                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0205
                               Filed June 5, 2019


IN THE INTEREST OF A.W., Z.H., Z.W., and Z.W.,
Minor Children,

D.H., Mother,
       Appellant,

A.W., Minor Child,
      Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, David F. Staudt,

Judge.

      A mother and a child appeals the termination of the mother’s parental rights.

AFFIRMED ON BOTH APPEALS.



      Jamie L. Schroeder of The Sayer Law Group, P.C., Waterloo, for appellant

mother.

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

General, for appellee State.

      Melissa A. Anderson-Seeber of Juvenile Public Defender’s, Waterloo,

attorney and guardian ad litem for minor children Z.H, Z.W., and Z.W. and attorney

for A.W.

      Heather Feldkamp of Feldkamp Law Office, Waterloo, guardian ad litem for

minor child A.W.



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


VAITHESWARAN, Presiding Judge.

       A mother appeals the termination of her parental rights to four of her seven

children, born in 2006, 2012, 2014, and 2017. She contends (1) the State failed

to prove the grounds for termination cited by the district court; (2) the district court

should have granted her additional time to work towards reunification;

(3) termination is not in the children’s best interests; and (4) the district court should

have placed the oldest child in a guardianship with the child’s maternal

grandmother. The oldest child also appeals the termination decision. She argues

the court should not have terminated her mother’s parental rights and should have

placed her in a guardianship with her maternal grandmother.

I.     Mother’s Appeal

       A.     Grounds for Termination

       The district court terminated the mother’s parental rights pursuant to Iowa

Code section 232.116(1)(e), (f), and (h) (2018). We may affirm if we find clear and

convincing evidence to support any of the grounds cited by the court. In re D.W.,

791 N.W.2d 703, 706 (Iowa 2010). We elect to focus on subsections (f) and (h),

which are identical but for the ages of the children and the time the children must

have been removed from the parent’s care.            Iowa Code § 232.116(1)(f), (h).

Subsection (f) requires proof the child is four or older. Id. § 232.116(1)(f)(1).

Subsection (h) requires proof the child is three or younger. Id. § 232.116(1)(h)(1).

The court terminated the mother’s parental rights to the oldest child under

subsection (f) and the remaining three children under subsection (h).               Both

subsections require proof the child cannot be returned to the parent’s custody.

Id. § 232.116(1)(f)(4), (h)(4).
                                          3


       We begin with the children’s ages. The oldest child clearly fell within the

age parameters of subsection (f) and the youngest two children clearly fell within

the parameters of subsection (h). The third child was three when the termination

petition was filed but turned four several days before the termination hearing. The

district court noted that the child was four but invoked section 232.116(1)(h) rather

than (f) to terminate the mother’s parental rights to him.

       Age is determined at the time of the termination hearing. See In re N.N.,

692 N.W.2d 51, 53 (Iowa Ct. App. 2004) (examining ages “at the time of the

termination hearing”). Under similar circumstances, we entered a limited remand

order to allow the State to plead the correct age provision. See In re M.T., 613

N.W.2d 690, 693 (Iowa Ct. App. 2000). Here, we need not employ the same

procedure because the State pled both age provisions and the district court found

the child was three but turned four. In effect, the court terminated the mother’s

parental rights to the third child under subsection (f) rather than (h). See id.

       We turn to the critical question—whether the children could be returned to

the mother’s custody. See Iowa Code § 232.116(1)(f)(4), (h)(4). Our de novo

review of the record reveals the following facts.

       The father of two of the mother’s seven children was charged with and

apparently convicted of domestically abusing the mother after his children saw him

punch the mother in her face several times. The district court issued a criminal no-

contact order, which required him to stay away from the mother until 2022. The

mother allowed the father to babysit five of her children while she was at work.

The father punched one of the children in the chest, resulting in the child’s death.
                                             4


Another child was diagnosed with multiple bruising. The father was arrested for

first-degree murder and child endangerment.

       Following the child’s death, the department of human services intervened

and developed a safety plan under which the mother was not to have any

unsupervised contact with her children. The children’s maternal grandmother was

designated the supervising contact. Almost immediately, the mother violated the

plan by taking two of the children out alone. The department sought and obtained

an order to have the four children in her care temporarily removed from her

custody. The mother agreed to the children’s continued removal and stipulated to

their adjudication as children in need of assistance. The children remained out of

the mother’s custody throughout the proceedings.

