IN THE SUPREME COURT OF IOWA

No. 15–1256

Filed March 4, 2016

Amended May 17, 2016

IN THE INTEREST OF M.W. AND Z.W.,

Minor Children,

R.W., Mother,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Woodbury County, Julie A. 

Schumacher, Judge.

The juvenile court terminated a mother’s parental rights to her two 

children. The State appeals a court of appeals decision affirming the 

juvenile court’s termination of parental rights for one child and reversing 

the termination of parental rights for the other child. DECISION OF 

COURT OF APPEALS AFFIRMED IN PART AND REVERSED IN PART; 

JUVENILE COURT JUDGMENT AFFIRMED.

David A. Dawson, Sioux City (until withdrawal), then Theresa 

Rachel of Deck Law, L.L.P., Sioux City, for appellant.

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

Assistant Attorney General, Patrick A. Jennings, County Attorney, and 

Dewey P. Sloan, Assistant County Attorney, for appellee.
2

ZAGER, Justice.

The juvenile court terminated a mother’s parental rights to two of 

her children. The court of appeals affirmed the termination of parental 

rights to one of the children and reversed as to the other. The State 

appeals and requests that we affirm the juvenile court’s termination of 

parental rights for both children. After our de novo review of the record, 

we conclude that the juvenile court order terminating parental rights to 

M.W. under Iowa Code section 232.116(1)(h) (2013) was proper. We 

therefore affirm the decision of the court of appeals to the extent it

confirmed the termination of parental rights to M.W. However, we 

reverse the decision of the court of appeals as to Z.W. and conclude that 

termination of parental rights to Z.W. under Iowa Code section 

232.116(1)(h) was also proper and supported by clear and convincing 

evidence in the record. We affirm the court of appeals on all other 

grounds.

I. Background Facts and Proceedings.

R.W. is the mother and M.D.W. is the father of M.W. and Z.W. (the 

children). Both parents’ parental rights to the children were terminated 

in July 2015.1 M.W. was born in April 2013 and Z.W. was born in March 

2012, making them two years old and three years old at the time of the 

termination hearing.

The family came to the attention of Child Protective Services (CPS) 

on or around April 29, 2014, after the children’s younger sibling L.W. 

died while under the supervision of their father.2 M.D.W. reported that 

1The parental rights of M.D.W. to M.W. and Z.W. were terminated at the same 

time as those of R.W., but M.D.W. did not appeal the termination order. Thus, we only 

address the termination of parental rights as to R.W.

2M.D.W. was charged with three counts of neglect of a dependent person in 

violation of Iowa Code section 726.3, one count of child endangerment resulting in the 

death of a child in violation of Iowa Code section 726.6(4), and one count of child

 
3

he awoke at noon to find L.W. unresponsive. M.D.W. arrived at Unity 

Point Hospital in Sioux City with L.W. at approximately 2:20 p.m. He 

reported that the reason he did not call an ambulance for L.W. was that 

there was an active arrest warrant for him in Woodbury County. By the 

time M.D.W. arrived at the hospital with L.W., full rigor mortis had set 

in. Hospital personnel estimated that the time of death was four hours 

prior to arriving at the hospital. When L.W. arrived at the hospital, he 

was wearing filthy clothes that reeked of urine and feces, was unbathed, 

and had a number of sores around his neck. As described by the 

juvenile court, the autopsy report noted that L.W.

had a wizened appearance with skin tenting and sunken 

eyes, . . . [and] failure to thrive with all growth parameters 

below the fifth percentile. The report further noted 

contusions and abrasions on the 2-month-old infant’s 

hands, further noting the post-mortem chemistry was 

consistent with severe dehydration. The report indicated the 

cause of death as malnutrition and dehydration due to 

neglect, with [the] manner of death being homicide.

Although L.W. was approximately two months old at the time of his 

death, R.W. reported that he may have only received three baths in his 

life because she was often too tired after returning home from work to 

bathe him. She also reported only giving L.W. bottles of sugar water on 

numerous occasions.

On the same day L.W. was brought to the hospital, law 

enforcement and CPS officers executed a removal order and removed the 

children from the home. The children were placed in foster care with 

nonrelatives. The same day that the children were removed from their 

endangerment resulting in the bodily injury of a child in violation of Iowa Code section 

726.6(6). R.W. was charged with one count of child endangerment resulting in the 

death of a child in violation of Iowa Code section 726.6(4), and three counts of neglect of 

a dependent person in violation of Iowa Code section 726.3. Her trial was still pending 

at the time of the termination hearing.

