                    IN THE COURT OF APPEALS OF IOWA

                              No. 4-068 / 13-1958
                            Filed February 19, 2014


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

C.D., Mother,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Constance Cohen,

Associate Juvenile Judge.



      A mother appeals from the order terminating her parental rights.

AFFIRMED.




      Randall Jackson, Des Moines, for appellant mother.

      Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant

Attorney General, John P. Sarcone, County Attorney, and Stephanie Brown,

Assistant County Attorney, for appellee State.

      Michelle Saveraid of the Youth Law Center, Des Moines, for minor child.




      Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
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DANILSON, C.J.

          A mother appeals the termination of her parental rights to her child, A.R.1

The mother refuses to acknowledge the significance of her substance abuse

problem and has failed to follow through with services offered to her, even after

having her parental rights to her other children terminated. Although the mother

was not diagnosed with a mental illness, she has been emotionally distraught

and overwhelmed during the proceedings. Unfortunately, she refused therapy to

improve her emotional stability and remove this barrier to reunification until after

the first day of the termination hearing. The facts support termination, and we

affirm.

I. Background Facts and Proceedings.

          A.R. was born in March 2013, but the Iowa Department of Human

Services’ (DHS) involvement with the family began in May 2010. The mother’s

parental rights to her other two children were terminated in December 2012. In

the order terminating the mother’s parental rights to A.R., the court described the

mother’s history with the court, noting:

          The protective problems that led to the siblings’ removals and
          subsequent termination of parental rights involved unresolved
          substance issues, mental health related issues, and criminal
          conduct. Because these issues were unresolved, and due to
          circumstances of [A.R.’s] birth, . . . two days after [A.R.’s] birth, the
          Court signed an order of temporary removal, placing [A.R.] in the
          temporary legal custody of [his maternal grandparents]. These
          custodians had subsequently adopted [A.R.’s] two siblings.




1
    The parental rights of the father have also been terminated. He does not appeal.
                                          3


       A.R. was adjudicated a child in need of assistance (CINA) in May 2013,

pursuant to Iowa Code sections 232.2(6)(c)(2) and (n) (2013). In its findings, the

juvenile court stated:

               [The mother] admits having used THC early in her
       pregnancy (stopping use when learning of her pregnancy), and
       plans to attend inpatient treatment. The Court is not convinced that
       she has participated in random drug screens. Her appointments
       with her probation officer, during which she provides drug screens,
       are scheduled in advance. She has also missed drug screens,
       knowing that the Court considers missed screens to be dirty.
               ....
               [The mother] is not employed. She donates plasma, earning
       approximately $60 per week. She lost her phone. She believes
       she will have a job May 22, but there is no guarantee beyond her
       perception. She needs to find suitable housing. She refuses to go
       to a shelter. She still resides at [the father’s] mother’s home, but
       she and [the father] are no longer in a relationship.
               ....
               The Court terminated the parental rights of [A.R.’s] siblings
       in December 2012. The parents have made no known progress
       since that time in resolving the protective problems of unresolved
       addictions and supervision problem since the siblings’ cases
       closed. Both parents are completely dependent on others to meet
       their own needs and take no responsibility for their circumstances.
       [The mother], in particular, was eager to blame others for her
       failures.

During the course of proceedings, the mother did make some progress, but it

was short-lived. She provided DHS with some clean drug screens, but she also

missed several drug screens and was unsuccessfully discharged from substance

abuse treatment.      The mother was able to obtain employment briefly and

sporadically, but was unemployed again at the termination hearing in October

2013. Although she was found to be engaging and affectionate with A.R. at the

visits she attended, the mother cancelled several scheduled visits due to not

feeling well, lack of transportation, and her employment. The frequency of her

visits was curtailed due to her failure to attend consistently.
                                        4


      The State filed a petition to terminate the mother’s parental rights in

August 2013.       In October 2013, the juvenile court terminated the mother’s

parental rights pursuant to Iowa Code section 232.116(1)(d), (g) and (h). The

mother appeals.

II. Standard of Review.

      Our review of termination decisions is de novo. In re P.L., 778 N.W.2d 33,

40 (Iowa 2010).      We give weight to the juvenile court’s findings, especially

assessing witness credibility, although we are not bound by them. In re D.W.,

791 N.W.2d 703, 706 (Iowa 2010). An order terminating parental rights will be

upheld if there is clear and convincing evidence of grounds for termination under

section 232.116.     Id. Evidence is “clear and convincing” when there are no

serious or substantial doubts as to the correctness of the conclusions of law

drawn from the evidence. Id.

III. Discussion.

      Iowa Code chapter 232 termination of parental rights follows a three-step

analysis. P.L., 778 N.W.2d at 39. The court must first determine whether a

ground for termination under section 232.116(1) has been established. Id. If a

ground for termination has been established, the court must apply the best-

interest framework set out in section 232.116(2) to decide if the grounds for

termination should result in termination of parental rights.       Id.   Finally, if the

statutory best-interest framework supports termination of parental rights, the

court must consider if any of the statutory exceptions set out in section

232.116(3) weigh against the termination of parental rights. Id.
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       A. Grounds for Termination.

