positive UA result. Two times in late December, once on

the 24th and once on the 28th, the SCRAM indicated the mother had been

drinking alcohol.   The mother then missed several tests.          She testified she

accidentally left the device in her friend’s car on the 28th, and the friend left the

state with it. The juvenile court did not find this testimony credible.

       On January 3, 2016, the mother was arrested for burglary in the first

degree and assault causing bodily injury. The officer who responded to the call

testified at the termination hearing; he stated he was dispatched “in regards to a

burglary in progress involving three individuals that also mentioned a [T]aser.”

When he arrived at the scene, the officer learned the mother had come to the

home to confront a juvenile over a gaming system that was allegedly stolen from



discuss coping skill so she is not sending messages or making phone calls that are not
appropriate.”
4
  The mother had previously claimed it was due to her use of a cold medicine that she
was taking.
                                        5


the mother. The confrontation became physical between the mother and the

juvenile and then between the mother and the juvenile’s mother. The officer

identified abrasions on the victim and located a Taser on the enclosed front

porch of the home where the scuffle had taken place. According to the officer’s

testimony, the juvenile’s mother reported the mother “had attempted to force her

way into her home several times, and then at one point produced a Taser and

attempted to shock her with it.”    Additionally, the two minor children of the

mother’s former paramour were with her at the time the incident took place.

       The mother remained in jail from January 3 to April 8, 2016—making the

total time she spent incarcerated during the pendency of the case approximately

five months. The mother pled guilty to assault causing bodily injury and the

lesser charge of burglary in the third degree.      She received two years of

probation.

       The first day of the two-day termination hearing took place on February

24. The mother attended. The father, who had not been in communication with

DHS and had not been participating in services, came to part of the hearing on

the first day.   At the hearing, the mother testified.   She admitted DHS had

recommended she attend mental-health therapy as well as address her

substance abuse. She claimed she never started therapy because she took a

mental-health evaluation, and it did not recommend she attend. Additionally, the

mother testified the father had been abusive toward her more than the one time

he was arrested for it in 2014. When asked if the father had an “out of control”

temper, she stated that he does “at times.”        The family safety, risk, and
                                            6


permanency (FSRP) services provider testified that there were no concerns or

issues with the mother’s parenting when she was sober.

       The second day of the termination hearing took place on May 16, 2016.

The father did not attend. Although he had been recently arrested for possession

of methamphetamine, he was not being held in jail at the time of the hearing.

       At the hearing, questions arose regarding whether the mother and the

father were in a relationship again. The mother admitted she had seen and

communicated with the father since she was released from jail. She testified he

had helped her move in to her new home and was helping make some necessary

repairs. She denied they were romantically involved and she asserted she would

keep the children from the father if necessary.                However, the paternal

grandmother testified she had seen the father leaving the mother’s house that

morning when she arrived to pick up the mother for the hearing. Upon further

questioning, the grandmother testified she had not actually seen the father

exiting the home, and it was possible she was confused or had misunderstood.5

       The mother testified she had been sober since before her January 3

arrest. She was again wearing a SCRAM device, and she had not had any

positive results. She had found employment she anticipated starting soon, and

the home she moved into after being released from jail was considered

appropriate by DHS. However, the mother had only recently started attending

mental-health therapy to deal with her self-described anger issues and her

5
  In the termination order, the court noted, “During the grandmother's trial testimony, she
often paused for significant periods of time and looked at the mother. It appeared that
the grandmother repeatedly hesitated and attempted to not say anything to hurt the
mother. The grandmother attempted to pacify the mother—in both mannerisms and
content.”
                                        7


relationship issues, including her history of dating violent men.      Her recent

initiation of contact with the father and her concealment of their relationship—

whether sexual in nature or not—belied her claims.       Additionally, the mother

restarted substance-abuse treatment on April 26, 2016.        She was meant to

attend group sessions twice each week.         When the caseworker called the

treatment center to ask about the mother’s progress after the first two weeks, the

mother’s counselor reported she had missed two of the first four appointments.

The caseworker did not have a report on whether the mother attended the two

other sessions that took place after her call and before the hearing, but the

mother stated she attended them.

      On June 9, 2016, the juvenile court terminated the mother and the father’s

parental rights to the child, pursuant to Iowa Code section 232.116(1)(h).

      The mother and father appeal separately.