_________________________________
4

parents’ care, law enforcement and CPS officers went to the apartment 

where R.W., M.D.W., and the children had been residing. The 

investigators described the conditions of the home as deplorable. On 

May 1, Dr. Jung visited the apartment with law enforcement officers. He 

reported,

I inspected all rooms of the residence. I inspected the 

bedroom where the parents slept. I inspected the children’s 

bedding in their bedroom. I inspected the bathroom which 

was very foul smelling with hundreds of flies and gnats 

surrounding a substantial pile of very old and putrid 

smelling soiled diapers.

The children’s bedding was caked with soiling and 

matted dirt, debris, and body fluid. There was a very strong 

stench coming from the children’s bedroom. Scatter[ed] 

throughout the floor on the carpet of the entire apartment 

were discarded used food containers and garbage which 

made it difficult to walk through. The carpet was stained 

and smelled of rotting feces and decaying vegetables and 

food products. All surfaces, including chairs, floors, and 

bedding were in an extremely filthy, putrid, and unhealthy 

state. The stench was sickening and clearly was not safe to 

inhabit by anyone.

It would be my medical opinion that this apartment 

was not in a safe living condition for anyone, but particularly 

small dependent children who would be at serious medical 

and health risk by living in this squalor, filth and fly/gnat 

infested environment. The conditions of this home are 

beyond what one could appreciate with a photograph. The 

stench, the flies, the gnats, carpet, bedding, the trash, the 

rotting dirty diapers from months previous created a garbage 

dump odor and appearance. The conditions of this 

apartment as stated previous[ly are] not safe for children to 

be residing in to maintain a minimum level of health and 

safety.

Additionally, the landlord had sent R.W. a number of letters about 

the condition of her apartment. The landlord inspected the apartment in 

January and February 2014 and observed a strong odor, garbage around 

the apartment, soiled carpet, and dirty dishes everywhere. He gave R.W.

time to clean the apartment and scheduled a re-inspection in March. 
5

R.W. refused the landlord’s employee entry to the apartment when it 

came time for the re-inspection. Following Dr. Jung’s inspection on May 

1, R.W. cleaned her apartment. The landlord reported that R.W. had 

cleaned the apartment and obtained new furniture as of May 13.

Following their removal, hair stat tests were performed on the 

children. M.W. tested positive for cannabinoids and carboxy-THC. Z.W. 

tested positive for cannabinoids, carboxy-THC, and native THC. A test 

was also performed on the deceased L.W., who tested positive for 

amphetamines, methamphetamine, cannabinoids, carboxy-THC, and 

native THC. R.W. initially admitted that both she and M.D.W. had 

substance abuse problems. She stated that she only used marijuana 

and denied the use of any amphetamines. However, she did 

acknowledge that she was uncertain what drugs she had ingested on a 

number of occasions because “[M.D.W.] would load the pipes and she 

would not necessarily know what was being loaded in the pipe.” She also 

admitted that she had given M.D.W. money in the past to buy marijuana 

to calm his nerves and to buy Adderall so he would be able to stay awake 

while watching the children. M.D.W. was on probation at the time of the 

children’s removal, and his probation officer collected a urine sample. 

This urinalysis tested positive for THC. M.D.W. admitted to using 

Adderall and signed an admission that the last time he used marijuana

was on or around April 26. M.D.W. also has a history of domestic abuse 

assaults. R.W. was the victim of at least two domestic assaults by 

M.D.W. On at least one occasion, all three children were present in the 

apartment when M.D.W. assaulted R.W.

M.D.W. was the primary caretaker of the three children while R.W.

was at work. However, R.W. acknowledged that she knew M.D.W. was 

not providing an adequate level of care for the children while she was at 
6

work, and she did nothing to remedy the situation. R.W. told CPS that 

M.D.W. would stay up all night playing video games and sleep during the 

day instead of taking care of the three children. She said that she knew 

the children were not being fed properly, were not being bathed, and 

were being neglected by M.D.W. CPS noted in its investigative report 

that “[R.W.] was fully aware of the type of care [the children] were 

receiving from [M.D.W.] and she did nothing to protect her children.”

A temporary removal hearing was held on May 8 for M.W. and Z.W. 

After the hearing, custody of the children remained with the Department 

of Human Services (DHS) for placement in foster care, subject to 

visitation at DHS discretion. The juvenile court found that it would be 

contrary to the welfare of the children for them to be in the custody of 

their parents. On May 28, CPS finished its investigation into the 

conditions giving rise to the children’s removal. The report confirmed the 

allegations as to M.W., Z.W., and L.W. for: (1) the denial of critical care 

for failure to provide adequate shelter, adequate supervision, or adequate 

health care; and (2) the presence of illegal drugs in the body of a child.