       When the juvenile court terminates parental rights on more than one

statutory ground, we may affirm the order on any ground we find supported by

the record. D.W., 791 N.W.2d at 707. Iowa Code section 232.116(1)(h) provides

that termination may be ordered when there is clear and convincing evidence the

child is three years of age or younger, has been adjudicated a child in need of

assistance, has been removed from the physical custody of the parent for at least

six of the last twelve months, and cannot be returned to the parent’s custody at

the time of the termination hearing.

       In this case, the mother claims there was not clear and convincing

evidence her parental rights should be terminated under section 232.116(1)(h).

She does not dispute that J.N. was three years of age or younger at the time of

the hearing and had been adjudicated a child in need of assistance. She does

dispute the statutory requirement the child be “removed from the physical

custody of the child’s parents for at least six of the last twelve months,” noting

that while A.R. had been removed for six months at the time of the termination

hearing, six months had not yet elapsed at the time the petition to terminate was

filed. She also argues there was not clear and convincing evidence A.R. could

not be returned to her care at the time of the hearing.

       We are not persuaded by her argument in regards to the timing of the

petition to terminate. As we have stated before, “Iowa law does not require all

the grounds for termination to exist at the time the petition is filed.” In re D.M.J.,

780 N.W.2d 243, 245 (Iowa Ct. App. 2010); see also In re J.L.H., 326 N.W.2d

284, 286 (Iowa 1982). “The law simply requires the court to ‘find[ ] that all of the
                                         6

following have occurred’ before issuing its termination order.”        D.M.J., 780

N.W.2d at 245 (citing Iowa Code § 232.116(1)(h)).

      The mother argues there is not clear and convincing evidence A.R. could

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

had not provided any positive drug tests and her mental health evaluation did not

recommend treatment. Although the mother has not provided any positive drug

tests, she has failed to take numerous scheduled tests, even knowing the

juvenile court considered those “dirty.” Since admitting she smoked marijuana

during her pregnancy with A.R., she has been unsuccessfully discharged from

substance abuse treatment and refuses to acknowledge any type of addiction or

need for help.

      Similarly, although the mother contends she does not require any mental

health services, she was ordered to attend therapy because of her agitated

emotional state throughout the proceedings. The juvenile court noted that the

mother “remains emotionally distressed,” “is clearly overwhelmed,” “continues to

struggle to control her emotions,” and would become distressed whenever the

father’s name would be mentioned.2 Although she completed a mental health

evaluation, she did not comply with the court order to attend therapy until after

the first day of the termination hearing. Clearly, there remains instability in the

mother’s emotional state affecting her judgment and reunification. The mother

has had the same issues since DHS first became involved with the family in May



2
  The juvenile court concluded the mother was codependent with the father and also
noted there was “credible evidence that domestic violence has been an issue” between
the mother and father.
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2010 and has failed to take advantage of the services offered to her to address

them.

        There is clear and convincing evidence the grounds for termination,

pursuant to section 232.116(1)(h), have been met.

        B. Best Interests of the Child.

        Even if a statutory ground for termination is met, a decision to terminate

must still be in the best interests of a child after a review of section 232.116(2).

P.L., 778 N.W.2d at 37. In determining the best interests of the 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 conditions and needs of the child.” See Iowa Code § 232.116(2).

        Throughout the course of the proceedings, the mother has been unable to

maintain employment or secure a home. She has missed numerous visits and

has been unable to provide stability for A.R. In contrast, A.R.’s grandparents

have cared for him since his birth. They have adopted his siblings since the

termination of the mother’s parental rights to them and have expressed a

willingness to adopt A.R. as well.

        We agree with the juvenile court that it is in the child’s best interests to

terminate the mother’s parental rights.

        C. Exceptions or Factors against Termination.

        Finally, we consider whether any exception or factor in section 232.116(3)

weighs against termination of parental rights.     P.L., 778 N.W.2d at 39.      The

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

mandatory. See In re D.S., 816 N.W.2d 458, 474–75 (Iowa Ct. App. 2011). The
                                        8


court has discretion, based on the unique circumstances of each case and the

best interests of the child, whether to apply the facts in the section to save the

parent-child relationship. D.S., 816 N.W.2d at 475.

      The mother did not argue any of the exceptions or factors against

termination apply in this case.    Upon our de novo review, we conclude no

exception or factor in section 232.116(3) applies to make termination

unnecessary.

IV. Conclusion.

      There is clear and convincing evidence that grounds for termination exist

under section 232.116(1)(h), termination of the mother’s parental rights is in the

child’s best interests pursuant to section 232.116(2), and no consequential factor

weighing against termination in section 232.116(3) requires a different

conclusion. Accordingly, we affirm termination of the mother’s parental rights.

      AFFIRMED.
