IN THE COURT OF APPEALS OF IOWA

No. 18-1017

Filed August 1, 2018

IN THE INTEREST OF L.B., B.B., J.A., and A.E.,

Minor Children,

A.E., Mother,

Appellant,

A.B., Father,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Plymouth County, Robert J. Dull, 

District Associate Judge.

Mother and father appeal from an order terminating their rights in their 

children pursuant to Iowa Code chapter 232 (2018). AFFIRMED ON BOTH 

APPEALS.

Kelsey Bauerly Langel of Trotzig & Bauerly, PLC, Le Mars, for appellant 

mother.

Robert B. Brock II of Law Office of Robert B. Brock II, P.C., Le Mars, for 

appellant father.

Thomas J. Miller, Attorney General, and John B. McCormally, Assistant 

Attorney General, for appellee State.

Meret Thali of Juvenile Law Center, Sioux City, guardian ad litem for minor

children.
2

Considered by Potterfield, P.J., and Bower and McDonald, JJ.
3

MCDONALD, Judge.

This case arises out of a chapter 232 proceeding to terminate the parental 

rights of Alicia and Andrew. Alicia is the mother of J.A., A.E., L.B., and B.B. 

Andrew is the father of L.B. and B.B. The juvenile court terminated Alicia’s rights 

in her children pursuant to Iowa Code section 232.116(1)(f) (2018). The juvenile 

court terminated Andrew’s parental rights in his children pursuant to Iowa Code 

section 232.116(1)(f) and (l). The juvenile court also terminated the parental rights 

of the fathers of J.A. and A.E. Those fathers do not appeal. 

This court reviews termination proceedings de novo. See In re A.M., 843 

N.W.2d 100, 110 (Iowa 2014). The statutory framework authorizing the termination 

of a parent-child relationship is well established. See In re A.S., 906 N.W.2d 467, 

472–73 (Iowa 2018) (setting forth the statutory framework). The burden is on the 

State to prove by clear and convincing evidence (1) the statutory ground or 

grounds authorizing the termination of parental rights and (2) termination of 

parental rights is in the best interest of the child. See In re E.H., No. 17-0615, 2017 

WL 2684420, at *1 (Iowa Ct. App. June 21, 2017). Even where the State proves 

its case, the juvenile court has the discretion to preserve the parent-child 

relationship where the parent proves by clear and convincing evidence a statutory 

factor allowing preservation of the parent-child relationship. See Iowa Code 

§ 232.116(3) (setting forth permissive factors to avoid the termination of parental 

rights); In re A.S., 906 N.W.2d at 476 (stating it is the parent’s burden to prove an 

exception to termination). 

We first address the sufficiency of the evidence supporting the termination 

of Alicia and Andrew’s parental rights. Where “the juvenile court terminates 
4

parental rights on more than one statutory ground, we may affirm the juvenile 

court’s order on any ground we find supported by the record.” In re A.B., 815 

N.W.2d 764, 774 (Iowa 2012). We focus our attention on the statutory ground set 

forth in section 232.116(1)(f). As relevant here, this provision requires “clear and 

convincing evidence the children would be exposed to an appreciable risk of 

adjudicatory harm if returned to the parent’s custody at the time of the termination 

hearing.” In re E.H., 2017 WL 2684420, at *1. In assessing the sufficiency of the 

evidence regarding the best interest of the children, we “give primary consideration 

to the children’s safety, to the best placement for furthering the long-term nurturing 

and growth of the children, and to the physical, mental, and emotional condition 

and needs of the children.” In re P.L., 778 N.W.2d 33, 39 (Iowa 2010) (quoting 

Iowa Code § 232.116(2)) (altered for readability).

