                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1474
                            Filed February 24, 2016


IN THE INTEREST OF K.Y.,
Minor Child,

J.Y., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld,

District Associate Judge.



       A mother appeals from the order terminating her parental rights.

AFFIRMED.




       Judith Jennings Hoover of Hoover Law Office, P.C., Cedar Rapids, for

appellant mother.

       Thomas J. Miller, Attorney General, and Janet L. Hoffman, Assistant

Attorney General, for appellee State.

       Julie Gunderson Trachta of Linn County Advocate, Inc., Cedar Rapids, for

minor child.




       Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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DANILSON, Chief Judge.

       A mother appeals the termination of her parental rights. 1 Upon our de

novo review, see In re A.M., 843 N.W.2d 100, 110 (Iowa 2014), we conclude

there is clear and convincing evidence to support the termination of the mother’s

parental rights, termination of rights is in the child’s best interests, and no

statutory mitigating factors preclude termination of rights. We therefore affirm.

       Under Iowa Code section 232.116(1)(h) (2015), the court may terminate

the rights of a parent to a child if: (1) the child is three years old or younger, (2)

the child has been adjudicated a CINA under section 232.96, (3) the child has

been out of the parent’s custody for at least six of the last twelve months or the

last six consecutive months, and (4) “[t]here 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 challenges the State’s showing

of the fourth element.

       K.Y. was born in December 2013,2 and she came to the attention of the

department of human services (DHS) after being hospitalized and diagnosed as

failure to thrive with no medical reason. Services were offered to the mother, but

the child was removed from the mother’s care on May 29, 2014. By stipulation of

the parties, the child was adjudicated as a child in need of assistance on June 4,

2014. Custody of the child is with DHS for purposes of foster family care. While




1
  The father consented to the termination of his parental rights and does not appeal.
2
  The mother has two older children. The mother relinquished her parental rights with
respect to the oldest of these children; the other child is in the custody of the biological
father.
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there have been attempts at semi-supervised and overnight visits with frequent

drop-ins, there have been no trial home placements.

      A petition to terminate the mother’s rights was filed on December 9, 2014.

Following a trial held on April 27 and May 11, 2015, the juvenile court found clear

and convincing evidence that the child could not be returned to the custody of the

mother at the present time. The court wrote:

              [The child] is a healthy and happy child who is currently
      thriving in foster family care. Due to her prior diagnosis of failure to
      thrive, with no medical reason, it is essential that she have a
      structured routine. [The child] has made significant progress while
      in foster family care and has been consistently gaining weight.
      Additionally, she has a heart condition (two holes in her heart) that
      needs to be watched, and in February 2015 she was diagnosed
      with scoliosis. [The mother] testified that she can “usually”
      recognize when [the child] is sick and maintains a refrigerator list to
      help her maintain a routine for [the child].
              ....
              Providers have been working with [the mother] since the
      onset of this case with budgeting. [The mother] has repeatedly
      failed to take any of their suggestions as to housing, budgeting and
      being financially responsible. She is consistently late in paying her
      rent. Her current employment is insufficient to meet her financial
      needs. [The mother] has taken out payday loans to try and acquire
      the things that she needs, only to owe much more later. Instead of
      planning ahead and working with the resources that are available to
      her, she makes inappropriate financial decisions.
              The biggest ongoing barrier to reunification efforts is [the
      mother]’s cognitive disabilities, given [the child]’s age. The court
      has no doubt the [the mother] wants to learn parenting skills so that
      she can meet her daughter’s needs. However, efforts to progress
      to the point where [the child] could be safely returned home have
      not been successful. [The mother] has not demonstrated sufficient
      decision-making ability to convince the department that [the child]
      would be safe 24/7 in her mother’s care. Multiple efforts have been
      made to walk [the mother] through a variety of scenarios that
      parents are required to address and react to on a daily basis
      without success.
              The court finds that the State has proven by clear and
      convincing evidence that the mother’s parental rights should be
      terminated pursuant to Iowa Code section 232.116(1)(h).
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       It is true that a parent’s “lower mental functioning alone is not sufficient

grounds for termination.” In re D.W., 791 N.W.2d 703, 708 (Iowa 2010). “But

where it affects the child’s well-being, it can be a relevant consideration.” A.M.,

843 N.W.2d at 111; see also In re P.L., 778 N.W.2d 33, 41 (Iowa 2010)

(emphasizing that the father’s “poor decision making makes him unable to

provide a safe and nurturing home for his child”). Adopting the juvenile court’s

findings as our own, we agree that termination is proper under section

232.116(1)(h).

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

child’s best interests.   With respect to a child’s “best interests,” Iowa Code

section 232.116(2) provides that we are to “give primary consideration to the

child’s safety,” “to the best placement for furthering the long-term nurturing and

growth,” and “to the physical, mental, and emotional condition and needs of the

child.” The court may consider the parent’s mental capacity or mental condition,

see Iowa Code § 232.116(2)(a), as well as the child’s “integration into a foster

family.” Id. § 232.116(2)(b).

       We acknowledge the mother has made some progress and attempts to

cooperate with services. We note the mother has ongoing mental health issues

that she does not address in a consistent manner. She also has diminished

cognitive abilities and does not retain pertinent parenting-skill information. As

found by the juvenile court, she “struggles to understand, interpret, and articulate

verbal information.” Again, we adopt the juvenile court’s findings:

              Permanency for children is critical to positive outcomes and
       success in life. Research indicates that a child must have a
       relationship with at least one adult who is nurturing, protective and
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          fosters trust and security over time to become a physiologically
          healthy adult. Stability of relationships is important because day-to-
          day consistency of care giving directly impacts a child’s ability to
          trust, love and cope.
                  All parties agree [the child] is in need of permanency today.
          She has medical needs that require a structured, consistent living
          environment. As a result, [the child] is more likely to get sick than
          other children her age and her mother testified that she can only,
          usually, recognize when she is sick. When the mother’s visitations
          were expanded, it resulted in increased illness for [the child] and
          concerns that she was not eating timely. There is no question that
          [the mother] loves her daughter, but she has been unable to
          demonstrate that she can meet all of her needs on a consistent,
          appropriate and regular basis.

We conclude it is in the child’s best interests that the mother’s parental rights be

terminated. The mother does not assert any mitigating factor found in section

232.116(3) is applicable. Consequently, we affirm the termination of the mother’s

rights.

          AFFIRMED.
