IN THE COURT OF APPEALS OF IOWA

No. 20-1032

Filed November 4, 2020

IN THE INTEREST OF A.B. and I.B.,

Minor Children,

Y.B., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Mitchell County, Karen Kaufman 

Salic, District Associate Judge.

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

AFFIRMED.

William P. Baresel of Prichard Law Office, PC, Charles City, for appellant 

mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant 

Attorney General, for appellee State.

Patrick J. Rourick, Saint Ansgar, attorney and guardian ad litem for minor 

children.

Considered by Vaitheswaran, P.J., and Doyle and Ahlers, JJ.
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DOYLE, Judge.

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

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

this family in 2016, when the State charged the mother with child endangerment 

for leaving five-month-old I.B. alone in the home to go to a bar. The DHS’s most 

recent involvement with the family began in December 2017 when the State 

charged the father with committing felony domestic abuse assault against the 

mother, who was pregnant with A.B. When domestic violence continued in the 

home after A.B.’s birth, the juvenile court adjudicated both children to be in need 

of assistance (CINA). The court initially placed the children in the father’s care but 

removed the children six months later due to the parents’ ongoing interaction and 

the domestic violence that resulted from it. When the mother failed to improve 

significantly after nearly two years of DHS involvement, the State petitioned to 

terminate parental rights. 

The juvenile court terminated the mother’s parental rights to I.B. under Iowa 

Code section 232.116(1)(f) (2019) and to A.B. under section 232.116(1)(h). 

Although paragraphs (f) and (h) differ with regard to the age of the child and the 

length of removal, the final requirement of each—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—is the same. See Iowa Code 

§ 232.116(1)(f)(4), (h)(4). To satisfy this element, the State must present clear and 

convincing evidence to show that the child would be exposed to adjudicatory harm 

if returned to the parent’s care at the time of the termination hearing. See In re 

D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the term “at the present time” 
3

to mean to mean “at the time of the termination hearing”); In re M.S., 889 N.W.2d

675, 680 (Iowa Ct. App. 2016) (noting a child cannot be returned to the custody of 

the parent if doing so would expose the child to any harm amounting to a new 

CINA adjudication). 

The mother claims the children are not at risk of adjudicatory harm if 

returned to her care because she has never abused or neglected them. She 

complains that the court instead focused on “a series of small incidents over the 

course of more than 20 months.” But the record shows that the mother’s ongoing 

physical- and mental-health issues impair her ability to ensure the children’s safety. 

The mother’s visitation remained supervised two years after the CINA adjudication, 

and the evidence shows that the children would be at risk of harm without this 

supervision. In its termination order, the juvenile court quoted from the DHS’s 

termination report:

[The mother] has repeatedly demonstrated that while she can have 

meaningful interactions with her children, she has difficulty meeting 

their needs when she is parenting alone for short periods of time, and 

this is when interactions are supervised. [The mother] has not been 

able to progress beyond supervised interactions, and the children do 

not have protective capacities of their own, so are fully reliant on their 

adult caretakers to meet their needs. [The mother] believes that she 

needs help to meet her own basic needs, which makes it unrealistic 

to suggest she is capable at this time of meeting the needs of her 

young sons. [The mother] may be making some progress, but will 

likely need a substantial period of time devoted to her own mental 

and physical health needs before she is able to focus energy outside 

of herself.

The evidence shows that the children would be at risk of adjudicatory harm if 

returned to the mother’s care. 

The mother also disputes that termination is in the children’s best interests. 

See Iowa Code § 232.116(2); D.W., 791 N.W.2d at 706-07 (requiring that the court 
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“apply the best-interest framework set out in section 232.116(2) to decide if the 

grounds for termination should result in a termination of parental rights”). In 

determining best interests, our primary considerations are “the child’s safety,” “the 

best placement for furthering the long-term nurturing and growth of the child,” and 

“the physical, mental, and emotional condition and needs of the child.” In re P.L., 

778 N.W.2d 33, 37 (Iowa 2010) (quoting Iowa Code § 232.116(2)). The “defining 

elements” we consider in making this determination are the child’s safety and 

“need for a permanent home.” In re H.S., 805 N.W.2d 737, 748 (Iowa 2011) 

(citation omitted). 