II. Standard of Review.

      We review the juvenile court’s decision to terminate parental rights de

novo. In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). Our review involves a well-

established three-step analysis:

      The first step is to determine whether any ground for termination
      under section 232.116(1) has been established. If we find that a
      ground for termination has been established, then we determine
      whether the best-interest framework as laid out in section
      232.116(2) supports the termination of parental rights. Finally, if we
      do find that the statutory best-interest framework supports the
      termination of parental rights, we consider whether any exceptions
      in section 232.116(3) apply to preclude termination of parental
      rights.

Id. at 219–20.
                                         8


III. Mother’s Appeal.

         The mother maintains the child could have been returned to her care at

the time of the termination hearing. In the alternative, she maintains the court

should have given her a six-month extension to work towards reunification,

pursuant to Iowa Code section 232.104(2)(b). She also maintains termination is

not in the best interests of the child and several factors in section 232.116(3)

weigh against terminating her parental rights.

         The mother maintains the child could have been returned to her care at

the time of the termination hearing because she had been sober for over five

months, had an appropriate home, a job, and an ongoing relationship with the

child.

         The mother was able to reestablish herself quickly after being released

from jail. However, due to her incarceration, the mother was unable to establish

that she could maintain sobriety outside of a structured environment. The mother

was arrested and incarcerated for approximately five weeks at the beginning of

the case. She then maintained her sobriety for less than four months before

relapsing. Although she characterizes her relapse as “minor”, in her testimony,

the mother indicated she drank alcohol on at least four separate occasions6

before stopping only after again being arrested and incarcerated. Additionally,

the mother did not notify anyone when she relapsed in November 2015, and she

did not seek help. Rather, the mother continued to lie about the positive tests,

claiming they were in error. At the time of the second day of the termination

6
  The mother testified she initially relapsed in November. She also admitted that the
various test results that showed she had been drinking on December 1, 24, and 28 were
not in error.
                                         9


hearing, the mother had maintained sobriety outside of jail for only approximately

five weeks. In that time, the mother had missed at least two of the six scheduled

sessions for substance-abuse treatment. We agree with the juvenile court that

the child could not be returned to the mother’s care at the time of the termination

hearing.

       In the alternative, the mother maintains she should have been given a six-

month extension to work toward reunification with the child. At the second day of

the termination hearing, the FSRP provider initially testified she would

recommend a six-month extension for the mother to establish she could maintain

her sobriety. However, the FSRP worker was unaware the mother had missed

multiple treatment sessions and was again communicating and spending time

with the father. The worker indicated she did not feel a six-month extension was

appropriate if the mother was still involved with the father.      Additionally, the

caseworker in charge of the case from January 2015—during the voluntary

stage—until March 2016 did not support the extension. We acknowledge the

paternal grandmother has custody of the child and stated she would support a

six-month extension.    As the grandmother indicated, she would prefer if she

could be “grandma” instead of “mom.”         However, a request for a six-month

extension can only be granted if the court can make “the determination 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.” See Iowa Code § 232.104(2)(b). Here, we are not

confident the reasons for removal will not continue to exist in six months. We are

unsure of the mother’s level of commitment to her recovery. Additionally, the
                                           10


mother had only recently started attending therapy7 and had not dealt with the

source of her decisions to date violent criminals. The mother maintained she

would keep the children from the father if DHS believed it was necessary, but we

doubt her sincerity. When she was asked about his history of instability and

violence, the mother defended the father, claiming he was fine when he was on

medications and they “did really well as a married couple and as a family.”

       The mother maintains termination is not in the child’s best interests. She

argues it would be harmful to the child because the child is close to an older

sibling,8 and termination may sever that relationship. The record indicates the

two children are closely bonded and their relationship is important to each child;

we agree it is important they remain a part of each other’s lives. However, we

believe they will do so even if the mother’s rights are terminated. The paternal

grandmother and the older child’s father have coordinated sibling visits

throughout the case.      There have been difficulties at times, but the paternal

grandmother—who is willing to adopt the child if the mother’s rights are

terminated—testified she would continue those visits between the siblings.

       The mother maintains there are two factors weighing against termination

of her parental rights, the bond she and the child share, see Iowa Code

§ 232.116(3)(c), and the fact that the paternal grandmother has custody of the

child, see id. § 232.116(3)(a). The application of the factors is permissive, not


