                     IN THE COURT OF APPEALS OF IOWA

                                    No. 19-0628
                                Filed July 24, 2019


IN THE INTEREST OF I.D.,
Minor Child,

M.K., Mother,
      Appellant.
________________________________________________________________


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

Associate Judge.



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

AFFIRMED.



       Magdalena Reese of Cooper, Goedicke, Reimer & Reese, P.C., West Des

Moines, for appellant mother.

       Thomas J. Miller, Attorney General, and Anna T. Stoeffler, Assistant

Attorney General, for appellee State.

       John Jellineck of State Public Defender’s Office, Des Moines, guardian ad

litem for minor child.



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


DOYLE, Judge.

       This appeal concerns the termination of a mother’s parental rights to her

child, I.D., who was born in 2018. This is not the first time the juvenile court has

terminated the mother’s parental rights to a child. Just six months before I.D. was

born, the juvenile court terminated the mother’s parental rights to two older children

based on concerns arising from her substance abuse, her mental health, and a

relationship marred by domestic violence.

       In spite of the termination of her parental rights to those children, the mother

continued to struggle with the issues that led to termination. She used drugs during

her pregnancy with I.D. and tested positive for methamphetamine one month

before I.D. was born. One week after his birth, the juvenile court removed I.D. from

the mother’s care and later adjudicated him to be a child in need of assistance

(CINA).

       In the eight months following the CINA adjudication, the mother kept using

drugs, was arrested on criminal charges, and appeared at visitation with

unexplained injuries. At the time of the termination hearing, she remained on

probation, unemployed, and in need of substance-abuse treatment. The State

petitioned to terminate the mother’s parental rights, which the juvenile court

granted following a hearing.1

       On appeal, the mother challenges the juvenile court’s findings in applying

the analytical framework for termination. See In re P.L., 778 N.W.2d 33, 37-38

(discussing the three steps involved in this analytical framework).            She also


1
  The father’s paternal rights were also terminated upon his consent. He is not a party to
this appeal.
                                         3


requests additional time to have I.D. returned to her care. We review her claims

de novo. See In re A.S., 906 N.W.2d 467, 472 (Iowa 2018).

      I. Statutory Grounds for Termination.

      The juvenile court terminated the mother’s parental rights under Iowa Code

section 232.116(1)(g) and (h) (2019).        Although the juvenile court terminated

parental rights on more than one ground, we need only find grounds to terminate

under one of the sections cited by the juvenile court to affirm. See In re S.R., 600

N.W.2d 63, 64 (Iowa Ct. App. 1999). To terminate under Iowa Code section

232.116(1)(h), the State must prove the following by clear and convincing

evidence:

              (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 does not challenge the sufficiency of the proof on the first three

requirements for termination under section 232.116(1)(h). She insinuates the

State failed to prove I.D. could not be returned to her care at the time of the

termination hearing. See Iowa Code § 232.116(1)(h)(4); In re D.W., 791 N.W.2d

703, 707 (Iowa 2010) (interpreting the term “at the present time” to mean to mean

“at the time of the termination hearing”). “[A] child cannot be returned to the

custody of the child’s parent under section 232.102 if by doing so the child would

be exposed to any harm amounting to a new child in need of assistance
                                          4

adjudication.” In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App. 2016) (alteration in

original) (citation omitted).

       The mother acknowledged at the termination hearing that she was not there

“saying that [she was] ready to take [I.D.] to live with [her] right now.” Given the

circumstances, we believe this is sufficient evidence for the establishment of

element four of section 232.116(1)(h). See In re Z.G., No. 16-2187, 2017 WL

1086227, at *4 n.5 (Iowa Ct. App. Mar. 22, 2017) (collecting cases in which

termination of parental rights was affirmed because a parent admitted the child or

children could not be returned to the parent’s care at the time of the termination

hearing). In any event, clear and convincing evidence shows that returning I.D. to

the mother’s care at the time of the termination hearing would have exposed him

to the type of harm that would lead to a CINA adjudication. The issues that led to

the May 2018 CINA adjudication continued throughout the proceedings. She

testified she used marijuana and methamphetamine just a week before the

termination hearing. Although the mother testified she was willing to do the work

necessary to address her issues by beginning inpatient treatment the week after

the termination hearing, it is clear she was in no better position to care for I.D. at

the time of the termination hearing than she had been at the time of the CINA

adjudication. The State proved the grounds for terminating the mother’s parental

rights under section 232.116(1)(h).

