IN THE COURT OF APPEALS OF IOWA
No. 22

- 0046 Filed March 30, 2022

IN THE INTEREST OF J.J., C.J., and E.J. , Minor Children, G.J., Mother, Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Linn County, Cynthia S. Finley , District Associate Judge.

A mother appeals the termination of her parental rights. AFFIRMED

.

Robert W. Davison, Cedar Rapids, for appellant mother. Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney General, for appellee State.
Robin L. O’Brien Licht, Cedar Rapids, attorney and guardian ad litem for minor children.

Considered by Tabor, P .J. , and Greer and Ahlers, JJ

.2

TABOR , Presiding Judge

. A mother, G iada , appeals the termination of her parental relationship with fourteen

- year - old J.J. , thirteen

- year - old C.J. , and ten

- year - old E.J. 1 S he argues (1) the State failed to establish a basis for termination ; (2) termination was not i n th e children’s best interests, (3) termination was improper because of the bond that she and an older brother share with these children ; and (4) she would be ready to parent after a six

- month extension

. Because the State proved its case and
termination is the best path forward , we affirm

. 2
I. Facts and Prior Proceedings The Iowa Department of Human Services (DHS) became involved with this family most recently in late 2020. 3 In mid

- October, the DHS received a report that Giada was abusing methamphetamine , cocaine, and heroin in her Cedar Rapids
home. 4 Less than a week later, police executed a search warrant for Lee’s
Knoxville home where they found marijuana, methamphetamine, and drug paraphernalia. At the sc ene, Lee admitted he was “ selling a bit.” He was later charged with possession with intent to distribute and child endangerment.

1 The juvenile court also terminated the parental rights of their father, Lee. He does not appeal. The termination order did not involve their older son, Co.J. 2 Termination reviews are de novo. In re M.D. , 921 N.W.2d 229, 232 (Iowa 2018). W e give weight to the juvenile court’s fact findings, but they do not bind us. Id. 3 The DHS had previous interactions with this family. In the past, the D HS investigated allegations of s ubstance abuse, domestic violence, and inadequate supervision

. 4 Giada and Lee were then living apart . At first, all four children lived with Lee. But in short order the two youngest, C.J. and E.J., returned to Giada. Soon after J.J. returned too

. By October 2020, Co.J. lived with Lee and the three younger children lived with Giada.3

In early November, the DHS drug tested all four children . Each of the ir hair samples tested positive for methamphetamine , an d Co.J.’s and J.J.’s hair tested positive for THC. 5 Around this time, the children were adjudicated in need of assistance (CINA) and removed from their parents’ homes. Following their removal, the four children were separated

— Co.J. in a residential treat ment program, J.J. and E.J. with one foster family, and C.J. with
another. C o.J. didn’t do well in his placement, regularly runnin g away

. 6 But the younger three children fared better. Their foster families have provided stable home environment s , addressed the children’s mental health concerns, and

ensure d regular visits among the siblings. J.J., C.J., and E.J. have all asked to be adopted and their foster parents are open to adoption. As for Giada, she has struggled since the children were remov ed. For most of the yearlong removal period, she lacked stable housing, employment, and transportation. She did not engage with mental

- health services, often missing therapy sessions and medication appointments. And she did not comply with substance

- abu se testing or treatment recommendations

. She provided only one
test of the roughly fifty offered and was discharged from a substance abuse program for nonattendance. I n August 2021, she was charged with possession of

5 At the termination hearing, Giada denied exposing the children to drugs. She believes the children were exposed while li ving with Lee, noting that hair

- based testing has a long detection window. Lee also denied using drugs around his children

. 6 Because his placement was not working out and he was nearly eighteen, t he DHS dismiss ed Co. J.’s CINA case in November 2021 . Since then, he has been living with Giada.4

drug paraphernalia. 7 On a positive n ote , Giada regularly attended the weekly, fully

- supervised visitation sessions

. In September 2021, the State moved to terminate parental rights. After a December hearing, t he juvenile court approved terminat ion. Giada now appeals.
II. Analysis Our review f ollows a three

