                    IN THE COURT OF APPEALS OF IOWA

                                    No. 19-1368
                              Filed October 23, 2019


IN THE INTEREST OF F.P.,
Minor Child,

N.P., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Colin J. Witt, District

Associate Judge.



       A mother appeals a juvenile court order terminating her parental rights.

AFFIRMED.



       Marshall W. Orsini of Law Offices of Marshall W. Orsini, PLLC, Des Moines,

for appellant mother.

       Thomas J. Miller, Attorney General, and Anna T. Stoeffler (until withdrawal)

and Mary A. Triick, Assistant Attorneys General, for appellee State.

       Nicole Garbis Nolan of Youth Law Center, Des Moines, guardian ad litem

for minor child.



       Considered by Potterfield, P.J., Greer, J., and Vogel, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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VOGEL, Senior Judge.

       A mother appeals a juvenile court order terminating her parental rights to

her daughter. We find there is sufficient evidence in the record that the child cannot

be returned to the mother, termination is in the child’s best interests to give the

child stability, and custody of the child with her father does not militate against

termination. We affirm the decision of the juvenile court.

       I.     Background Facts & Proceedings

       N.P., mother, and J.G., father, are the parents of F.P., born in 2006. The

mother has a long history of drug use, mental-health problems, and criminal

behavior.   The family became involved with the Iowa Department of Human

Services (DHS) in July 2017 because the mother was using methamphetamine

and stabbed a man in her apartment. The child was moved to the father’s care in

August. In January 2018, in separate civil proceedings, the father was granted

sole legal custody and the mother was granted supervised visitation. In February

2018, the mother was arrested for domestic abuse assault against her boyfriend,

B.F., who reported the mother was “off her meds and has violent tendencies.”

Shortly before the termination hearing, the mother married B.F., despite knowing

he was a sex offender.

       On June 11, 2018, the child was adjudicated to be in need of assistance

(CINA), pursuant to Iowa Code section 232.2(6)(c)(2) and (n) (2018). The mother

has been diagnosed with schizoaffective disorder, generalized anxiety disorder,

cannabis abuse, and other stimulant abuse.          The mother has been treated

periodically over the years for these issues with little success.
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       In a review order, filed on January 23, 2019, the juvenile court determined

the mother would have not visitation “until such time as she is engaged in mental

health therapy, she has completed a full psychological evaluation, she has

provided a clean drug screen, and she has met with [the child’s] therapist without

[the child] present.” In the early morning of January 29, 2019, after the father had

gone to work, the mother banged on the windows and doors of the father’s home,

wanting to talk to the child. The police were called, and the child’s grandmother

was able to transport her to school. Later in the day, the mother also caused a

scene at the child’s school. She appeared to be under the influence of a mood-

altering substance and was eventually escorted off the premises by the police.

Both events caused more trauma to the child, resulting in the court entering an

order prohibiting the mother from having contact with the child.

       On May 2, the State filed a petition seeking to terminate the mother’s

parental rights.     The juvenile court terminated her rights under section

232.116(1)(f) (2019).1 The court found there was clear and convincing evidence

to show the child “cannot be safe physically and emotionally in her Mother’s

custody. Even part-time custody as part of a divorce decree.” The court found


1
  Under section 232.116(1), the court may terminate parental rights if it finds all of the
following:
                (1) The child is four years of age or older.
                (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 twelve of the last eighteen months, or for the last
        twelve consecutive months and any trial period at home has been less than
        thirty days.
                (4) There is clear and convincing evidence that at the present time
        the child cannot be returned to the custody of the child’s parents as
        provided in section 232.102.
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termination was in the child’s best interests. The court stated, the mother “just

hasn’t been able to make the changes or rise to the level of being a safe and

minimally adequate parent for [the child] who can interact with her in a healthy and

safe and consistent manner.” The court also found none of the exceptions in

section 232.116(3) applied. The mother now appeals.

       II.    Standard of Review

       Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d

764, 773 (Iowa 2012). “‘Clear and convincing evidence’ means there are no

serious or substantial doubts as to the correctness [of] conclusions of law drawn

from the evidence.” In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citation omitted).

Our primary concern is the best interests of the child. In re J.S., 846 N.W.2d 36,

40 (Iowa 2014).

       III.   Sufficiency of the Evidence

       The mother claims there is not sufficient evidence in the record to support

termination of her parental rights. She does not dispute the first three elements of

section 232.116(1)(f), but she claims the State did not adequately prove the fourth

element, that the child could not be returned to her care. She points out she had

reengaged in mental-health counseling since the January 2019 no-contact order

was entered. The mother states she now has housing, is living alone, and is

appropriate for at least part-time care of the child.

       Notwithstanding these assertions, we find there is clear and convincing

evidence in the record to show the child could not be safely returned to the

mother’s care. The child’s therapist reported in late December 2018 that the child

was extremely confused and upset when visiting with the mother and requested
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only supervised visits. In order to keep the child safe from the mother’s erratic

behavior, a no-contact order was entered in January 2019. Having shown no

recent progress in her ability to safely provide for the child, we cannot agree with

the mother’s request for part-time care of the child. We conclude the juvenile court

properly terminated the mother’s rights under section 232.116(1)(f).

       IV.    Best Interests

       The mother next asserts termination of her parental rights is not in the

child’s best interests. In considering the best interests of a child, 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, mental, and emotional

condition and needs of the child.” In re P.L., 778 N.W.2d 33, 40 (Iowa 2010)

(quoting Iowa Code § 232.116(2)). “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.” Id. at 41.

       We agree with the juvenile court that termination of the mother’s parental

rights is in the child’s best interests because the mother could not provide for the

child’s physical, mental, and emotional needs. The mother continues to have

significant volatility and instability. The child, who was thirteen years old at the

time of the termination hearing, did not object to having her mother’s rights

terminated. The child sought certainty in knowing where she was going to live and

who was going to be taking care of her, and she found stability in the father’s care.

The mother also asserts termination of her rights would be detrimental to the child

because of the lack of child support she would be required to provide. However,
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the mother admitted at the termination hearing that she had not provided any

financial support since August 2017, because she had not “been asked to do

anything.”

       V.     Exceptions

       Finally, the mother claims the court should have decided not to terminate

her parental rights because the child was in the legal custody of the father. See

Iowa Code § 232.116(3)(a). The factors in section 232.116(3) are permissive, not

mandatory. In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App. 2011). In deciding

whether to apply an exception to termination, we consider “the unique

circumstances of each case and the best interests of the child.” In re A.M., 843

N.W.2d 100, 113 (Iowa 2014) (citation omitted).

       We concur in the juvenile court’s conclusion that an exception to termination

under section 232.116(3) should not be applied in this case. At the termination

hearing, the mother agreed the conflict between her and the father about the

physical care of the child had been going on too long. It is in the child’s best

interests to give the child the stability of knowing she will remain in her father’s

care, without the uncertainty of whether she could be forced back into the

unsettling trauma of living with or visiting her mother.

       We affirm the decision of the juvenile court.

       AFFIRMED.