The mother is unable to provide the safety and permanency needed. As 

we have already determined, the children are at risk of harm if returned to the 

mother’s care. And the record shows the mother is unable to provide a stable and 

permanent home. The mother did not work in the two years following the CINA 

adjudication began and, as a result of her limited financial means, frequently lost 

housing. Concerns persist regarding the mother’s ability to provide the children 

with a stable and consistent routine and discipline. As the juvenile court noted, the 

mother undoubtedly loves the children. But “basic safety and supervision 

concerns” persist some thirty-two months after the DHS first began providing 

services such that her visits with the children require supervision. When we 

compare the length of time the mother has been given to gain insight into these 

concerns and the skills to correct them with the limited improvement she has made, 

we agree that termination is in the children’s best interests. 

Finally, the mother seeks to avoid termination under Iowa Code section 

232.116(3), which provides that the court “need not terminate the relationship 
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between the parent and child” under certain circumstances. Application of section 

232.116(3) is permissive rather than mandatory, and it depends on the facts of 

each case and the children’s best interests. See In re A.S., 906 N.W.2d 467, 475

(Iowa 2018). The mother bears the burden of establishing an exception to 

termination. See id. at 476.

The mother asks us not to terminate parental rights because the children 

are in the care of a relative. But the children are not in the legal custody of a 

relative, as is required under section 232.116(3)(a). She also claims that 

termination would be detrimental to the children. See Iowa Code § 232.116(3)(c) 

(providing that the court need not terminate parental rights if “clear and convincing 

evidence” shows “termination would be detrimental to the child at the time due to 

the closeness of the parent-child relationship”). The record does not support such 

a finding. As the juvenile court noted, any sadness the termination may cause the 

children does not outweigh the long-term hardship and neglect they would likely 

suffer in the mother’s care. Termination is in the children’s best interests. 

AFFIRMED.

Ahlers, J., concurs; Vaitheswaran, P.J., dissents.
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VAITHESWARAN, Judge (dissenting).

I respectfully dissent. The department of human services intervened in 

January 2018, when the father assaulted the mother in front of one of the children. 

The mother was pregnant with their second child. The father continued to 

physically and mentally abuse the mother over the ensuing two years. 

The department reported that the father “punched [the mother] in the butt 

causing her back injury,” which led to having the children exchanged from one 

parent to the other in public places. Later the same year, the department reported 

that the father asked the mother to leave the home and, when she did not, he 

“forc[ed] her to leave by grabbing her and pulling her out of the home.” The mother 

“was observed to have bruising on her jawline.” A year later, the department 

reported that the mother recorded the father “hollering at her in a manner that was 

completely inappropriate.” Following that incident, the mother committed to 

divorcing her husband.

At the time of the termination hearing, the mother (1) had her own apartment 

and had spoken to the landlord about upgrading to a two- or three-bedroom 

apartment if the children were returned to her care; (2) had secured employment

and was receiving job training; (3) had no alcohol or drug dependency issues; 

(4) testified that the State dismissed a child-endangerment charge; (5) testified to 

an improvement in a yet-to-be diagnosed condition involving pain in her bones that 

previously limited her ability to interact with the children; (6) had scheduled an 

appointment for an assessment of her physical condition and testified to seeing a 

chiropractor several times; and (7) was meeting with a counselor once a week and 

taking medication to treat depression. The State did not dispute these assertions.
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A domestic abuse program supervisor who had worked with the mother for 

several years reported she had “no concerns about [the mother’s] mental health, 

ability to get around physically and care for herself[,] and her children or her having 

any desire to rekindle a relationship with the” father. 

As for the department’s concerns about the mother’s supervision of the 

children, the service provider who supervised visits reported that the mother 

heeded her advice to take both children to the bathroom when one needed to go, 

prohibit the children from playing with toys that presented a choking hazard, and 

hold the children’s hands when outside. The service provider also reported that 

the mother had “good interactions with the kids.” And, shortly after the termination 

petition was filed, the service provider reported “no concerns of physical abuse, 

emotional abuse, sexual abuse, or neglect toward” the children. Finally, in the 

reporting period preceding the termination hearing, the service provider reported 

the mother was having supervised visits with the children in her home, which was 

“furnished appropriately and was clean.”

Unfortunately, the COVID-19 pandemic prevented the mother from 

demonstrating her independent parenting skills on a sustained basis, with many 

visits being held by video. Because the mother made marked improvements in 

her compliance with department expectations notwithstanding the pandemic, I 

would conclude termination was not in the children’s best interests and I would 

reverse the termination decision and remand for further proceedings.