IN THE COURT OF APPEALS OF IOWA

No. 17-0860

Filed July 19, 2017

IN THE INTEREST OF N.M. and J.B.,

Minor Children,

B.B., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, David F. 

Staudt, Judge.

A mother appeals the termination of her parental rights to her children. 

AFFIRMED.

Joshua M. Moon of Dutton, Braun, Staack & Hellman, P.L.C., Waterloo, 

for appellant mother.

Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney 

General, for appellee State.

Timothy M. Baldwin of Juvenile Public Defender’s Office, Waterloo, 

guardian ad litem for minor children.

Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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DOYLE, Judge.

A mother appeals the termination of her parental rights to her children. 

She contends the State failed to prove the grounds for termination. She seeks 

additional time to prove she can safely parent the children. Upon our de novo 

review, see In re J.S., 846 N.W.2d 36, 40 (Iowa 2014), we affirm.

I. Background Facts and Proceedings.

The Iowa Department of Human Services (DHS) became involved with 

this family due in part to the mother’s history of relationships with men who 

engage in domestic violence. Before J.B. and N.M. were born, the juvenile court 

removed two older children from the mother’s care as a result of that history, the 

unsafe condition of her home, and failure to supervise the children. The juvenile 

court has since terminated the mother’s parental rights to the older children. 

In spite of the services the mother had already been receiving from the 

DHS, when J.B. was two weeks old, the mother left the child in her apartment 

unsupervised. The mother also exposed J.B. to domestic violence in the home. 

The mother consented to J.B.’s removal from her care and adjudication as a child 

in need of assistance (CINA). N.M. was removed from the mother’s care at birth 

due to ongoing concerns about the mother’s ability to provide safe parenting. 

The mother later stipulated to N.M.’s CINA adjudication and placement with the 

DHS. 

The State filed petitions to terminate the mother’s parental rights to J.B. 

and N.M. After a hearing, the juvenile court entered its order terminating the 

mother’s parental rights to both children pursuant to Iowa Code section 

232.116(1)(g) and (h) (2016). The mother appeals. 
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II. Analysis.

Before the court may terminate parental rights, it must find clear and 

convincing evidence supporting one of the grounds for termination listed under 

section 232.116(1). See In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). The 

district court terminated the mother’s parental rights under section 232.116(1)(g) 

and (h). We may affirm the termination order if there is evidence to support 

termination under one ground. See id. at 707.

The court may terminate parental rights under Iowa Code section 

232.116(1)(h) if the evidence shows the following:

(1) The child[ren are] three years of age or younger.

(2) The child[ren have] been adjudicated [children] in need of 

assistance pursuant to section 232.96.

(3) The child[ren have] been removed from the physical 

custody of the child[ren]’s parents for at least six months of the last 

twelve months, or for the last six consecutive months and any trial 

period at home has been less than thirty days.

(4) There is clear and convincing evidence that the child[ren] 

cannot be returned to the custody of the child[ren]’s parents as 

provided in section 232.102 at the present time.

The mother does not dispute the State proved the first three elements. 

With regard to the final requirement that the children cannot be returned to 

the parent, “at the present time” means “at the time of the termination hearing.” 

D.W., 791 N.W.2d at 707. At the time of the termination hearing, the mother’s 

visits remained supervised. As the juvenile court observed, the mother

has made little, if any, progress since 2015. She has failed to make 

any improvement in her parenting abilities or skills. She continues 

to place her children in danger while exercising supervised 

visitation. She has placed her needs above the needs of her 

children. She has been involved romantically with men that are 

poor choices for her and her children. They have been abusive to 

her. She has been the victim of domestic abuse . . . . [The mother] 

continues to make poor choices concerning her relationships.
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[The mother] has been unable to show to the [DHS] that she 

is capable of monitoring and parenting her children. She must 

continue to be prompted to feed and change diapers. She has 

great difficulty in getting the children organized and transferred at 

the time of visitation. The children have been in danger during her 

visitation. Her children have also created potentially dangerous 

situations while at the hospital. It would appear that [the mother] 

cannot keep her children safe.

We give weight to these findings, which are supported by the record. See In re 

A.B., 815 N.W.2d 764, 773 (Iowa 2012).

