IN THE COURT OF APPEALS OF IOWA

No. 15-0720

Filed July 9, 2015

IN THE INTEREST OF L.W. and D.T.,

Minor Children,

C.W., Father,

Appellant,

J.B., Mother,

Appellant.

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

Boehlje, District Associate Judge.

A mother and father appeal separately from the order terminating their 

parental rights. AFFIRMED ON BOTH APPEALS.

Charles H. Biebesheimer of Stillman Law Firm, Clear Lake, for appellant 

father.

Michael J. Moeller of Sorensen Law Office, Clear Lake, for appellant 

mother.

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

Attorney General, Carlyle D. Dalen, County Attorney, and Nichole M. Benes, 

Assistant County Attorney, for appellee State.

Crystal L. Ely of Young Law Office, Mason City, for minor children.

Considered Vaitheswaran, P.J., Doyle, J., and Mahan, S.J.*

Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MAHAN, S.J.

A mother and father appeal separately from the order terminating their 

parental rights. The mother has failed to show (1) there was not sufficient 

evidence to support termination of her parental rights, (2) termination was not in 

the children’s best interests; or (3) the juvenile court should have exercised its 

discretion to decide not to terminate her parental rights. For the father, no 

exceptions militate against termination of his parental rights. We affirm the 

decision of the juvenile court.

I. Background Facts & Proceedings.

Jennifer is the mother of D.T., born in 2000, and L.W., born in 2006. 

Christopher is the father of L.W.1 Concerns arose about domestic violence in the 

parents’ relationship and physical abuse of the children. L.W. told social workers 

Christopher “hurt with his fists.” The State filed petitions alleging the children 

were in need of assistance (CINA). After a hearing, the juvenile court entered an 

order on December 13, 2013, adjudicating the children as CINA pursuant to Iowa 

Code section 232.2(6)(c)(2) (2013), based on a finding that continuation in the 

home would “expose both children to physical violence on them and their 

mother.” D.T. was placed with his paternal grandmother, Christine. L.W. was 

placed with his maternal grandmother, Donna.

Jennifer and Christopher were ordered to participate in family-centered 

services, individual counseling, and random drug testing. They were also each 

ordered to complete a mental health evaluation. They participated in services,

but made little progress because they prioritized their relationship with each other 

 

1 The father of D.T. is deceased.
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rather than focusing on the needs of the children. They continued to deny or 

minimize the level of violence in the home. They lived together until October 

2014, when Christopher spent thirty days in jail for failure to pay child support. 

Jennifer moved in with her mother, Donna, where L.W. also resided. After 

Christopher was released, the parents continued to spend time together, 

although they no longer lived together, and Jennifer supported Christopher 

financially.

Jennifer and Christopher were granted visitation at the discretion of the 

Iowa Department of Human Services. Jennifer was very inconsistent in her 

visitation with D.T. Since moving in with Donna in October 2014, Jennifer has 

seen L.W. every day. Donna, however, provides the parenting for L.W., including 

getting him up for school and making his breakfast. Jennifer saw L.W. for only a 

short period of time after he came home from school, before she left for work. 

Christopher moved to Waterloo in November 2014; he had had no face-to-face 

visitation with L.W. since his move, but continued to have telephone contact.

On December 4, 2014, the State filed petitions seeking termination of 

Jennifer’s parental rights to D.T. and L.W. and Christopher’s parental rights to 

L.W. A termination hearing was held on March 27, 2015. The juvenile court 

terminated the parents’ rights under section 232.116(1)(f). The court found 

Christopher was unwilling to admit or address the issue of domestic violence and 

Jennifer was unable or unwilling to protect the children from Christopher. The 

court concluded termination was in the children’s best interests. The court 

considered the exceptions in section 232.116(3), but determined “no exceptions 
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militate against termination.” Jennifer and Christopher have separately appealed 

the termination order.

