                     IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0349
                               Filed June 6, 2018


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

A.H., Mother,
       Appellant.
________________________________________________________________


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

Associate Judge.



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

AFFIRMED.



       Jessica J. Chandler of Chandler Law Office, Windsor Heights, for

appellant mother.

       Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

       Karl Wolle of Juvenile Public Defender Office, Des Moines, guardian ad

litem for minor child.



       Considered by Vogel, P.J., and Doyle and Bower, JJ.
                                        2



VOGEL, Presiding Judge.

       A mother appeals the termination of her parental rights to her daughter,

asserting the State failed to prove the grounds for termination and termination

was not in the best interests of the child. Because the mother was incarcerated

and she did not attend to her substance abuse and other issues, the child could

not be returned to her care at the time of the termination hearing. Also, because

termination is in the child’s best interests and there are no impediments to

termination, we affirm.

   I. Background Facts and Proceedings

       The child, born in March 2015, initially came to the attention of the Iowa

Department of Human Services (DHS) in October 2015 after the department

received allegations the mother was abusing substances and unable to safely

parent A.L.   As the investigation was pending, the mother was arrested in

Minnesota on a probation violation warrant and held there for several days. Over

the next several months, the DHS monitored the family due to concerns of

domestic abuse and drug and alcohol abuse by the mother and father.

       In December 2016, the mother drove A.L. to the emergency room while

apparently under the influence of prescription drugs.    A.L. was subsequently

removed from the home and placed with her maternal grandparents. In February

2017, the mother was arrested and charged with theft in the third degree. The

mother and the father had a volatile relationship that consisted of drug and

alcohol abuse, resulting in domestic violence and a no-contact order. Despite

the no-contact order, and a subsequent no-contact order requested by the father,
                                          3


the mother and father continued to communicate, and the father provided the

mother with transportation.     A.L. was adjudicated in need of assistance on

February 16, 2017, based on the parents’ substance-abuse issues and domestic-

violence concerns.1

       In March 2017, the mother was arrested for operating while intoxicated

(OWI)—second offense, and she tested positive for methamphetamine and

amphetamines. The child was moved to her paternal grandmother’s care in April

because the maternal grandmother was unable to set appropriate limits with the

mother. In May, the mother entered inpatient treatment, but she was discharged

shortly thereafter for possessing prescription medication in her room and giving

medication to another patient. She entered another inpatient treatment program

in June. In September, the police found the mother unresponsive in the driver’s

seat of her vehicle. Prescription medication was found in the vehicle, and she

was arrested and charged with OWI—third offense and failure to report

contraband at a correctional institute. In October, the mother was hospitalized

after overdosing on prescription medication. In November, the mother pleaded

guilty to her two OWI charges and the theft charge. Also in December, the child

was removed from the paternal grandmother’s care due to the DHS’s concerns

that the paternal grandmother would return the child to the father even if his

parental rights were terminated. The child was then placed with her maternal

aunt and uncle in Minnesota where she remained at the time of the termination

hearing.


1
  A.L. was adjudicated in need of assistance under Iowa Code section 232.2(6)(c)(2) and
(n) (2017).
                                            4


       Months earlier, at the June 2017 permanency review hearing, the district

court found the parents “demonstrated repeated dishonesty [regarding] their

substance abuse and toxic relationship,” and it determined termination was the

permanency goal. The State filed a petition to terminate the parents’ parental

rights on October 2, 2017, which came on for hearing on January 9, 10, 24, and

25, 2018. The court issued its order on February 11, terminating both parents’

parental rights under Iowa Code section 232.116(1)(h) (2018).

       The mother appeals.2

    II. Standard of Review

       Our review of termination proceedings is de novo, giving weight to the

district court’s fact findings but not being bound by them. In re A.B., 815 N.W.2d

764, 773 (Iowa 2012).