       Although the mother engaged in therapy and other services, the district

court found her progress insufficient and recommended the filing of a termination

petition. The State filed a petition seeking termination of the mother’s parental

rights and the parental rights of the fathers.1

       At the termination hearing, the department social worker managing the case

testified to the mother’s serial relationships with men who physically abused her or

who had a history of aggressive and violent behavior. Shortly after her child died

at the hands of one of the fathers, the mother began a relationship with a man who,

according to the social worker, “had domestic assault charges that included a no-

contact order against a woman and children” as well as “robbery-second charges.”

Although the social worker did not testify to the disposition of the charges and


1
  The fathers had little involvement with the children and did not appeal the termination of
their parental rights to the children.
                                           5


conceded there were no abuse findings of abuse perpetrated against this mother,

she stated, “[W]ho [the mother] associate[s] with has a direct impact on [the

mother’s] safety and the safety of her children. And [the mother] really struggled

with accepting that as a concern.”

       The mother also began another relationship with a man who “had a

domestic-assault charge.”     The relationship was short-lived but resulted in a

pregnancy and the birth of the mother’s seventh child just before the termination

hearing.

       On our de novo review, we conclude the mother was not in a position to

have the four children returned to her custody at the time of the termination

hearing. We affirm the statutory grounds for termination of her parental rights to

the older two children pursuant to Iowa Code section 232.116(1)(f) and the

younger two children pursuant to Iowa Code section 232.116(1)(h).

       B.     Additional Time

       The mother seeks additional time to correct the situation.         See id.

§§ 232.104(2)(b); 232.117(5). She notes that she was working with her therapist

“for approximately eleven months” and met with the oldest child’s therapist to

“better understand” that child’s trauma.

       The mother’s efforts to obtain help were commendable. But, despite sixteen

months of services, she did not internalize the safety concerns posed by her

relationships with violent men. As the department social worker testified, “I don’t

believe that she has gained the insight on how her choices impact her safety let

alone the safety of her children.”
                                          6


       The child’s therapist seconded the social worker’s opinion. While conceding

the child “loves her mom” and “want[s] to go home,” she expressed “concerns that

we have not made enough progress with [the mother] being able to address or

support [the child’s] needs, that [the child] would not be able to feel safe, that she

would be safe, or that she would be able to ask [the mother] to keep her safe.”

She further testified, “Due to [the child’s] significant trauma history, she would

benefit from a caregiver who is very self-aware and self-controlled about their own

reactions to trauma.” The mother had yet to reach that stage. Accordingly, we

conclude termination of her parental rights is the appropriate remedy.

       C.     Best Interests

       Termination also must serve the children’s best interests. In re L.T., 924

N.W.2d 521, 529 (Iowa 2019).           The children’s safety is the paramount

consideration.    Id.   As discussed, the children’s safety was significantly

compromised at the time of removal, and the mother did not make sufficient

progress to alleviate concerns about future harm by the men in her life.

       D.     Guardianship

       We are left with the question of whether the court should have granted the

maternal grandmother guardianship over the oldest child. We will address that

question in connection with the child’s appeal.

II.    Child’s Appeal – Best Interests/Guardianship

       The oldest child contends termination of the mother’s parental rights is not

in her best interests and the district court should have ordered a guardianship with

her maternal grandmother. She cites the fact that, in the sixteen months following
                                          7


her removal, she was placed in five different foster homes and the fifth home was

only a temporary placement.

       The multiple placements give us pause. But, despite the many moves, the

child made progress in dealing with her traumatic past.

       The child’s progress had much to do with the fact that the fifth foster parent

was herself a therapist. Had she served as a pre-adoptive placement, there is no

question the children’s best interests would have been served by remaining in her

care. See In re A.S., 906 N.W.2d 467, 477 (Iowa 2018) (“When a court terminates

parental rights, there is no statutory preference for placement with a relative.”).

       As it stood, the child was slated to move a sixth time. The question then

becomes why not have her move to the home of a relative who is willing to care

for her and had guardianship over the child’s cousin.

       While this option is facially appealing, it was not feasible because the child’s

mother was living with the maternal grandmother at the time of the termination

hearing. There was also a more fundamental issue—the reason behind the child’s

desire to return to her mother. The child informed a court appointed special

advocate that she wished to live with her mother because she wanted to keep her

mother safe. The district court characterized her statement as “a perplexing

turnabout of roles,” a statement with which we agree. At the end of the day, the

child’s concerns about her mother’s safety speak volumes about her own safety in

her mother’s care. Notwithstanding the child’s heartfelt desire to return to her

mother’s custody, we conclude termination is in the child’s best interests and a

guardianship with her maternal grandmother is not warranted.
                                       8


       We affirm the termination of the mother’s parental rights to four of her

children.

       AFFIRMED ON BOTH APPEALS.
