                    IN THE COURT OF APPEALS OF IOWA

                                   No. 20-0116
                               Filed April 15, 2020


IN THE INTEREST OF A.M. and W.M.,
Minor Children,

K.M., Mother,
      Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Cynthia S. Finley,

District Associate Judge.



      A mother appeals the termination of her parental rights. AFFIRMED.



      Carrie K. Bryner, Cedar Rapids, for appellant mother.

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

Attorney General, for appellee State.

      Kimberly A. Opatz of Linn County Advocate, Inc., Cedar Rapids, attorney

and guardian ad litem for minor children.



      Considered by Bower, C.J., Greer, J., and Gamble, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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GAMBLE, Senior Judge.

      A mother appeals from the termination of her parental rights to her children,

A.M. and W.M.1 On appeal, she (1) challenges the statutory grounds authorizing

termination, (2) argues termination is not in the children’s best interests, and (3)

claims the juvenile court erred in declining to apply an exception under Iowa Code

section 232.116(3) (2019) to preclude termination. We affirm.

I. Scope and Standard of Review

      We review termination proceedings de novo. In re P.L., 778 N.W.2d 33, 40

(Iowa 2010). “We give weight to the factual determinations of the juvenile court

but we are not bound by them. Grounds for termination must be proven by clear

and convincing evidence.      Our primary concern is the best interests of the

child[ren].” In re J.E., 723 N.W.2d 793, 798 (Iowa 2006) (citations omitted).

      We use a three-step process to review the termination of a parent’s rights.

In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). First, we determine whether a

ground for termination under section 232.116(1) has been established. See id. at

472–73. If a ground for termination has been established, then we consider

“whether the best-interest framework as laid out in section 232.116(2) supports the

termination of parental rights.” Id. at 473 (citation omitted). Then we consider

“whether any exceptions in section 232.116(3) apply to preclude termination of

parental rights.” Id. (quoting In re M.W., 876 N.W.2d 212, 220 (Iowa 2016)).




1 The juvenile court previously terminated W.M.’s father’s parental rights. The
court did not terminate A.M.’s father’s parental rights.
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II. Discussion

       A. Statutory Grounds

       The mother challenges the statutory grounds authorizing termination. The

juvenile court terminated the mother’s rights pursuant to Iowa Code section

232.116(1)(h).    Iowa Code section 232.116(1)(h) authorizes termination of a

parent’s parental rights when:

               (1) The child is three years of age or younger.
               (2) The child has been adjudicated a child in need of
       assistance pursuant to section 232.96.
               (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,
       or for the last six consecutive months and any trial period at home
       has been less than thirty days.
               (4) There is clear and convincing evidence that the child
       cannot be returned to the custody of the child’s parents as provided
       in section 232.102 at the present time.

The mother limits her challenge to the fourth element, whether the children could

be returned to her care. We find the children could not be returned to her care.

       The mother lacks the level of stability necessary to safely care for the

children. Her housing is not stable. In the last six months of this case alone, the

mother lived in at least five different locations. And we question the stability of her

current residence. She purchased a trailer with her former paramour. But her

name does not appear on the lot lease, she does not appear on the trailer title, and

she has not paid the seller for the entirety of the trailer yet. Moreover, she admitted

she has paid someone claiming to be the owner’s child, not the confirmed owner

of the trailer. Given these facts, we fear the mother may be forced to relocate once

again. Her lack of stable housing weighs in favor of termination. See, e.g., In re
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C.P., No. 18-1536, 2018 WL 6131242, at *3 (Iowa Ct. App. Nov. 21, 2018)

(“Maintaining stable housing is one the duties of parenting.”).

       In addition to our concerns regarding the mother’s housing, we also

question her mental health and stability. Her mental-health diagnoses include

anxiety disorder, adjustment disorder with depressed mood, cannabis-use

disorder, and post-traumatic stress disorder. These mental-health issues have

contributed to her failure to complete critical steps in the reunification process. Her

visits with the children went from semi-supervised to supervised due to concerns

about the mother’s mental health. See In re C.N., No. 19-1961, 2020 WL 567283,

at *1 (Iowa Ct. App. Feb. 5, 2020) (recognizing visitations should progress and

require less supervision before reunification can occur). And she called a social

worker recently and made comments about wanting to die. No more than two

months prior to the termination hearing, the mother sought out emergency mental-

health services.

