                    IN THE COURT OF APPEALS OF IOWA

                                      No. 18-1239
                               Filed September 12, 2018


IN THE INTEREST OF J.K. and S.K.,
Minor Children,

E.K., Mother,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cherokee County, Mary L. Timko,

Associate Juvenile Judge.



      A mother appeals the termination of her parental rights to her two minor

children. AFFIRMED.




      Theresa Rachel of Fankhauser Rachel, PLC, Sioux City, for appellant

mother.

      Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney

General, for appellee State.

      Lesley D. Rynell of Juvenile Law Center, Sioux City, guardian ad litem for

minor children.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

       A mother appeals the termination of her parental rights to her two minor

children, born in 2007 and 2011. She argues: (1) the State failed to prove the

statutory grounds for termination by clear and convincing evidence, (2) termination

is not in the best interests of the children, (3) the juvenile court should have applied

the statutory exception to termination contained in Iowa Code section

232.116(3)(c) (2018), and (4) the court erred in declining to grant her a six-month

extension to work toward reunification.

I.     Background Facts and Proceedings

       This family came to the attention of the Iowa Department of Human Services

(DHS) in late April 2017 upon information the mother was arrested for possession

of methamphetamine and drug paraphernalia. The mother admitted to using

methamphetamine and marijuana. In early May, a DHS worker conducted a home

visit, during which the mother admitted to using methamphetamine and the father

denied any drug use and any knowledge of drug use on the part of the mother.

Shortly thereafter, the father tested positive for methamphetamine and

amphetamine and the mother tested negative for drugs. The father later reported

to DHS that he and the mother used a cleansing shampoo in order to manipulate

the hair-stat test that was administered and it worked for the mother but not for

him. The mother admitted the same in her testimony at the termination hearing.

The father also readily admitted that he and the mother used drugs together.

       The children were removed from the parents’ care on May 11 and placed in

foster care. The mother underwent a substance-abuse evaluation on May 22, but

she refused to submit to a drug test at the evaluation center.            Subsequent
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revelations included that the parents’ relationship involved verbal abuse and

domestic violence, the family home was uninhabitable and neither parent was

living in it, and both parents were drug addicts. In June, as a result of these

revelations, the children were adjudicated to be children in need of assistance. In

late June, the children were placed with a paternal aunt, where they remained for

the remainder of the proceedings.

       DHS requested the mother submit to drug testing on June 21, but the

mother failed to appear. As a result of the mother’s actions toward the father on

June 28, she was charged with domestic abuse assault. The mother tested

positive for methamphetamine use on July 10. She was admitted into an extensive

outpatient treatment program on July 18. According to her discharge summary,

the mother was inconsistent in attending treatment and minimally participated

when she did attend. She eventually stopped attending treatment altogether and

did not respond to attempts at contact by the treatment program.          She was

unsuccessfully discharged from the program.

       The mother underwent a mental-health evaluation in August.               The

assessment report indicates the mother continued to use methamphetamine at the

time she was evaluated. In late August, DHS discovered the mother began living

with a known drug user. At the termination hearing, the mother admitted to living

with a number of individuals during the proceedings with histories of drug use. On

August 28, the mother tested positive for methamphetamine, amphetamines, and

THC. Throughout the month of September, she evaded a number of random drug

screens.   Late that month, the mother was charged with possession of drug

paraphernalia, along with a number of other crimes, as a result of a traffic stop in
                                        4


which she attempted to evade police. The mother admitted to officers that she

was in possession of a methamphetamine pipe. When officers located the pipe, it

contained burnt residue.

      On November 20, the mother tested positive for methamphetamine,

amphetamines, MDMA, opiates, oxycodone, and THC. She reported she was

taking Percocet and oxycodone at this time. The mother underwent another

substance-abuse evaluation in late November, at which time she tested positive

for methamphetamine and reported she used the same one to three times in the

past month. She tested negative for drugs on three occasions in December and

early January 2018. In early January, however, DHS received information that the

mother was using someone else’s urine to pass her drug screens. Staff at the

treatment center reported it was against their policies to observe the provision of

urine samples.   A sweat-patch test was administered as to the mother from

January 16 through 26.       It came back positive for methamphetamine and

amphetamines. In early 2018, the mother largely discontinued attending group

therapy. She tested positive for methamphetamine and amphetamines on March

19, and she refused to submit to drug tests on March 27 and 29. On April 10 and

May 14, the mother tested positive for marijuana use.