On de novo review, we conclude the State proved by clear and convincing 

evidence this statutory ground authorizing the termination of Alicia’s rights and 

termination of Alicia’s rights is in the best interest of the children. Alicia has a long 

history of involvement with the Iowa Department of Human Services (IDHS) due 

to her substance abuse, among other things. Most recently, IDHS became 

involved with this family in December 2014. Since that time, Alicia has continued 

to use controlled substances, including methamphetamine, and has not 

demonstrated the ability to maintain sobriety for any appreciable time outside a 

custodial setting. Her continued use of methamphetamine creates an appreciable 

risk of adjudicatory harm to the children and supports the termination of her 

parental rights. See, e.g., In re A.B., 815 N.W.2d at 776 (noting drug addiction can 

render a parent unable to care for children); In re K.C., No. 18-0581, 2018 WL 
5

3057888, at *2 (Iowa Ct. App. June 20, 2018) (affirming termination where mother 

had long history of substance abuse); In re L.S., No. 17-1824, 2018 WL 540968, 

at *1 (Iowa Ct. App. Jan. 24, 2018) (providing untreated substance abuse can 

create a risk of harm to the children); In re B.C., No. 17-0933, 2017 WL 4050975, 

at *1 (Iowa Ct. App. Sept. 13, 2017) (affirming termination where mother had 

history of drug abuse and limited success with treatment and other services); In re 

R.P., No. 16-1154, 2016 WL 4544426, at *2 (Iowa Ct. App. Aug. 31, 2016) 

(affirming termination of parental rights of parent with history of drug abuse); In re 

K.F., No. 14-0892, 2014 WL 4635463, at *3 (Iowa Ct. App. Sept. 17, 2014) (finding 

termination appropriate, where, as here, “[a]lthough [the mother] has been involved 

with services concerning her children at least three times, she does not obtain any 

lasting benefit from those services”); In re H.L., No. 14-0708, 2014 WL 3513262, 

at *3 (Iowa Ct. App. July 16, 2014) (affirming termination of parental rights when 

parent had history of substance abuse). In addition, Alicia has a history of unstable 

employment and housing and was essentially homeless at the time of the 

termination hearing. Alicia’s economic instability and concomitant inability to meet 

the most basic needs of her children create an appreciable risk of harm to the 

children and supports the termination of her parental rights. See, e.g., In re J.M., 

No. 18-0163, 2018 WL 1631391, at *2 (Iowa Ct. App. Apr. 4, 2018) (affirming 

termination where father was unable to meet the basic needs of the children due 

to “inability to maintain employment and obtain stable housing”); In re D.M., No. 18-

0086, 2018 WL 1433104, at *2 (Iowa Ct. App. Mar. 21, 2018) (holding financial 

instability and homelessness showed mother would not be able to provide care for 

the children without creating an appreciable risk of adjudicatory harm); In re J.C., 
6

No. 17-0750, 2017 WL 3283395, at *3 (Iowa Ct. App. Aug. 2, 2017) (affirming 

termination of parental rights where mother was unemployed and essentially 

homeless); In re E.R., No. 14-1816, 2015 WL 162177, at *3 (Iowa Ct. App. Jan. 

14, 2015) (discussing mother’s financial instability and inability to meet the child’s 

basic needs as one basis for termination); In re J.A., No. 13-0735, 2013 WL 

4012434, at *2 (Iowa Ct. App. Aug. 7, 2013) (noting mother’s financial instability 

as significant factor in termination); In re K.K., No. 02-0350, 2002 WL 987376, at 

*1 (Iowa Ct. App. May 15, 2002) (same); In re K.H., No. 03-0671, 2003 WL 

21459582, at *2 (Iowa Ct. App. June 25, 2003) (concluding the children would be 

at a continued risk for harm when the father did not have stable employment or 

housing).

On de novo review, we also conclude the State proved by clear and 

convincing evidence the statutory ground authorizing the termination of Andrew’s 

parental rights and termination of his rights is in the best interest of his children. 

Like Alicia, Andrew has a long history of substance abuse that precluded him from 

providing adequate care for the children. In addition, Andrew has a long history of 

criminal behavior resulting in his incarceration. Andrew was incarcerated for most 

of this case and remained incarcerated at the time of the termination hearing. 