R.W. obtained a substance abuse evaluation. The substance 

abuse evaluation recommended that she enroll in residential-level care, 

followed by a half-way house or intensive outpatient treatment. R.W. did 

not follow this recommendation and instead chose to participate in 

intensive outpatient treatment. She began treatment on May 13, and the 

record reveals that her participation remained consistent. Her therapist 

rated her at a moderate risk for relapse and recommended that she 

remain in the intensive outpatient program. R.W. also underwent a 

psychiatric evaluation on May 28. She was diagnosed with Major 

Depressive Disorder, Generalized Anxiety Disorder, Posttraumatic Stress 

Disorder (PTSD), and Dependent Personality Disorder. She was 
7

prescribed medications to help with her nightmares and PTSD 

symptoms, and her evaluator recommended that she attend therapy on a 

regular basis.

On May 29, the juvenile court held a combined temporary removal 

and adjudication hearing. In an order filed June 2, the court noted that 

R.W. had stipulated to the statutory grounds for adjudication but not the 

factual grounds. The court found that there was clear and convincing 

evidence that M.W. and Z.W. were children in need of assistance (CINA) 

pursuant to the statutory grounds as alleged in the petition filed by the 

State on May 1 and the amended petition filed by the State on May 2. 

The grounds alleged in the State’s amended petition included Iowa Code 

sections 232.2(6)(b), .2(6)(c)(2) and .2(6)(n). The juvenile court noted that 

all parties were in agreement with the pre-dispositional 

recommendations. Neither parent appealed the CINA adjudication order.

On the same day that the children were adjudicated CINA, the 

juvenile court denied R.W.’s request to place the children in the care of 

their maternal aunt and her spouse. The juvenile court noted as a 

potential concern the fact that the aunt had visited the apartment 

sixteen days before L.W.’s death and reported that she believed the 

apartment was clean and that she saw nothing wrong with L.W. The

aunt and her spouse did eventually complete foster care classes and 

were licensed as foster parents. They took physical custody of M.W. and 

Z.W. in February 2015.

After the CINA adjudication, R.W. underwent another psychological 

evaluation with Dr. Michael Baker. R.W. reported no history of therapy

but indicated she took Lexapro in the past for approximately one month 

due to feeling overwhelmed taking care of three young children. She 

reported having suicidal thoughts in the past and cutting herself to gain 
8

attention. Both of these statements are contrary to what she told her

original evaluator. Dr. Baker summarized his evaluation of R.W., stating,

[R.W.] generally reports a non-traumatic childhood 

background, a fairly responsible work history, an intellectual 

and educational level of at least average, and yet remained in 

this very co-dependent, abusive arrangement with obvious 

lack of care for her children . . . . While feeling overwhelmed 

by the situation of childcare, employment, and the 

dysfunction of a substance abusing, non-responsible acting 

father to her children, she did not approach any constructive 

options for change, but continued to return to the same 

dysfunctional, unhealthy and disastrous situation for herself 

and her children.

. . . .

[R.W.’s] extreme poor judgment not only for her own 

emotional health regarding [her relationship with M.D.W.], 

but more so lack of addressing the severe needs present for 

the children, particularly in the absence initially of 

emotional/mental illness or more severe substance abuse, 

suggests a lack of benefit from mental health/substance 

treatment. While issues are now present to be treated, 

reunification with her children is questionable. The 

continued lack of normal maternal interest in their care 

(nutrition, medical, safety, etc.) strongly suggests attributes 

resistant to change.

Dr. Baker diagnosed R.W. with Depressive Disorder NOS and Cluster C–

Dependent Personality Features. CPS has noted concerns that R.W. “is 

doing all that is requested in a short time period, and possibly not 

internalizing everything she is learning and working on. [She is] 

[p]ossibly just going through the motions and checking off things on her 

to do list.” However, R.W. attended grief therapy after the death of L.W.,

and her therapist recommended reunification because R.W. has “better 

self-esteem and love for herself.” There is no evidence in the record 

regarding whether the grief therapist was informed of the circumstances 

surrounding L.W.’s death.
9

On November 7, the State filed its petition for termination of 

parental rights concerning M.W. and Z.W. In the petition, the State pled 

that the parent–child relationship between R.W. and the children should 

be terminated pursuant to Iowa Code sections 232.116(1)(d), (h) and (i).3 

The petition also set forth specific facts and reasons in support of 

termination. Some of the facts the petition alleged in support of 

3Iowa Code section 232.116(1) provides in relevant part:

[T]he court may order the termination of both the parental rights with 

respect to a child and the relationship between the parent and the child 

on any of the following grounds:

. . . 

d. The court finds that both of the following have occurred:

(1) The court has previously adjudicated the child to be a child in 

need of assistance after finding the child to have been physically or 

sexually abused or neglected as the result of the acts or omissions of one 

or both parents, or the court has previously adjudicated a child who is a 

member of the same family to be a child in need of assistance after such 

a finding.

