                      IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0884
                              Filed September 17, 2014


IN THE INTEREST OF M.H.,
Minor Child,

D.B., Mother,
Appellant.
________________________________________________________________


         Appeal from the Iowa District Court for Cerro Gordo County, Annette L.

Boehlje, District Associate Judge.



         A mother appeals the juvenile court’s termination of her parental rights

with respect to her son. AFFIRMED.



         Crystal L. Ely of Young Law Office, Mason City, for appellant mother.

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

Attorney General, Carlyle D. Dalen, County Attorney, and Andrew Olson,

Assistant County Attorney, for appellee State.

         David Grooters, Mason City, attorney and guardian ad litem for minor

child.



         Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
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POTTERFIELD, P.J.

       A mother appeals the juvenile court’s termination of her parental rights

with respect to her son. We affirm.

       I. Factual and Procedural Background

       The Iowa Department of Human Services (DHS) first began work with the

mother and her son in 2009. At that time, the mother’s paramour provided most

of the child’s care. Since then, the mother has left that relationship and has been

in and out of relationships with other men.      Every time she took on a new

paramour, she told the child the paramour was his father, creating confusion and

frustration in the child.1

       In 2012, DHS opened another case because of the child’s exposure to

domestic violence. The DHS supervisor at that time realized there had not been

positive progress since 2009. The child appeared to provide most of his own

care. The mother made little effort to oversee the child, the home was unkempt

and emitted a persistent odor, and both the mother and child lacked common

hygienic care. The child exhibited serious misbehaviors and needed constant

attention. He acted out to receive that attention from the mother, but the mother

often did not engage with the child.     The mother appeared to resist making

changes to improve her parenting abilities.

       The mother decided to allow her newest paramour to live with her and the

child. The man was on probation for sexual offenses against a minor. She

resisted DHS’s direction that she not allow the man to have access to the child.


1
   Between late 2012 and the juvenile court’s order in May 2014, the mother had
introduced the child to five new “fathers.”
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After the paramour moved in with the mother and child, the State removed the

child from the mother’s custody.

        DHS attempted to work with the mother to improve her parenting skills

throughout the next year. During that year, the mother’s visits with the child were

not productive. She fell asleep during visitations, ignored the child to play with

her phone, and generally did not engage with the child. When the child acted

out, the mother would become overwhelmed and angry and leave the room.

        The mother was largely uncooperative and aggressive with DHS, leaving

“erratic and angry messages, yelling at providers, yelling at [DHS] workers,

swearing at workers, [and] making threats about what she will do when she sees

them.” The mother has multiple medications to manage her anger and mental

well-being, but she adheres to the medication regimen irregularly and at her

whim.

        The DHS worker found the mother was unable to internalize or effectuate

any of the parenting skills she had been taught. According to a psychological

evaluation report, the mother’s intellectual abilities on most metrics indicated mild

mental retardation and a second grade reading level. The mother was formally

diagnosed with a Learning Disorder NOS, Borderline Intellectual Functioning,

and Borderline Personality Traits.     The psychologist wrote in that report, “At

present, [the mother] does not appear to have the requisite abilities to adequately

manage her son’s difficulties, nor did she appear as motivated to make any

substantial changes.”
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         The State petitioned to terminate the mother’s parental rights.               The

juvenile court terminated in its May 13, 2014 order pursuant to Iowa Code section

232.116(1)(f) (2013).2 The mother appeals.

         II. Standard of Review

         “We review proceedings to terminate parental rights de novo.” In re H.S.,

805 N.W.2d 737, 745 (Iowa 2011).

         III. Discussion

         The mother raises three issues on appeal.

         A. Lack of Clear and Convincing Evidence. First, the mother asserts there

is not clear and convincing evidence to satisfy the requirements of Iowa Code

section 232.116(1)(f). She concedes the first three of the four requirements are

met, but she argues the fourth—“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”—is not satisfied.