      The record shows the mother continued to use illegal drugs throughout the

entirety of these proceedings. In addition, she was unable to obtain consistent or

suitable housing, although at the time of the termination hearing she recently

rented a one-bedroom apartment. Furthermore, the mother was unemployed

throughout the entirety of the proceedings, although she was “vigorously”

searching for employment at the time of the termination hearing. Due to her
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continued drug use and instability, the mother never progressed beyond fully

supervised visitation with the children. The parents participate in an apparent on-

again-off-again type of relationship that enjoys short stints of, at most, being able

to tolerate one another, but suffers from explosive interactions of rage followed by

long bouts of chaotic marital strife. It is undisputed that the parents and children

share a bond. However, the children have also developed a bond with their relative

caregiver. When initially placed in foster care, the children struggled. They are

now thriving in their relative placement. The children are integrated into the home

with their relative caregiver, who is prepared to adopt the children.

       The State petitioned to terminate the parents’ parental rights. Following a

hearing, the juvenile court terminated both parents’ rights pursuant to Iowa Code

section 232.116(1)(d), (f), (i), and (l). Only the mother appeals.

II.    Standard of Review

       Appellate review of termination-of-parental-rights proceedings is de novo.

In re A.S., 906 N.W.2d 467, 472 (Iowa 2018) (quoting In re A.M., 843 N.W.2d 100,

110 (Iowa 2014)). “We are not bound by the juvenile court’s findings of fact, but

we do give them weight, especially in assessing the credibility of witnesses.” Id.

(quoting A.M., 843 N.W.2d at 110). Our primary consideration is the best interests

of the children. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).

III.   Analysis

       A.     Sufficiency of the Evidence

       As noted, the juvenile court terminated the mother’s parental rights under

Iowa Code section 232.116(1)(d), (f), (i), and (l). The mother’s sufficiency-of-the-

evidence argument is limited to the following:
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               Evidence at trial showed that [the mother] complied with
       [family safety, risk, and permanency] services, had partaken in
       substance abuse treatment, had begun participation in mental health
       services, and had exceeded expectations with regard to visitation.
       The State must prove the statutory grounds for terminating parental
       rights by clear and convincing evidence and did not.

Even if we were to accept this argument as factually correct, which is questionable,

and sufficient to identify error on appeal, which it clearly is not,1 we would conclude

the State met its burden for termination under at least section 232.116(1)(f). See

In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (“On appeal, we may affirm the

juvenile court’s termination order on any ground that we find supported by clear

and convincing evidence.”). It is undisputed the children are four years of age or

older, they have been adjudicated children in need of assistance, and they were

removed from the parents’ care for the last twelve consecutive months with no trial

periods at home. See Iowa Code § 232.116(1)(f)(1)–(3). As to the final element,

when asked at the termination hearing, “[D]o you think you could, realistically, have

the children home today?” the mother responded, “No.” See id. § 232.116(1)(f)(4).

The remaining evidence supports the mother’s testimony. The statutory grounds

for termination under paragraph (f) were shown by clear and convincing evidence.

       B.     Best Interests

       The mother argues termination is not in the best interests of the children.

“In considering whether to terminate the rights of a parent . . . [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



1
  See In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (“A broad, all encompassing argument
is insufficient to identify error in cases of de novo review.”).
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emotional condition and needs of the child[ren].” Id. § 232.116(2). In support of

her best-interests argument, the mother points to the “significant progress” she has

made throughout the proceedings.

       Upon our de novo review of the record, we are unable to characterize the

mother’s steps during these proceedings as either “progress” or “significant.” The

record shows the mother used illegal drugs throughout the proceedings and

frequently lied about and attempted to conceal the same. As such, we give little

credence to the mother’s testimony that she was clean at the time of the

termination hearing or that she would continue to be if her rights were not

terminated.