(2) Subsequent to the child in need of assistance adjudication, the 

parents were offered or received services to correct the circumstances 

which led to the adjudication, and the circumstance continues to exist 

despite the offer or receipt of services.

. . .

h. The court finds that all of the following have occurred:

(1) The child is three years of age or younger.

(2) The child has been adjudicated a child in need of assistance 

pursuant to section 232.96.

(3) The child has been removed from the physical custody of the 

child’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 cannot 

be returned to the custody of the child’s parents as provided in section 

232.102 at the present time.

i. The court finds that all of the following have occurred:

(1) The child meets the definition of child in need of assistance 

based on a finding of physical or sexual abuse or neglect as a result of 

the acts or omissions of one or both parents.

(2) There is clear and convincing evidence that the abuse or 

neglect posed a significant risk to the life of the child or constituted 

imminent danger to the child.

(3) There is clear and convincing evidence that the offer or receipt 

of services would not correct the conditions which led to the abuse or 

neglect of the child within a reasonable period of time.

 
10

termination included the following: that both children were three years of 

age or younger; R.W.’s history of only supervised visitation; that R.W. 

struggled to parent all three children at once; that the children exhibited 

negative behavior following visitation; that R.W. made progress with 

substance abuse treatment but made limited progress with mental 

health treatment; the psychiatrist’s statement that “continued lack of 

normal maternal interest in her children’s care (nutrition, medical, 

safety, etc.) strongly suggests attributes resistant to change” and his 

conclusion that “reunification with her children is questionable”; and 

behavior indicative of the mother’s persistent lack of judgment and codependence.4 Even with on-going services being provided to R.W., the 

State alleged that the conditions which led to the removal of the children 

and CINA adjudication could not be corrected within a reasonable period 

of time and that the children could not be returned to the mother’s 

custody.

The hearing on the termination petition came before the juvenile 

court on May 8, 2015, and the court issued its order on July 7. In that 

order, the court concluded that each of the statutory grounds advanced 

by the State in its petition for termination of parental rights as to M.W. 

and Z.W. was supported by clear and convincing evidence. See id.

§ 232.117(3). The juvenile court also concluded that M.W and Z.W. 

could not be returned to the care of their mother. Finally, it concluded 

that it was in the best interest of each of the children to terminate the 

parent–child relationships so that they will have the opportunity to grow 

and mature in a safe, healthy, and stimulating environment. In its 

4R.W. had become pregnant very soon after the death of L.W. D.W. was born in 

March 2015. Additionally, T.W., the putative father of D.W., has a history of child 

abuse and exhibits controlling behavior with R.W.

 
11

order, judgment and decree, the juvenile court terminated the parental 

rights to M.W. and Z.W. pursuant to sections 232.116(1)(d) and (i). It 

also terminated the parental rights to M.W.—but not Z.W.—pursuant to 

section 232.116(1)(h). R.W. appealed, and we transferred the case to the 

court of appeals. The court of appeals affirmed the termination of 

parental rights to M.W., but reversed the termination of parental rights 

to Z.W. The State applied for further review, which we granted.

II. Standard of Review.

In termination-of-parental-rights cases, we review the proceedings 

de novo. In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). “We are not 

bound by the juvenile court’s findings of fact, but we do give them 

weight, especially in assessing the credibility of witnesses.” Id. (quoting 

In re D.W., 791 N.W.2d 703, 706 (Iowa 2010)). There must be clear and 

convincing evidence of the grounds for termination of parental rights. 

D.W., 791 N.W.2d at 706; see Iowa Code § 232.117(3). Evidence is 

considered clear and convincing “when there are no ‘serious or 

substantial doubts as to the correctness [of] conclusions of law drawn 

from the evidence.’ ” Id. (quoting In re C.B., 611 N.W.2d 489, 492 (Iowa 

2000)).5

III. Analysis.

Our review of termination of parental rights under Iowa Code 

chapter 232 is a three-step analysis. D.W., 791 N.W.2d at 706. The first 

step is to determine whether any ground for termination under section 

232.116(1) has been established. Id. If we find that a ground for 

termination has been established, then we determine whether the best5This oft-quoted language suffers from a malignant sixteen-year-old typo. By 

following the quotation all the way back to its inception, we note it is meant to read “the 

correctness of conclusions of law.” See Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa Ct. 

App. 1983).