       The mother also self-medicates with marijuana. She has not completed

substance-abuse therapy and has missed several drug tests.              However, the

mother notes she has physical-health conditions that make it difficult for her

produce a urine sample on demand. Nevertheless, she remains un-rehabilitated

and conceded at trial, “I feel medically I may depend on it sometimes.”

       We also question the mother’s protective capacity due to her past

involvement with abusive paramours. See In re A.S., No. 17-1810, 2018 WL

542646, at *1 (Iowa Ct. App. Jan. 24, 2018) (collecting cases finding children

cannot be returned to homes with domestic violence).           The mother ended a

relationship with an abusive paramour but claims she reinitiated the relationship
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because A.M. suggested she missed the paramour. This is concerning. Parents

must assess situations and take action to protect their children even when those

actions run contrary to the children’s requests or desires. And the mother, who is

currently pregnant, also reinitiated a relationship with the putative father. We

question this action because the putative father previously broke into her home

drunk and armed with a gun. Given this history, we question the mother’s ability

to prioritize her family’s safety.

       Finally, we question the mother’s general ability to care for both children.

During visits in the community, the mother would focus on A.M. and lose track of

W.M. requiring the case worker to ensure W.M.’s safety. And she failed to attend

to W.M.’s basic needs; she would not change W.M.’s diaper. So W.M. would return

to his foster family in soiled diapers and develop diaper rash.

       For these reasons, we find the first step in our review reveals the State

established a ground for termination under section 232.116(1)(h).

       B. Best Interests

       Next, we consider whether termination is in the children’s best interests. In

considering the best interests of children, we “give primary consideration to the

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

growth of the child[ren], and to the physical, mental, and emotional condition and

needs of the child[ren].” P.L., 778 N.W.2d at 40 (quoting Iowa Code § 232.116(2)).

“It is well-settled law that we cannot deprive [children] of permanency after the

State has proved a ground for termination under section 232.116(1) by hoping

someday a parent will learn to be a parent and be able to provide a stable home

for the child[ren].” Id. at 41.
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       We conclude termination is in the children’s best interests. A.M. remains in

the father’s care, and the father lives with his parents, who serve as W.M.’s foster

parents. So the children are effectively placed together. And W.M.’s foster parents

wish to adopt W.M. so the children could grow up together. See Iowa Code

§ 232.116(2)(b) (noting the juvenile court may consider a placement’s willingness

to permanently integrate the children into the family when making a best-interests

determination); In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App. 1994)

(acknowledging siblings “should be kept together” whenever possible). Further, a

three-month extension prior to the termination hearing was unavailing. So we

believe the mother would continue to present a safety risk to the children but for

termination. See In re C.K., 558 N.W.2d 170, 172 (Iowa 1997) (looking to a

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

is capable of providing in the future” when determining if termination is in the child’s

best interest). Termination will provide the children with a sense of permanency

and stability.

       Accordingly, on the second step of our review, we conclude termination is

in the children’s best interests. See J.E., 723 N.W.2d at 802(Cady, J., specially

concurring) (noting the child’s safety and need for permanency are the “defining

elements” under the best-interest analysis).

       C. Exceptions

       We complete our three-step analysis by considering if section 232.116(3)

should be applied to preclude termination. “[T]he parent resisting termination

bears the burden to establish an exception to termination” under section

232.116(3). See A.S., 906 N.W.2d at 476. Even if the parent proves an exception,
                                           7

we are not required to apply the exception. In re A.M., 843 N.W.2d 100, 113 (Iowa

2014). We exercise our discretion, “based on the unique circumstances of each

case and the best interests of the child[ren],” to determine whether the parent-child

relationships should be saved. Id. (citation omitted).

       The mother argues section 232.116(3)(c) should be applied to preclude

termination. Section 232.116(3)(c) permits the court to forgo termination when

“[t]here is clear and convincing evidence that the termination would be detrimental

to the child[ren] at the time due to the closeness of the parent-child relationship[s].”

We do not find the parent-child bonds between the mother and children to be so

strong to overcome our safety concerns. See In re A.F., No. 19-1668, 2020 WL

569643, at *2 (Iowa Ct. App. Feb. 5, 2020).

       Therefore, on the third step of our review, we conclude no exception in

section 232.116(3) applies to preclude termination of the mother’s parental rights.

III. Conclusion

       The juvenile court was correct in terminating the mother’s parental rights.

       AFFIRMED.