       Throughout the proceedings, the mother continued to use drugs and was

unable to obtain employment or suitable housing. 2 Her inability to obtain and

sustain sobriety, employment, or suitable housing has a direct and negative impact

on her ability to provide for these children’s safety; long-term growth; and physical,

mental, and emotional well-being. “We hold no crystal ball, and to some extent,

the [best-interests] determination must be made upon past conduct.” In re M.M.,

No. 16-1685, 2016 WL 7395788, at *4 (Iowa Ct. App. Dec. 21, 2016). “It is well-

settled law that we 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 A.B.,

815 N.W.2d 764, 777 (Iowa 2012) (quoting In re P.L., 778 N.W.2d 33, 41 (Iowa


2
 We acknowledge that shortly before the termination hearing the mother obtained an
apartment and was supposedly “vigorously” searching for employment, but a parent
cannot wait until the eve of termination to begin to express an interest in parenting. C.B.,
611 N.W.2d at 495.
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2010)). “[A]t some point, the rights and needs of the children rise above the rights

and needs of the parent.” In re C.S., 776 N.W.2d 297, 300 (Iowa Ct. App. 2009).

That point has been reached in this case.

       Furthermore, contrary to what the mother has been able to provide for these

children since the commencement of these proceedings, the relative placement

has provided these children with a home in which they are thriving, has integrated

the children into that home, and is prepared to adopt the children and provide them

with continued stability and permanency. Continued stability and permanency are

in these children’s best interests. See Iowa Code § 232.116(2)(b); cf. In re M.W.,

876 N.W.2d 212, 224–25 (Iowa 2016) (concluding termination was in best interests

of children when children were well-adjusted to living with their foster parents; the

foster parents were “able to provide for their physical, emotional, and financial

needs”; and the foster parents were prepared to adopt the children).

       C.     Statutory Exception

       Next, the mother argues the statutory exception contained in Iowa Code

section 232.116(3)(c) should be applied to preclude termination. “The court need

not terminate the relationship between the parent and child if . . . there is clear and

convincing evidence that the termination would be detrimental to the child at the

time due to the closeness of the parent-child relationship.”              Iowa Code

§ 232.116(3)(c). The application of the statutory exceptions to termination is

“permissive not mandatory.” M.W. 876 N.W.2d at 225 (quoting A.M., 843 N.W.2d

at 113). “[T]he parent resisting termination bears the burden to establish an

exception to termination.” A.S., 906 N.W.2d at 476.
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       The only evidence the mother provided concerning the application of this

exception to termination was her own testimony: “I think that it would be detrimental

to the boys’ mental health if our rights were terminated. We do have a very strong

bond with our children.     I love them and miss them so much.”            We fully

acknowledge the mother’s bond with her children, but in light of the other evidence

presented, we do not find the evidence clear and convincing to show termination

will be detrimental to the children due to the closeness of that bond. The children

had been out of the parents’ care for more than a year at the time of the termination

hearing and in their relative placement for more than a year when the termination

order was entered. The children initially struggled in foster care, but they thrived

in relative care and developed a bond with their paternal aunt. We agree with the

juvenile court that the permissible exception to termination should not be applied

in this case.

       D.       Extension

       Finally, the mother contends the juvenile court erred in declining to grant

her an extension to work toward reunification. If, following a termination hearing,

the court does not terminate parental rights but finds there is clear and convincing

evidence that the child is a child in need of assistance, the court may enter an

order in accordance with section 232.104(2)(b). Iowa Code § 232.117(5). Section

232.104(2)(b) affords the juvenile court the option to continue placement of a child

for an additional six months if the court finds “the need for removal . . . will no

longer exist at the end of the additional six-month period.” Upon our de novo

review, and based upon the mother’s past performance and self-serving

tendencies, we are unable to make a finding that the need for removal would no
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longer exist after the mother’s requested extension. We therefore affirm the

termination of the mother’s parental rights.

IV.    Conclusion

       We conclude the State presented sufficient evidence to support termination,

termination is in the best interests of the children, the application of an exception

to termination is unwarranted, and the mother is not entitled to an extension. We

affirm the juvenile court order terminating the mother’s parental rights.

       AFFIRMED.