 
12

interest framework as laid out in section 232.116(2) supports the 

termination of parental rights. Id. at 706–07. Finally, if we do find that 

the statutory best-interest framework supports the termination of 

parental rights, we consider whether any exceptions in section 

232.116(3) apply to preclude termination of parental rights. Id. at 707.

A. Error Preservation. Here, we are confronted with a unique 

situation. The order, judgment, and decree from the juvenile court is

internally inconsistent regarding the grounds relied on in terminating the 

parental rights to M.W. and Z.W. After an exhaustive review of the facts, 

the juvenile court notes that under Iowa law, the court may order 

termination of parental rights if there is clear and convincing evidence to 

support any of the grounds for termination as set forth in Iowa Code 

section 232.116. The juvenile court then concludes that “each of the 

statutory grounds advanced by the State in its Petition for Termination of 

Parental Rights as to [M.W.] and [Z.W.] is supported by clear and 

convincing evidence.” (Emphasis added.) The State’s petition for 

termination requested that R.W.’s rights to both M.W. and Z.W. be 

terminated under Iowa Code sections 232.116(1)(d), (h), and (i). 

However, in the order, judgment and decree section of the termination

order, the juvenile court ordered that the parental rights to M.W. be

terminated under all three sections but the parental rights to Z.W. be

terminated only under sections 232.116(1)(d) and (i). The juvenile court

provides no explanation as to why it applied section 232.116(1)(h) only to 

M.W. and not to Z.W.

The court of appeals first analyzed whether the parental rights to 

the children could be properly terminated pursuant to Iowa Code 

sections 232.116(1)(d) and (i). Each of these code provisions require 

“physical abuse or neglect” or “abuse or neglect,” which both the code 
13

and this court have defined as meaning “any nonaccidental physical 

injury suffered by a child as the result of the acts or omissions of the 

child’s parent, guardian, or custodian or other person legally responsible 

for the child.” Iowa Code § 232.2(42); In re J.S., 846 N.W.2d 36, 41 (Iowa 

2014). The court of appeals concluded that the record contained no 

evidence that either of the children suffered a “nonaccidental physical 

injury” that would support the termination of parental rights pursuant to 

these code sections. We agree and affirm the court of appeals in this 

regard. We also affirm the court of appeals on R.W.’s other numerous 

contentions of claimed error by the juvenile court.

However, the court of appeals declined to consider the termination 

of parental rights to Z.W. under Iowa Code section 232.116(1)(h). 

Procedurally, the State did not file an Iowa Rule of Civil Procedure 

1.904(2)6 motion to modify the termination order, nor did it file a crossappeal seeking appellate review of the termination order with regard to 

the distinction between M.W. and Z.W. under section 232.116(1)(h). The 

court of appeals cited to a previous case, In re A.R., wherein the court of 

appeals held that it would not terminate parental rights on a ground not 

relied upon by the juvenile court when the State did not file either a rule 

1.904(2) motion or a cross-appeal. 865 N.W.2d 619, 629–30, 633 (Iowa 

Ct. App. 2015). However, because our holding in this case is contrary to 

the court of appeals’ conclusion, we overrule In re A.R. to the extent it 

held a rule 1.904(2) motion or cross-appeal was required for it to 

6Iowa Rule of Civil Procedure 1.904(2) provides,

On motion joined with or filed within the time allowed for a motion for 

new trial, the findings and conclusions may be enlarged or amended and 

the judgment or decree modified accordingly or a different judgment or 

decree substituted. But a party, on appeal, may challenge the 

sufficiency of the evidence to sustain any finding without having objected 

to it by such motion or otherwise.

 
14

consider alternate grounds for affirmance that were raised before the 

juvenile court.

Under our general rules of appellate review, “[w]e are obliged to 

affirm an appeal where any proper basis appears for a trial court’s ruling, 

even though it is not one upon which the court based its holding.” State 

v. Maxwell, 743 N.W.2d 185, 192 (Iowa 2008) (quoting Citizens First Nat’l 

Bank v. Hoyt, 297 N.W.2d 329, 332 (Iowa 1980)). Although this court 

has not yet had the opportunity to apply this general rule of appellate 

review to termination-of-parental-rights cases, the court of appeals has 

done so. See, e.g., In re T.N.M., 542 N.W.2d 574, 575 (Iowa Ct. App. 

1995).7 Nevertheless, “[o]ur cases are legion which hold that a trial court 

may be affirmed on grounds upon which it does not rely.” Johnston 

Equip. Corp. of Iowa v. Indus. Indem., 489 N.W.2d 13, 17 (Iowa 1992). It 

is when a party does not present an issue to the district court that we 

decline to decide the issue. See City of Postville v. Upper Explorerland 

Reg’l Planning Comm’n, 834 N.W.2d 1, 8 (Iowa 2013).