    III. Grounds for Termination

       The mother asserts the State failed to prove the statutory grounds for

termination under Iowa Code section 232.116(1)(h), claiming A.L. can be

returned to her care “in the future.” However, to terminate parental rights under

Iowa Code section 232.116(1)(h), the State must establish the child (1) is three

years old or younger, (2) has been adjudicated a child in need of assistance, (3)

has been removed from the home for six of the last twelve months, and (4)

cannot be returned to the parent’s custody as provided in section 232.102 “at the

present time.” Iowa Code § 232.116(1)(h)(1)-(4) (emphasis added); See In re




2
 The father initially filed a timely notice of appeal, but he did not file his petition on
appeal within fifteen days and his appeal was dismissed.
                                           5

A.M., 843 N.W.2d 100, 111 (Iowa 2014) (indicating “at the present time” means

at the time of the termination hearing).

        The record establishes the mother has failed to abstain from abusing

prescription medication, and has continued to have contact with the father

despite the no-contact orders, and the child cannot be safely returned to her care

at the present time without the risk of adjudicatory harm. See Iowa Code §

232.116(1)(h)(4). Even as late as November 2017, the visitation supervisor cut

the mother’s visit with A.L. short after observing the mother having difficulty

walking straight, keeping her balance, pushing the stroller, and keeping her eyes

open.    Moreover, despite a domestic-violence incident with the father that

resulted in a no-contact order, the mother and father were both found to be in

contempt after violating the no-contact order on multiple occasions.

        On December 21, the mother was sentenced on her two OWI convictions

and a theft conviction. She received a sentence consisting of five years on the

OWI—third, two years on the theft—third, and one year on the OWI—first, with

the sentences ordered to run concurrently. The mother remained in prison at the

time of the termination hearing. With no progress being made on the issues that

were the mother’s obstacles to reunification, we agree with the district court’s

conclusion the State proved by clear and convincing evidence the child could not

be safely returned to the mother at the present time. See id.

   IV. Best Interests

        Next, the mother argues that termination is not in the child’s best interests.

We “give 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,
                                         6

mental, and emotional condition and needs of the child.” Id. § 232.116(2). We

may consider the length of time the child has been in the foster family, the

integration of the child into that family and the “desirability of maintaining that

environment and continuity for the child,” as supported by the record.            Id.

§ 232.116(2)(b)(1). These considerations indicate termination is in the child’s

best interests because she was removed from the mother at a young age, and

the mother has not been able to put the child’s needs ahead of her own. “[W]e

cannot deprive a child 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.” In re P.L., 778

N.W.2d 33, 41 (Iowa 2010). The DHS caseworker testified that A.L. is adjusting

well to her new placement, with her aunt and uncle and their children—A.L.’s

cousins— and her needs are being met.

        Accordingly, we agree with the district court that it was in the child’s best

interests to terminate the mother’s parental rights. See Iowa Code § 232.116(2).

   V. Impediments to Termination

       Finally, the court must consider if any statutory considerations set forth in

section 232.116(3) should serve to preclude termination. “While a finding of any

of these factors allows us to choose not to terminate parental rights, ‘[t]he factors

weighing against termination in section 232.116(3) are permissive, not

mandatory.’” In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (alteration in original)

(quoting A.M., 843 N.W.2d at 113).       The mother asserts her bond with A.L.

should preclude termination, yet she sabotaged her own ability to maintain a

bond with A.L. See Iowa Code § 232.116(3)(c). The visitation supervisor ended
                                        7


one visit prematurely after the mother arrived under the influence.       During

another visit, the mother was asked to leave after being disruptive and using

profanity.   Any bond between the mother and the child should not preclude

termination. See id. Moreover, her claim that a guardianship would be preferred

over termination was rejected by the district court, and we agree as it would not

provide A.L. with the permanency she so deserves. See id. § 232.116(3)(a).

   VI. Conclusion

       Because the mother was incarcerated and she did not attend to her

substance abuse and other issues, the child could not be returned to her care at

the time of the termination hearing. Also, because termination is in the child’s

best interests and there are no impediments to termination, we affirm.

       AFFIRMED.
