IN THE COURT OF APPEALS OF IOWA

No. 19-0533

Filed June 5, 2019

IN THE INTEREST OF N.S. and M.S.,

Minor Children,

M.S., Father,

Appellant,

P.A., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Colin J. Witt, District 

Associate Judge.

A mother appeals the termination of her parental rights to two children, and 

a father appeals the termination of his parental rights to the older child. AFFIRMED

ON BOTH APPEALS.

Blake D. Lubinus of Lubinus Law Firm, Des Moines, for appellant father.

Heidi Young of Parrish Kruidenier Dunn Boles Gribble Gentry Brown & 

Bergmann, LLP, Des Moines, for appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney 

General, for appellee State.

Yvonne C. Naanep, Des Moines, attorney for minor children.

Teresa Pope of Branstad Law, PLLC, Des Moines, guardian ad litem for 

minor children.

Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.

This appeal involves two children, born in 2009 and 2010. The juvenile 

court terminated the mother’s parental rights to both children and the father’s 

parental rights to the older child. On appeal, both parents contend the State failed 

to prove the grounds for termination cited by the court and termination is not in the 

children’s best interests.

I. Mother

The juvenile court terminated the mother’s parental rights under four 

statutory provisions. We may affirm if we find clear and convincing evidence to 

support any of the grounds. See In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). 

On our de novo review, we focus on Iowa Code section 232.116(1)(f) (2019), which 

requires proof of several elements, including proof the child cannot be returned to 

the parent’s custody. 

The family came to the attention of the department of human services in 

2016 after the mother gave birth to a child with opiates in her system. That child 

is not a subject of this appeal. Nor is the third of the mother’s four children. This 

appeal involves the first two children. 

The children were temporarily removed from the mother’s custody with her 

consent. The juvenile court later adjudicated them in need of assistance. Although 

the mother obtained a substance-abuse evaluation and completed an extended 

outpatient drug-treatment program, she was unsuccessfully discharged from 

another treatment program, and the department reported that she “appear[ed] in 

denial regarding her substance abuse.” Nonetheless, reunification remained the 

goal.
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At the end of 2016, the mother tested positive for cocaine and, in February

2017, she failed three drug tests. Later that year, the district court placed the two 

children with their maternal grandmother.

The placement did not go well. According to the State, the grandmother 

was unable to set appropriate boundaries with the mother, who appeared to be 

using drugs and was unengaged in services. The younger child was transferred 

to his father in South Dakota for a trial home visit. The older child was returned to 

foster care, where she remained through the termination hearing.

After several months, the department discovered that the father had moved 

from South Dakota to Minnesota “without notifying anyone.” The younger child 

was removed from his care and was returned to Iowa, where the court ordered him 

placed with his mother for a thirty-day trial home stay.

The mother failed to get the child to school on time, missed a therapy 

appointment and, according to the department social worker overseeing the case,

“was using drugs at that time.” The juvenile court returned the younger child to 

foster care. 

The State petitioned to terminate parental rights. At an evidentiary hearing, 

the department social worker testified the mother “never really truly felt that she 

needed treatment.” When asked if substance-abuse concerns were resolved, the 

worker stated, “No, not at all.” She also testified to the absence of regular contact 

between the mother and children for four months. 

The mother also testified. When asked whether she consented to 

termination of her parental rights to the children, she responded, “I agree in a sense 

of a way there’s no way that I can get them. So I agree.” Later, she stated it would 
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not be appropriate to return the children to her custody “[c]onsidering where” she 

lived. Her concessions confirm the children could not be returned to her custody, 

as set forth in section 232.116(1)(f)(4). 

We turn to the mother’s argument that termination is not in the children’s 

best interests. See Iowa Code § 232.116(2). The case was opened almost three 

years prior to the termination hearing. The juvenile court afforded the mother every 

opportunity to resume care of her children, including regular visits and a trial home 

placement of the younger child. The mother continued to use non-prescribed 

opiates and showed herself unable to safely parent the younger child. The older 

child was doing well in foster care and wished to remain there. We conclude 

termination is in the children’s best interests.

In connection with her best-interests argument, the mother also contends 

the court should have placed the children in a guardianship with their maternal 

grandmother. The district court tried that option, without success. There was no 

reason to try again. 

On our de novo review, we affirm the district court’s termination of the 

mother’s parental rights to these two children.

II. Father

As noted, the father of the two children involved in this appeal lived in South 

Dakota and Minnesota. The district court denied the State’s petition to terminate 

the father’s parental rights to the younger child, reasoning that the father did not 

abandon or desert the child as alleged in section 232.116(1)(b) and made efforts 

to have meaningful contact with the child, contrary to section 232.116(1)(e). The 
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father argues the court also should have declined to terminate his parental rights 

to the older child. On our de novo review, we disagree.

The father concedes he had little contact with the older child. He attempts 

to excuse the absence of contact by citing his limited resources. We do not doubt 

that travel to Iowa was financially burdensome. But the department attempted to 

alleviate the burden by offering him gift and gas cards. The department also 

afforded the father phone calls with the older child, an option the father admitted 

he did not regularly utilize. We are persuaded he failed to make “a genuine effort 

to maintain communication with the child.” See id. § 232.116(1)(e)(3). The State 

proved termination of the father’s parental rights to the older child is warranted 

under section 232.116(1)(e).

The father also argues termination is not in the older child’s best interests. 

See Iowa Code § 232.116(2). We disagree. The father did not participate in 

therapy to repair his frayed relationship with the child. After almost three years, 

the child expressed a strong desire to remain where she was. On our de novo 

review, we conclude the emotional well-being of the child militated against 

reunification. We affirm the termination of the father’s parental rights to the older 

child.

AFFIRMED ON BOTH APPEALS.