Further, the State was not required to file a cross-appeal for us to 

consider whether parental rights to Z.W. may be terminated under 

section 232.116(1)(h). “It is well-settled law that a prevailing party can 

raise an alternative ground for affirmance on appeal without filing a 

notice of cross-appeal, as long as the prevailing party raised the 

alternative ground in the district court.” Duck Creek Tire Serv., Inc. v. 

Goodyear Corners, L.C., 796 N.W.2d 886, 893 (Iowa 2011); see also

Moyer v. City of Des Moines, 505 N.W.2d 191, 193 (Iowa 1993) (“A 

successful party, without appealing, may attempt to save a judgment on 

7The court of appeals has also applied this principle in a number of unpublished 

termination-of-parental-rights cases. See, e.g., In re J.B., No. 08–1557, 2009 WL 

1140492, at *2 (Iowa Ct. App. March 11, 2009).

 
15

appeal based on grounds urged in the district court but not considered 

by that court.”). We have previously noted that “a successful party need 

not cross-appeal to preserve error on a ground urged but ignored or 

rejected” in the trial court. EnviroGas, L.P. v. Cedar Rapids/Linn Cty.

Solid Waste Agency, 641 N.W.2d 776, 781 (Iowa 2002) (quoting Johnston 

Equip. Corp., 489 N.W.2d at 16). “This is because a party need not, in 

fact cannot, appeal from a favorable ruling.” Johnston Equip. Corp., 489 

N.W.2d at 16. Therefore, we hold the prevailing party in a terminationof-parental-rights action need not file a cross-appeal or a rule 1.904(2) 

motion to assert an alternative ground for affirmance on appeal that was 

raised before the juvenile court.

In this case, the State was the prevailing party in the juvenile court 

because the court ultimately terminated parental rights to both M.W. 

and Z.W. The State also properly raised the grounds for termination 

under all three sections of Iowa Code section 232.116 as to both children 

before the juvenile court. Therefore, the State was not required to file a 

cross-appeal or a rule 1.904(2) motion in this case in order for the court 

of appeals or this court to consider whether the parental rights to Z.W. 

may be terminated under Iowa Code section 232.116(1)(h). The juvenile 

court concluded that “each of the statutory grounds . . . is supported by 

clear and convincing evidence” for both children. (Emphasis added.) We 

are therefore free to consider the ground for termination under 

232.116(1)(h) equally for both children.

B. Whether Termination is Appropriate. The juvenile court 

concluded that there was clear and convincing evidence to support the 

termination of parental rights under three provisions of Iowa Code 

section 232.116. We have already addressed the inapplicability of two of 

these code provisions—sections 232.116(1)(d) and (i)—earlier in this 
16

opinion. However, we still need to determine whether there is clear and 

convincing evidence to support the remaining ground for termination of 

the parental rights of R.W. to both M.W. and Z.W. under section 

232.116(1)(h). See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012) (“When 

the juvenile court terminates 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.”).

1. Underlying basis for CINA adjudication. On June 2, the juvenile 

court found that there was clear and convincing evidence that M.W. and 

Z.W. were CINA pursuant to Iowa Code sections 232.2(6)(b), .2(6)(c)(2), 

and .2(6)(n). Iowa Code section 232.2(6)(b) necessitates a finding that a 

child is a CINA when the “parent, guardian, other custodian, or other 

member of the household in which the child resides has physically 

abused or neglected the child, or is imminently likely to abuse or neglect 

the child.” Iowa Code § 232.2(6)(b). Section 232.2(6)(c)(2) provides that a 

child should be adjudicated a CINA when they have suffered or are 

imminently likely to suffer harmful effects due to “[t]he failure of the 

child’s parent, guardian, custodian, or other member of the household in 

which the child resides to exercise a reasonable degree of care in 

supervising the child.” Id. § 232.2(6)(c)(2). Section 232.2(6)(n) requires

the juvenile court to adjudicate a child as a CINA if their “parent’s or 

guardian’s mental capacity or condition, imprisonment, or drug or 

alcohol abuse results in the child not receiving adequate care.” Id.

§ 232.2(6)(n). Pursuant to the Iowa Rules of Appellate Procedure, a 

notice of appeal from an order adjudicating a child CINA must be filed 

within fifteen days of the filing of the order or judgment. Iowa R. App. P. 

6.101(1)(a). The order adjudicating M.W. and Z.W. as CINA was filed on 

June 2. R.W. did not timely appeal the order adjudicating the children 
17

as CINA, and thus the juvenile court’s adjudication order is conclusive. 

See A.M., 843 N.W.2d at 111 (treating the second element as established

after the child in question had been adjudicated CINA).