       II. Best Interests.

       The mother next contends the State failed to prove that termination is in

I.D.’s best interests. See D.W., 791 N.W.2d at 706-07 (“If a ground for termination

is established, the court must, secondly, apply the best-interest framework set out
                                          5


in section 232.116(2) to decide if the grounds for termination should result in a

termination of parental rights.”). In making the “best interests” determination, our

primary considerations are “the child’s safety,” “the best placement for furthering

the long-term nurturing and growth of the child,” and “the physical, mental, and

emotional condition and needs of the child.” P.L., 778 N.W.2d at 37 (quoting Iowa

Code § 232.116(2)). The “defining elements in a child’s best interest” are the

child’s safety and “need for a permanent home.” In re H.S., 805 N.W.2d 737, 748

(Iowa 2011) (citation omitted).

       The record shows I.D. is young and has been out of the mother’s care for

all but the first week of his life. Almost ten months passed between I.D.’s birth and

the termination hearing. In spite of the services offered to the mother during this

period, on top of the services offered to her during proceedings involving her other

children, the mother had yet to begin the long road to recovery. Although the law

requires a “full measure of patience with troubled parents who attempt to remedy

a lack of parenting skills,” this patience has been built into the statutory scheme of

chapter 232. In re C.B., 611 N.W.2d 489, 494 (Iowa 2000). The statutory period

for termination having passed, we find termination is in I.D.’s best interests. See

In re A.C., 415 N.W.2d 609, 614 (Iowa 1987) (“It is unnecessary to take from the

children’s future any more than is demanded by statute. Stated otherwise, plans

which extend the [statutory] period during which parents attempt to become

adequate in parenting skills should be viewed with a sense of urgency.”); see also

In re R.J., 436 N.W.2d 630, 636 (Iowa 1989) (noting that once the time for

reunification set by the legislature has expired, “patience on behalf of the parent

can quickly translate into intolerable hardship for the children”).
                                           6


       III. Permissive Factors.

        The mother also asks the court to decline to terminate her parental rights

because one of the permissive factors set forth in Iowa Code section 232.116(3)

applies. She asks us to avoid termination of her parental rights because I.D. is in

the care of his maternal grandmother, who is willing to act as his guardian. See

Iowa Code § 232.116(3)(a) (providing that the court “need not terminate” the

parent-child relationship if a relative has legal custody of the child). The mother

also argues that terminating her parental rights “would be detrimental to the

child . . . due to the closeness of the parent-child relationship.” Id. § 232.116(3)(c).

       The decision to apply a statutory factor to avoid terminating parental rights

is permissive, not mandatory. See A.S., 906 N.W.2d at 475. Once the State has

proved the ground for termination, the parent resisting termination bears the

burden of proving a permissive factor applies. See id. at 476. In determining

whether to apply a permissive factor, we use our discretion based on the unique

circumstances of each case. See id. at 475. As always, our first consideration is

the child’s best interests. See id.

       We decline to apply the permissive factor provided in section 232.116(3)(a)

based on I.D.’s placement in his maternal grandmother’s care.                Even if a

guardianship were ordered, it would not provide the permanency afforded by

adoption and is not a legally preferable alternative to termination. See id. at 477-

78.   As our supreme court has observed, “An appropriate determination to

terminate a parent-child relationship is not to be countermanded by the ability and

willingness of a family relative to take the child.” Id. at 475 (citation omitted).
                                          7


       We also decline to apply the permissive factor provided in section

232.116(3)(c). I.D. was one-week old when the juvenile court removed him from

the mother’s care.     I.D. remained out of the mother’s care throughout the

proceedings. The mother has shown no significant bond with I.D. Nor has she

shown that terminating her parental rights would harm I.D. based on the closeness

of their bond.

       IV. Extension of Time.

       Finally, the mother seeks additional time to allow the return of I.D. to her

care. See Iowa Code § 232.104(2)(b) (allowing the court to continue placement of

the child for six more months if it determines “that 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”). She claims there is a “reasonable probability” that I.D. could be returned

to her care within that time. We disagree. At the time of the termination hearing,

the mother had not yet entered treatment. The record suggests her recovery will

not be complete in six months. Because the need for I.D.’s removal will continue

to exist following the requested extension, we deny her request.

       Children are not equipped with pause buttons, and delaying their

permanency in favor of the parents goes against the children’s best interests. See

In re A.M., 843 N.W.2d 100, 112 (Iowa 2014) (noting children must not be deprived

permanency on the hope that someday the parent will be able to provide a stable

home); A.C., 415 N.W.2d at 614.

       AFFIRMED.