7
  Although the mother testified at various times that she did not believe she needed
therapy or that she was not required to attend it as part of the juvenile proceedings, on
the second day of the proceedings, the mother admitted therapy had been
recommended since disposition and that it “would be very beneficial for [her].”
8
  The older sibling is a child of the mother and a different father. The mother’s rights
have not been terminated as to the older sibling, who has been placed in the care of the
father during the pendency of the case.
                                          11

mandatory. See In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). Here, the juvenile

court considered the factors and found that even though there is a bond between

the child and the mother, the child’s need for permanency and stability outweighs

the possible harm from termination of the mother’s parental rights. See In re

A.M., 843 N.W.2d 100, 113 (Iowa 2014) (citing In re J.E., 723 N.W.2d 793, 802

(Iowa 2006) (Cady, J., concurring specially) (noting the “defining elements in a

child’s best interest” are the child’s safety and her “need for a permanent

home”)); see also In re D.W., 791 N.W.2d 703, 709 (Iowa 2010) (“[O]ur

consideration must center on whether the child will be disadvantaged by

termination, and whether the disadvantage overcomes [the parent’s] ability to

provide for [the child’s] developing needs.”). We agree with the juvenile court

that no permissive factor weighs against terminating the mother’s parental rights.

IV. Father’s Appeal.

       The father maintains the State never established that the child had been

removed from his physical custody. Additionally, he maintains the child could

have been returned to his care at the time of the termination hearing. Finally, he

maintains that a permissive factor of section 232.116(3)(a)—a relative having

legal custody of the child—weighs against the termination of his rights.

       The father maintains the child was never removed from his physical

custody. The father had moved out of the marital home and had not had contact

with the child for several months when the juvenile court became involved with

the family in June 2015.9      Notwithstanding, we note the father was sent an


9
 Another panel of our court recently considered the meaning of “physical custody” within
section 232.116(1)(f). See In re C.F.-H., No. 16-0918, 2016 WL 4379340, at *2–3 (Iowa
                                             12


“original notice and notice of hearing and summons” for the removal hearing.

The father chose not to attend the hearing; the court noted in the removal order

that he was “not present and not participating in DHS case for his other children.”

We find no merit in the father’s assertion that the child was not removed from his

physical custody.

       Next, the father maintains the child could have been returned to him at the

time of the termination hearing, or in the alternative, that a six-month extension to

work toward reunification was warranted. The father did not attend the second

day of the termination hearing. He had not been in contact with the FSRP worker

for an extended period of time, and he was not participating in services. The

father had been previously diagnosed with bipolar disorder and borderline

personality disorder. There was no evidence he was taking his medication as

prescribed; the paternal grandmother testified she did not believe he was

compliant with his medications because she had not seen him in approximately

thirty days and “[u]sually when he’s not doing the right thing, that’s when I don’t

see him.” The father’s psychiatrist told the FSRP worker he was unable to care

for children, due to being mentally unstable. The father had also recently been

charged with possession of methamphetamine. Additionally, although he had a

history of domestic violence, insofar as DHS was aware, the father had not


Ct. App. Aug. 17, 2016). In C.F-H., the panel found the child had been removed from
the physical custody of the father, as required by section 232.116(1)(f), because even
though the court had not entered a removal order, the father had not lived in the family
home with the mother and the child for at least twelve of the last eighteen months. See
id. at *3; compare Iowa Code § 232.116(1)(f)(3) (“The child has been removed from the
physical custody of the child's parents for at least twelve of the last eighteen months . . .
.”), with Iowa Code § 232.116(1)(h)(3) (“The child has been removed from the physical
custody of the child's parents for at least six months of the last twelve months . . . .”)
(emphasis added).
                                         13


participated in services to address his issues. The child could not be returned to

the father’s custody at the time of the termination hearing, and there is no

evidence to support that an extension was warranted.

       The father also maintains termination of his rights is not in the child’s best

interests. Although the father had recently been having visits with the child under

the paternal grandmother’s supervision, the father initially failed to stay in contact

with the child after he left the family home. When the paternal grandmother was

asked about the father’s apparently violent temper, she testified, “If I was a kid

and seen some of the actions of the anger when it comes out, I think they would

feel they are in danger. . . . If you asked the kids if he was in one of those rages,

I’m sure they would say they didn’t feel safe.” When she was asked if the child

would be in actual danger from the father, she responded, “In my profession

when there’s mental issues, you don’t—you can’t second guess.” For these

reasons, we believe termination of the father’s parental rights is in the child’s best

interests.

       Lastly, the father maintains that a permissive factor weighs against

termination—namely that his mother has legal custody of the child. See Iowa

Code § 232.116(3)(a). After reviewing the record in its entirety, we agree with

the juvenile court that the permissive factor should not be applied in this case.

V. Conclusion.

       For the reasons explained above, we affirm the termination of the mother’s

and the father’s parental rights, pursuant to Iowa Code section 232.116(1)(h).

       AFFIRMED ON BOTH APPEALS.