         A child cannot be returned to the custody of his parents under section

232.102 when doing so would expose the child to “some harm which would


2
    The court may order the termination of parental rights when:
         f. The court finds that all of the following have occurred:
                 (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.
Iowa Code § 232.116(1) (2013).
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justify the adjudication of the child as a child in need of assistance.” Iowa Code

§ 232.102(5)(a)(2); see In re A.M.S., 419 N.W.2d 723, 724–25 (Iowa 1988). Two

such harms are: “harmful effects as a result of . . . the failure of the child’s parent

. . . to exercise a reasonable degree of care in supervising the child,” Iowa Code

section 232.2(6)(c)(2); and when a “parent’s . . . mental capacity or condition

. . . results in the child not receiving adequate care,” Iowa Code section

232.2(6)(n). “The threat of probable harm will justify termination.” In re M.M.,

483 N.W. 812, 814 (Iowa 1992).

       The juvenile court found the child could not be returned to the mother’s

custody because doing so could subject the child to both of the aforementioned

forms of adjudicatory harm. The mother claims there is not clear and convincing

evidence of imminent likelihood of harm resulting from a failure of reasonable

care. We find, however, there is clear and convincing evidence of a threat of

probable harm.     The mother’s obstinacy in refusing to utilize the parenting

concepts she has been taught, her failure to adhere to her medication regimen,

and her tendency to associate with others who present a danger to the child are

likely to lead to further situations like those that qualified the child as a child in

need of assistance in the first place.

       The mother also claims DHS failed to follow the recommendations of the

psychological exam results, but fails to assert the significance of such failures

relative to the issue of clear and convincing evidence. We affirm there is clear

and convincing evidence that the child cannot be returned to the mother’s

custody under the threat of probable adjudicatory harm.
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       B. Best Interests of the Child. “The paramount concern in termination

proceedings is the best interests of the child.” In re D.S., 806 N.W.2d 458, 465

(Iowa Ct. App. 2011) (citing In re P.L., 778 N.W.2d 33, 39 (Iowa 2010)). The

mother claims the juvenile court’s order is not demonstrably in the best interests

of the child. She asserts that because DHS did not use reasonable efforts to

reunify the mother and child, she was unable to demonstrate that termination

was not in the child’s best interests. We agree with the juvenile court—DHS

exerted significant effort to help the mother improve her parenting and allow her

to demonstrate that retention of custody was in the child’s best interest. She

failed to do so, and we therefore affirm on this issue.

       C. Factors Weighing against Termination.           The mother claims there is

clear and convincing evidence the factors found in Iowa Code section

232.116(3)(d)—the necessity of placing the child “in an institution for care and

treatment” and that “the continuation of the parent-child relationship is not

preventing a permanent family placement for the child”—apply, rendering

termination improper.3      We note (and the mother concedes) the statutory

exceptions are permissive, not mandatory. D.S., 806 N.W.2d at 474–75.

       The child has been moved to a psychiatric medical institution for children

because of the failure of his foster care placement.          It is true the mother’s

relationship with him does not directly interfere with the placement process.


3
  The State asserts the mother did not make this claim below or move to enlarge or
amend the termination order for clarification or reconsideration of these factors. It
alleges no error has been preserved for our review regarding this issue. See In re A.B.,
815 N.W.2d 764, 773 (Iowa 2012). The record shows the mother objected to termination
as a permanency goal before the juvenile court, but the court failed to describe or rule
upon the precise grounds upon which she objected. We cannot say with certainty that
the mother did not raise this issue below, and we reach the merits of the claim.
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However, these facts do not outweigh the fact that the mother’s inconsistent

exercise of her visitation rights has demonstrably disappointed and frustrated the

child. Even though the mother’s relationship with the child will not prevent the

child’s future residential placement, termination remains in the child’s best

interest. We agree with the juvenile court that application of the statutory factors

does not warrant the denial of the State’s termination petition.

       IV. Conclusion

       The juvenile court relied on clear and convincing evidence to find

termination proper under Iowa Code section 232.116(1)(f).             The evidence

demonstrates that the best interests of the child will be served by terminating the

mother’s parental rights for his future placement in a positive familial setting. The

mother’s claim that statutory factors weigh against termination does not

overcome our finding that termination is in the best interests of the child.

       AFFIRMED.