2. Section 232.116(1)(h) analysis. The juvenile court concluded 

that there were grounds for termination under Iowa Code section 

232.116(1)(h). This code section provides that the juvenile court may 

terminate parental rights if it finds that all four of the following 

circumstances have occurred:

(1) The child is three years of age or younger.

(2) The child has been adjudicated a child in need of 

assistance pursuant to section 232.96.

(3) The child has been removed from the physical 

custody of the child’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 cannot be returned to the custody of the child’s parents 

as provided in section 232.102[8] at the present time.

Iowa Code § 232.116(1)(h). The juvenile court found there was clear and 

convincing evidence on each of the above elements to warrant

termination for each of the children. The court of appeals agreed that 

each of the above elements had been met as to M.W., warranting 

termination. However, it failed to consider the same elements as to Z.W. 

and reversed termination as to Z.W. under the other two provisions of 

section 232.116.

Based on our de novo review of the record, we conclude there is 

clear and convincing evidence that each of the four requirements of Iowa 

8Iowa Code section 232.102 provides rules for how the juvenile court may 

transfer the legal custody of children, in addition to how and where children may be 

placed. Iowa Code § 232.102.

 
18

Code section 232.116(1)(h) have been met for both M.W. and Z.W., and 

the grounds for termination were proven. At the time of the termination 

hearing, M.W. was two years old, born on April 13, 2013. Z.W. was three 

years old, born on March 28, 2012. Both children were adjudicated 

CINA in June 2014. No timely appeal was filed from the CINA 

adjudication, which establishes element two. See A.M., 843 N.W.2d at

111 (treating the second element as established after the child in 

question had been adjudicated CINA). The children were removed from 

the physical custody of R.W. in April 2014. At the time of the 

termination hearing, the children had been out of the physical custody of 

R.W. for twelve consecutive months. The children have had no trial 

period at home with R.W.

Finally, there is clear and convincing evidence in the record that at 

the time of the termination hearing, the children could not be safely 

returned to the custody of R.W. In reaching this conclusion, we note 

that R.W. has never accepted responsibility for her actions in the death 

of L.W. or assumed any responsibility for the removal of M.W. and Z.W.

from her home. Rather, she chooses to place the responsibility and 

blame on M.D.W. Although R.W. has undergone substance abuse 

treatment and mental health evaluations, she continues to exhibit the 

same co-dependent behavior that led to her negative relationship with 

M.D.W. Immediately after leaving the abusive relationship with M.D.W., 

R.W. began a relationship with T.W., who has a history of child abuse 

and who threatened R.W. for attempting to set boundaries. This 

behavior demonstrates that R.W. continues to make decisions without 

thinking of the impact on her children.

Although R.W. has presented a clean apartment for her scheduled 

CPS visits, she has refused entry to the apartment for unscheduled 
19

visits, raising concerns about the normal cleanliness level of her home. 

Additionally, R.W. began working in April 2015. Although she did obtain 

employment, concerns remain about her ability to support herself and 

her children. Her employment began only one month before the 

termination hearing. More significantly, throughout the proceedings 

involving her children, R.W. provided little to no financial assistance for 

M.W., Z.W., or D.W. This delay in finding regular employment reflects 

her prior pattern of irresponsibility and lack of planning when it comes to 

her children.

The record reflects that R.W. was unable to adequately supervise 

all three children together during visitations and that M.W. and Z.W. 

exhibited destructive and worrisome behavior following visits. After 

supervised visitations, the children would bang their heads, scream, 

kick, have night terrors, bite, and sleepwalk. Further, although R.W. has 

requested increased visitation with her children, visits have never been 

able to progress to either semi-supervised or unsupervised due to the 

destructive behavior the children exhibited after their visits with R.W. 

The record supports the juvenile court’s conclusion that there was “no 

evidence to suggest that [R.W.] would do any better at parenting three 

small children at [the time of the termination order], or at any time in the 

foreseeable future, on her own.”

The juvenile court’s conclusion that the children cannot be safely 

returned to the custody of R.W. is also supported by the statements 

provided by the mental health care professionals and CPS workers 

associated with the case. One of the mental health providers concluded 

that R.W.’s “continued lack of normal maternal interest in [her children’s] 

care (nutrition, medical, safety, etc.) strongly suggests attributes 

resistant to change.” He thought that the prospect of R.W. reuniting with
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her children was “questionable.” CPS workers have noted that while 

R.W. “is doing all that is requested in a short time period, [she is] 

possibly not internalizing everything she is working on. [She is] possibly 

just going through the motions and checking things off on her to do list.”