II. Standard of Review.

The scope of review in termination cases is de novo. In re D.W., 791 

N.W.2d 703, 706 (Iowa 2010). Clear and convincing evidence is needed to 

establish the grounds for termination. In re J.E., 723 N.W.2d 793, 798 (Iowa 

2006). Where there is clear and convincing evidence, there is no serious or 

substantial doubt about the correctness of the conclusion drawn from the 

evidence. In re D.D., 653 N.W.2d 359, 361 (Iowa 2002). The paramount 

concern in termination proceedings is the best interest of the child. In re L.L., 

459 N.W.2d 489, 493 (Iowa 1990).

III. Jennifer.

A. Jennifer contends there is not sufficient evidence in the record to 

support termination of her parental rights. She first asserts L.W. was not 

removed from her physical custody for at least twelve months. The children were 

removed from her care on December 13, 2013. While Jennifer moved in with 

Donna in October 2014, where L.W. was also living, L.W. was never returned to 

Jennifer’s care. L.W. remained in the physical care of his maternal grandmother, 

Donna, throughout the juvenile court proceedings.

Jennifer also asserts the State failed to show, by clear and convincing 

evidence, that the children could not be safely returned to her care. She states 

she has now separated from Christopher and there would be no harm to the 

children if they were placed in her care. The juvenile court found the parents 

were not credible in their claims they were no longer together. The court found, 
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“It is clear that Chris will always be Jennifer’s priority, not the boys or even her 

own safety. She is emotionally dependent upon Chris.” The evidence shows 

neither Jennifer nor Christopher has addressed the issue of domestic violence in 

their relationship. We agree with the juvenile court’s conclusion that there is 

clear and convincing evidence Jennifer would be unable to keep the children 

safe. The court properly determined Jennifer’s parental rights should be 

terminated under section 232.116(1)(f).

B. Jennifer claims termination of her parental rights is not in the best 

interests of the children. Once the juvenile court has determined one of the 

grounds for termination under section 232.116(1) has been proved, the court 

then considers whether to terminate, looking at the factors in section 232.116(2). 

In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). Under section 232.116(2), we 

consider a child’s best interests, giving “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.”

We agree with the juvenile court’s conclusion that termination of Jennifer’s 

parental rights is in the best interests of the children. Jennifer’s first priority is her 

relationship with Christopher. Although she participated in counseling, she 

remained unable to meet the needs or to attend to the safety of the children. “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.
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C. Jennifer asserts the juvenile court should have applied the exceptions 

in section 232.116(3)(a), “A relative has legal custody of the child,” and (c), 

“There is clear and convincing evidence that the termination would be detrimental 

to the child at the time due to the closeness of the parent-child relationship.” If 

an exception under section 232.116(3) applies the court, in its discretion, may 

decide not to terminate. In re A.M., 843 N.W.2d 100, 113 (Iowa 2014). The 

application of the factors in section 232.116(3) is permissive, not mandatory. Id. 

In exercising its discretion, the court should consider the unique circumstances of 

the case and the best interests of the child. Id. We concur in the court’s 

conclusion that the exceptions do not militate against termination in this case 

based on the children’s need for safety and stability.

We affirm the juvenile court’s termination of Jennifer’s parental rights to 

D.T. and L.W.

IV. Christopher.

Christopher raises only one issue on appeal. He asserts the court should 

have decided not to terminate his parental rights to L.W. based upon the 

exceptions found in section 232.116(3)(a) and (c). We have already considered 

these exceptions as they applied to Jennifer. We likewise conclude the juvenile 

court did not abuse its discretion in its determination that the exceptions in 

section 232.116(3) did not militate against termination of Christopher’s parental 

rights. The court stated:

Although [L.W.] is bonded to his parents, neither one is 

appropriate to care for him at this time. Due to the dynamics of 

domestic violence, which neither parent has resolved or even 

admitted, the child would not be protected in his mother’s care from 
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his father, nor would his father be appropriate to care for him due to 

the father’s aggression.

We affirm the juvenile court’s termination of Christopher’s parental rights 

to L.W.

AFFIRMED ON BOTH APPEALS.