Andrew’s long history of substance abuse, criminal behavior, and incarceration 

precludes the return of the children to his care and supports the termination of his 

parental rights. See, e.g., In re J.M., 2018 WL 1631391 at *1 (affirming termination 

pursuant to section 232.116(1)(f) and (h) where father was incarcerated at the time 

of the termination hearing); In re A.P., No. 17-1830, 2018 WL 540985, at *3 (Iowa 

Ct. App. Jan. 24, 2018) (finding incarceration at the time of the termination hearing 
7

satisfies the requirements of section 232.116(1)(f) and (h)); In re D.S., No. 16-

1149, 2016 WL 5408175, at *1 (Iowa Ct. App. Sept. 28, 2016) (finding sufficient 

grounds for termination where “[t]he father admitted at the combined permanency 

review and termination-of-parental-rights hearing that he could not care for his 

child at that time due to his incarceration”).

Alicia contends this court should exercise its discretion and not terminate 

her parental rights due to the strength of the bond between her and her children. 

Section 232.116(3)(c) provides the court may avoid termination if “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.” The existence of a 

bond between the mother and the children is a factor that can weigh against 

termination, but the court may use its discretion in deciding whether to apply the 

factor to continue the parent-child relationship. See In re A.M., 843 N.W.2d at 113. 

In exercising the discretion to preserve the relationship, our consideration is not 

merely whether there is a bond, “our consideration must center on whether the 

child[ren] will be disadvantaged by termination, and whether the disadvantage 

overcomes” Alicia’s inability to provide for the needs of the children. See In re 

D.W., 791 N.W.2d at 709; see also Iowa Code § 232.116(2) (setting forth the 

factors in determining the child’s best interests).

We decline to preserve the parent-child relationship pursuant to section 

232.116(3)(c). The record reflects Alicia has a bond with her children. There is 

not clear and convincing evidence, however, any disadvantage caused by 

termination of her parental rights is more significant than the benefit to the children. 

To this point in time, Alicia’s life is a story of substance abuse and instability 
8

punctuated by brief interludes of compelled sobriety. What is past is prologue. 

See In re J.E., 723 N.W.2d 793, 798 (Iowa 2006) (noting a parent’s past 

performance is indicative of the quality of care the parent may provide going 

forward); In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (“[I]n considering 

the impact of drug addiction, we must consider the treatment history of the parent 

to gauge the likelihood that the parent will be in a position to parent the child in the 

foreseeable future. Where the parent has been unable to rise above the addiction 

and experience sustained sobriety in a noncustodial setting, and establish the 

essential support system to maintain sobriety, there is little hope of success in 

parenting.” (citation omitted)). In contrast, the children have the opportunity to 

obtain necessary stability and care in her absence. On de novo review, we 

conclude the discretionary exception should not serve to preclude the termination 

of Alicia’s parental rights.

Finally, Alicia contends the juvenile court should have granted her an 

additional six months’ time to reunite with the children. To defer permanency for 

six months, the juvenile court was required to “enumerate the specific factors, 

conditions, or expected behavioral changes which comprise the basis for the 

determination that the need for removal of the child[ren] from the child[ren]’s home 

will no longer exist at the end of the additional six-month period.” Iowa Code 

§ 232.104(2)(b). Here, there is no reason to believe an additional six months’ time 

would have resolved the conditions necessitating removal of the children from 

Alicia’s care. This case has been pending since February 2015. Alicia has 

received numerous services to address her substance abuse and lack of 

employment and housing but to no avail. Alicia’s caseworker testified Alicia tested 
9

positive for methamphetamine almost every month for the year prior to the 

termination hearing—even while she was attending outpatient substance-abuse 

treatment. Termination of Alicia’s rights is appropriate under the circumstances. 

See, e.g., In re C.M., No. 14-1140, 2015 WL 408187, at *4-5 (Iowa Ct. App. Jan. 

28, 2015) (affirming termination of parental rights where the parents sought more 

time but evidence established they were unlikely to resolve their substance abuse 

problems); In re H.L., No. 14-0708, 2014 WL 3513262, at *3-4 (Iowa Ct. App. July

16, 2014) (affirming termination of parental rights where the father had history of 

substance abuse and declining to grant father an additional six months); In re J.L., 

No. 02-1968, 2003 WL 21544226, at *3 (Iowa Ct. App. July 10, 2003) (concluding 

that relapse of parent despite offer of services supported termination of parental 

rights and refusing request for additional time for reunification). 

For these reasons, we affirm the juvenile court’s order terminating the 

parental rights of Alicia and Andrew.

AFFIRMED ON BOTH APPEALS.