Upon our de novo review, we conclude that there is clear and 

convincing evidence in the record that the children could not safely be 

returned to the custody of R.W. under Iowa Code section 232.102 at the 

time of the termination hearing. Therefore, we find there is clear and 

convincing evidence in the record that meets the requirements of Iowa 

Code section 232.116(1)(h). The State has proven this ground supports 

the termination of parental rights to M.W. and Z.W.

C. Best-Interest Analysis. Once we have established that at least 

one ground for termination under section 232.116(1) exists, the next step 

of our analysis is to evaluate whether the termination of parental rights 

would be in the best interest of the child under section 232.116(2). D.W., 

791 N.W.2d at 706–07. When we consider whether parental rights 

should be terminated, we “shall 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); see also D.W., 791 

N.W.2d at 708. In making this determination, we may consider a 

number of factors. D.W., 791 N.W.2d at 708. We may consider 

“[w]hether the parent’s ability to provide [for] the needs of the child is 

affected by the parent’s mental capacity or mental condition or the 

parent’s imprisonment for a felony.” Iowa Code § 232.116(2)(a). If the 

children have been placed in foster care, we consider the extent to which 

they have become integrated into that family. Id. § 232.116(2)(b). For 

integration, we look at how long the children have been living with the 
21

foster family, how continuity would affect the children, and the 

preference of the children if they are capable of expressing a preference. 

Id. § 232.116(2)(b)(1)–(2). Last, we may also consider statements of foster 

parents or relatives with whom the children have been placed. Id.

§ 232.116(2)(c). We also note that when we evaluate whether termination 

is in the child’s best interest, 

[i]t 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.

A.M., 843 N.W.2d at 112 (quoting In re P.L., 778 N.W.2d 33, 41 (Iowa 

2010)).

Both M.W. and Z.W. have continued to reside with their maternal 

aunt and her spouse since February 2015. Both children have 

continued to meet proper developmental milestones. The juvenile court 

found that their aunt and her spouse are able to provide for their 

physical, emotional, and financial needs. The aunt and her spouse also 

currently have physical custody of their younger half-sibling, D.W. The 

children have adjusted well to the home. The juvenile court found that 

the children were well integrated into the home. See Iowa Code 

§ 232.116(2)(b). Further, the aunt and her spouse have expressed the 

desire to adopt both M.W. and Z.W. if parental rights are terminated. 

See id. § 232.116(2)(c). Upon our de novo review, we conclude that the 

considerations in section 232.116(2) support the termination of parental 

rights of R.W. to both M.W. and Z.W.

D. Exceptions. Once we have established that the termination of 

parental rights is in the children’s best interests, the last step of our 

analysis is to determine whether any exceptions in section 232.116(3) 
22

apply to preclude the termination. D.W., 791 N.W.2d at 707. There are 

five exceptions to a finding of termination:

a. A relative has legal custody of the child.

b. The child is over ten years of age and objects to the 

termination.

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.

d. It is necessary to place the child in a hospital, 

facility, or institution for care and treatment and the 

continuation of the parent-child relationship is not 

preventing a permanent family placement for the child.

e. The absence of a parent is due to the parent’s 

admission or commitment to any institution, hospital, or 

health facility or due to active service in the state or federal 

armed forces.

Iowa Code § 232.116(3). While a finding of any of these factors allows us 

to choose not to terminate parental rights, “[t]he factors weighing against 

termination in section 232.116(3) are permissive, not mandatory.” A.M., 

843 N.W.2d at 113 (quoting In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. 

App. 2011)). We may use our discretion, “based on the unique 

circumstances of each case and the best interests of the child, whether to 

apply the factors in this section to save the parent–child relationship.” 

Id. (quoting D.S., 806 N.W.2d at 475).

We first note that while there is certainly some bond between R.W.

and her children, the two children have remained outside of her care 

since their original removal almost two years ago. The children are 

young—ages two and three. The children act out negatively following 

their visitation with R.W. For more than one year, R.W. has not 

progressed beyond more than limited, supervised visits with the children.

Even some of these supervised visitations become overwhelming to R.W. 
23

The children are adoptable, and their maternal aunt and her spouse

have expressed the desire to adopt both M.W. and Z.W. The children 

have achieved stability in their aunt’s home and continue to meet 

developmental milestones. On our de novo review, we decline to find an 

exception under section 232.116(3) renders termination improper.

IV. Conclusion.

We conclude that there is clear and convincing evidence to support 

the termination of parental rights under Iowa Code section 232.116(1)(h)

as to both M.W. and Z.W. Additionally, termination of the parental rights 

of R.W. is in the best interests of the children. Finally, we decline to 

apply any of the exceptions precluding termination.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND 

REVERSED IN PART; JUVENILE COURT JUDGMENT AFFIRMED.