- step process. In re D.W. , 791 N.W.2d 703, 706 (Iowa 2010). First we look for a termination ground. Iowa Code § 232.116(1) (202 1 ) . Then we consider the children’s best interests. Id. § 232.116(2). And finally, we examine factors weighing against termination. Id. § 232.116(3).
A. Termination Basis The court terminated parental rights under Iowa Code section 232.116 (2021) , paragraph (f)

. Under that paragraph, a court may terminate rights if:

(1) T he child is four years of age or older. (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 twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child’s parents as provid ed in section 232.102. Id. § 232.116(1)(f). Giada takes aim at the fourth element, arguing “there are minimal safety

concerns , ” and emphasizes her recent progress toward reunification . The State offers two rebuttal s

. Procedurally , it contests error preservation, arguing Giada

7 The criminal complaint alleged her possession of a “glass pipe with burnt residue consistent with methamphetamine.” At the December termination trial, Giada testified that the pipe was not hers.5

only asked the juvenile court for more time to reunify . On the merits, the State highlights Giada’s non

- engagement with treatment as evidence that the children could not be returned safely. Error preservati on first

— we agree with the State. Giada’s focus during trial was twofold, but neither challenged the ground for termination. As the State presented its case , Giada’s attorney homed in on the children’s best interests. 8 And while presenting her case, Gia da pointed to her recent progress and asked for six more months to prove she could safely care for the children

. Even if Giada had preserved error, we see clear and convincing evidence for termination. See id. § 232.116(1)(f)(4). The children were remov ed because of drug exposure . Despite this concern, Giada did not acknowledge a problem with substance abuse. During trial, she denied abusing methamphetamine , cocaine, or heroin

. 9 Instead, she claimed her only vice was alcohol. She tried to shift blame , arguing Lee was responsible for the children’s positive drug tests and insisting she should n’t “be held accountable for his actions

. ” So , having denied the problem’s existence, Giada failed to engage with DHS services. She was in consistent with both mental health and substance abuse treatment. And, with one exception, she missed all drug testing. See In re C.F. , No. 20

- 1067, 2020 WL

8 For instance, while cross examining the DHS worker , Giada’s attorney ask ed “regardless of whether the grounds for termination exist, the court also has to find that termination is in the kids’ best interest, correct?” 9 At first, Giada argued that her family, not her, had a history of meth amphetamine use

. When pressed , she conc eded she did have a personal history, but it was ancient history, twenty years having passed since her last usage

. But her testimony is contradicted by medical record s . According to an April 2021 evaluation, Giada told her doctor she “had used meth for three months straight.”6

6482073, at *1 (Iowa Ct. App. Nov. 4, 2020) (“We presume these missed drug tests would have resulted in positive test s.” (citation omitted))

. True, Giada logged belated progress by s ecuring employ ment and stable housing a few weeks before the termination hearing. 10 But those measures did not erase the months of inaction on other safety concerns.
B. Best Interests Next, we consider the children’s best interests. Giada believes termination
does no t serve their long

- term needs. Support ing this claim, she notes the close bond between herself and these three children , as well as t he ir relationship with older brother Co.J. 11 Statutory factors guide the best

- interests analysis. See, e.g. , In re P.L. , 778 N.W.2d 33, 35 (Iowa 2010). We give primary consideration to the children’s safety, to the best placement for furthering their long

- term nurturing and growth, and to their ph ysical, mental, and e motional condition and needs. Iowa Code § 232.116(2). For a child placed in family foster care, this consideration may include “ whether the child has become integrated into the foster family to the extent that the child ’ s familial identity is with the foster family, and whether the foster family is able and willing to permanently integrate the child into the foster family.” Id. § 232

. 116 ( 2 )(b).