Once we determine the statutory grounds for termination exist, we must 

determine whether termination is in the children’s best interest. See In re A.M., 

843 N.W.2d 100, 112 (Iowa 2014). In doing so, 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 condition and 

needs of the child.” Iowa Code § 232.116(2). The children’s safety is one of the 

“defining elements” of the best-interest determination. See In re J.E., 723 

N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially). As stated above, 

the mother is unable to keep the children safe. It is in the children’s best 

interests to terminate mother’s parental rights. 

Iowa Code section 232.116(3) provides the circumstances in which the 

court “need not terminate the relationship between the parent and child.” These 

provisions are permissive, not mandatory. See also In re C.L.H., 500 N.W.2d 

449, 454 (Iowa Ct. App. 1993), overruled on other grounds by In re P.L., 778 

N.W.2d 33, 39-40 (Iowa 2010). The decision to apply one of the statutory 

exceptions to termination is discretionary and depends on the child’s best 

interests under the circumstances of that particular case. See id. 
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The mother argues termination could be avoided under the exception 

provided in section 232.116(3)(c) because there is clear and convincing evidence 

that termination would be detrimental due to the closeness of the parent-child 

relationship. The record does not support her assertion. J.B. was less than one 

year old at the time of removal, and the mother has not provided care for J.B. for 

over half of the child’s life. N.B. was a newborn at the time of removal, and the 

mother has never provided care for N.B. The mother failed to attend visits with 

the children consistently. There is no evidence of a parent-child bond that would 

render termination of the mother’s parental rights detrimental to either child. 

The mother also claims termination of J.B. should be avoided under the 

exception provided in section 232.116(3)(a) (providing an exception to 

termination if a relative has legal custody of the child). Although J.B. was placed 

in the care of relatives, no relative has legal custody of the child. See A.M., 843 

N.W.2d at 112, 113 (noting that although A.M. was in the care of her 

grandparents, she was not in their legal custody, making section 232.116(3)(a) 

inapplicable). The mother’s claim that guardianship of J.B. “could have been 

transferred to a relative under Iowa Code section 232.104(3)” is unpersuasive. 

 Finally, the mother asks for additional time to prove the children can be 

returned to her care. However, despite several years of involvement with the 

DHS, the mother has been unable to develop the necessary parenting skills to 

provide safe and consistent parenting for these children. As the juvenile court 

found:

[The mother] has made little, if any, progress over the years. 

She continues to participate at between a 50% and 75% 

attendance rate in [DHS] programming. She has been offered 
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parent education classes . . . [but] has failed to attend any 

meetings . . . since February of this year. . . . [The service provider] 

believes that [the mother] is incapable of utilizing the learned skills 

or has chosen not to put to use the information she has gained.

[The mother]’s participation in mental health counseling has 

been described as “hit and miss.” . . . She has failed to make 

significant progress in addressing those same mental health issues. 

[The mother] may have good intentions; however, her mental 

health diagnosis and lack of ability or desire to change are barriers 

to long-term advancement. Her perpetual failure to improve her 

parenting skills prevents her from meeting department 

expectations. She fails to keep her children safe during visits. She 

has not attended all visits. Her children can be described as being 

at great risk of harm because of her poor choices. She can 

concentrate on only one child at a time. It appears that she is 

unable to tend to two children at a time. . . . 

[The mother] may attempt to parent her children, but her 

children are in danger when in her care. Additional time for [the 

mother] will not solve her issues. [The mother] has been involved 

with the [DHS] and its programming for years. She has failed to 

adequately grasp the necessary improvements she must make in 

her parenting skills to allow her children to return to her home.

Delaying termination is contrary to the children’s best interests. See In re D.J.R., 

454 N.W.2d 838, 845 (Iowa 1990) (“We have long recognized that the best 

interests of a child are often not served by requiring the child to stay in 

‘parentless limbo.’” (citation omitted)). “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.” See P.L., 778 

N.W.2d at 41; see also In re A.C., 415 N.W.2d 609, 613-14 (Iowa 1987) (noting it 

is important to fix child custody quickly to avoid parentless limbo and holding that 

once the statutory time limits for termination have been met, it is unnecessary to 

take any more from the children’s future). 
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We affirm the order terminating the mother’s parental rights to J.B. and 

N.M.

AFFIRMED.