10 We discuss Giada’s recent progress in depth below. 11 In a common shortcut, Giada’s petition treats the parent

- child close

- bond exception as a best

- interests argument under Iowa Code section 232.116(2). Because close bonds implicate a permissive exception under Iowa Code section 232.116(3), we consider that argument under a separ ate subheading.7
These principles in mind, we believe termination is in the children’s best interests. The children have been removed from their parents’ custody for over a year. Since then, they have thrived with their foster families. C.J. , the middle child, loves his foster parents and has expressed his desire to live with them “tomorrow, next year, [or] until he was eighteen.” Like C.J., J.J. and E.J. are doing well in their placement. Their caseworker noted that they’re “like two different kids” since moving in wi th their foster parents . What’s more, all three children have made their desire for adoption clear and their foster families want to adopt them. True, termination would impact the siblings’ relationship s with each other, cementing s eparate living arrange ments. But, on balance, we think termination better serves the ir needs. See In re J.E. , 723 N.W.2d 793, 800 (Iowa 2006) (noting a preference to keep siblings together , but confirming the preference is not absolute because the ultimate concern is the best interests of the child). Both foster families try to minimize that separation

. Indeed, they arrange several visits per week and sometimes do overnights. We apprecia te Giada ’s concerns that Co.J. has not been included in these visits. But we must consider the younger children’s best interests. 12 And we believe the y are better served by permanency. I ndeed, the children seem to agree. According to his caseworker, C.J . wants to be adopted by his foster parents even though that “ would mean he wouldn’t be living with his siblings.”

12 What’s more, Co.J is only a few months from adulthood. So his relationship with his younger siblings would no longer depend on preserving Giada’s parental rights.8

C. Permissive F actor Giada also cites her close relationship with the children in arguing against termination

. Giada must show, by clear and c onvincing evidence, that termination would harm her children. Iowa Code § 232.116(3)(c). That harm must outweigh the concerns over her inability to care for the m

. See D.W. , 791 N.W.2d at 709. The clos e - bond exception is permissive, not mandatory, so we afford juvenile courts considerable discretion. See In re A.M. , 843 N.W.2d 100, 113 (Iowa 2014). Giada did not meet her burden, failing to present clear and convincing evidence of the detriment to her children. We have no doubt that she shares a
str ong bond with the children. But all three have asked to be adopted and understand the consequences of termination and adoption.
D. Deferred Permanency Finally, based on her recent progress, Giada asks for more time to work toward reunification. 13 A court m ay , at its discretion, defer permanency if it can “enumerate the specific factors, conditions, or expected behavior al changes which comprise the basis for the determination that the need for removal of the child from the child’s home will no longer exist a t the end of the additional six

- month period.” Iowa Code § 232.104(2)(b); see also A.M. , 843 N.W.2d at 113. No question , Giada has made strides . She has found stable housing. She is holding down a job. And she’s been providing a home for Co.J. for about a

13 T he State argu es this issue is waived because it was “only mentioned in passing in [the] petition on appeal.” But petitions on appeal are, by design, more cursory than traditional briefing . And despite the quick analysis, Giada references pertinent facts and relevant authority. See Iowa R. App. P. 6.903(2) (discussing w aiver standard). So we proceed to the merits.9

month. Although we credit these steps, we believe the juvenile court was justified in denying the extension. Giada’s progress came late in the game

— about thirteen months into the proceedings and just a few weeks b efore the termination h earing. In fact, a month before the hearing, Lee suggested Giada couldn’t care for the
children because she was un stable. When faced with twelve months of Giada’s

non - engagement, the juvenile court declined to speculate from a few weeks of buzzer

- beating improvements

. See In re J.H. , 952 N.W.2d 157, 171 (Iowa 2020). Because patience with Giada can lead to “intolerable har dship” to the children, we agree with the court’s decision. See In re E.K. , 568 N.W.2d 829, 831 (Iowa Ct. App. 1997). As for Co.J , y es, he moved in with Giada

. But it was his action , not Giada’s,
that prompted the reunion

. Co.J. regularly fled from the treatment center , at times choosing to live on the streets. Becaus e he was “essentially living an independent life” and only months from adulthood, the DHS felt that “a roof over his head [is]
better than him running the streets.” Preferring the lesser of two evils, the State dismissed his CINA case.
III. Conclusion
Because the State me t its burden of p roof and termination offers the best option for ensuring a secure future for the children, we affirm.
AFFIRMED.