IN THE COURT OF APPEALS OF IOWA

No. 22-1816

Filed May 10, 2023

IN THE INTEREST OF B.B.,

Minor Child,

A.D., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Brent Pattison, District 

Associate Judge.

A mother appeals the termination of her parental rights to her five-year-old 

son. AFFIRMED. 

Lori M. Holm, Des Moines, for appellant mother.

Brenna Bird, Attorney General, and Ellen Ramsey-Kacena (until 

withdrawal) and Mary A. Triick, Assistant Attorneys General, for appellee State.

Lynn Vogan, Des Moines, attorney and guardian ad litem for minor child.

Considered by Tabor, P.J., and Schumacher and Ahlers, JJ.
2

SCHUMACHER, Judge.

A mother appeals the termination of her parental rights. She claims the 

State did not establish a ground for termination. She also claims termination is not 

in the child’s best interests, and that this court should decline to terminate her rights 

due to the close bond she shares with the child. We find the State established a 

ground for termination by clear and convincing evidence. Termination is in the 

child’s best interests. And, like the juvenile court, we decline to apply an exception

to preclude termination of the mother’s rights. We affirm. 

I. Background Facts & Proceedings

This is a case about B.B., a five year-old boy who has been under the 

jurisdiction of the juvenile court for all but seven months of his life. His mother

gave birth to B.B. in 2017.1 She and B.B.’s father ended their relationship about 

four months later. Allegations of domestic violence and substance abuse brought 

the family to the attention of the Iowa Department of Human Services.2 In August 

2017, the juvenile court adjudicated B.B. as a child in need of assistance (CINA). 

That CINA case closed in July 2020 with a bridge order granting sole custody of 

B.B. to the mother.

3

 

1 The mother has another child she placed out of state when the mother was 

dealing with a heroin addiction. That child is not part of these proceedings. 

2 The department is now known as the Iowa Department of Health and Human 

Services.

3 The court placed B.B. in the mother’s custody because of the father’s alcohol 

abuse and his minimal contact with B.B. And the mother tested negative for drugs 

over the course of the first CINA case. In May 2020, the mother married an 

individual who had a criminal history, including methamphetamine manufacturing. 

They divorced in April 2022.
3

But placement of the child with the mother was short-lived. Three months 

after the closure of the CINA case, West Des Moines police encountered the 

mother and then three-year-old B.B in a hotel parking lot. The two were in a 

running car at night with the headlights off. When the mother opened the car door, 

officers smelled marijuana. Based on that smell, they searched the car and found 

a glass pipe and marijuana. Officers also searched the mother’s purse and found 

a syringe. The mother was arrested and B.B. was placed outside the mother’s 

home under a safety plan. 

After the mother’s release from jail the next day, she spoke with the 

department.4 The mother agreed to continue the safety plan, with the individual 

with whom B.B. was placed serving as B.B.’s primary caregiver and supervising

the mother’s interactions with B.B. The mother also shared her drug history with 

the department—including a heroin addiction for which she successfully sought 

treatment in 2016. In later discussions, she agreed to undergo drug screening 

because of the nature of her arrest.

But the mother failed to follow through with that testing. Days later, she took 

B.B. from his placement without telling the department. The case worker called 

many times but could not get in touch with her.5 The mother evaded the 

4 The mother said she and B.B. were staying at the hotel to give the placement a 

break. She also asserted that the drugs and paraphernalia were not hers and that 

she did not know that contraband was in the borrowed car. The juvenile court 

found these assertions lacking in credibility because the mother had been arrested 

before in the same car and police found the syringe in her purse. 

5 The mother did contact her case worker once in November by email. She told 

the worker that her phone was broken, that she was sick, and she was selfquarantining. She agreed to reach out once she was feeling better, but never 

followed through. 
4

department until December 2020 when workers obtained her new address. Once 

workers confronted the mother at her home, she admitted knowing that the 

department had been trying to contact her “but [she] was just busy.” She again 

agreed to drug testing and to undergo a substance-abuse evaluation. The mother

asked the department to place B.B. with her ex-boyfriend, Bradley.

The mother evaded drug testing again. She did obtain a substance-abuse 

evaluation but she reported no substance use in the last five years—despite her 

recent arrest and her guilty plea to a drug possession charge in 2018. On top of 

that, the department had trouble contacting her or Bradley. As a result, the 

department sought a temporary removal order.

In January 2021, the court ordered B.B. be removed from the mother’s

custody. Two months later, the court again adjudicated B.B. as a CINA because 

of the mother’s unaddressed substance abuse and her reluctance to work with the 

department.6 The mother again requested B.B. be placed in Bradley’s care. But 

the department placed the child in foster care because Bradley had a criminal 

history.7 The court found that the mother needed “to address the combination of 

substance abuse, mental health, and relationship issues that lead to unsafe 

situations for [B.B.]” And the court ordered her to comply with the department’s 

directives for drug screens and therapy referrals.

6 The court was also concerned about the mother’s relationship with her husband, 

given his arrest warrant and criminal history. The mother claimed that they were 

separated by the date of the CINA hearing. 

7 Bradley testified at the termination trial that all of his criminal offenses occurred 

more than a decade earlier, explaining he had two domestic abuse convictions and 

a third-degree attempted burglary in 2002 and a methamphetamine charge in 

2008.
5

The department’s primary concern revolved around the mother’s substance 

abuse. The mother failed to comply with drug testing throughout these 

proceedings. When she did participate in testing, she tested positive for 

methamphetamine, including in tests conducted in April and June 2022. She has 

only had one drug test come back negative for illegal substances. The mother 

contends her only use of methamphetamine occurred in July 2022, suggesting the 

other drugs tests were false positives caused by environmental contamination. 

The juvenile court did not find that assertion credible. 

The mother has failed to engage in substance-abuse treatment to address 

the department’s concerns. She obtained a substance-abuse evaluation in spring 

2022 that recommended extensive outpatient therapy, but by June the mother 

admitted she had not attended recently. She obtained another substance-abuse 

evaluation in July. She had not yet started treatment by the termination hearing 

but acknowledged she could have done so. 

Despite the mother’s failure to meaningfully address her substance-abuse 

issues, she has made some progress in other aspects of the department’s 

recommendations. Her individual therapist and B.B.’s therapist agreed that the 

mother consistently attended appointments. She appeared for visits with B.B., and

planned fun activities for her and the child. She did not present behavioral 

indicators of drug use during those visits. The child’s therapist, based only on what 

was observed during therapy, recommended increased visitation from the existing 

visitation schedule that occurred twice a week and were fully supervised. Her 

recommendation was qualified though given the mother’s continued use of illegal 

substances. 
6

B.B. has remained in the same foster placement since January 2021. The 

placement includes two other children. B.B. has grown close to his foster mother 

and foster brother. Indeed, B.B.’s therapist indicated that losing contact with the 

family would be “devastating” for B.B. The mother expressed concerns at the 

termination hearing that B.B.’s behavior had been regressing, including “baby-talk” 

and being clingy to the mother. That said, B.B.’s therapist indicated in August 2022 

that B.B. “has become significantly less aggressive and he is now exhibiting calm 

and nurturing play on a consistent basis.”

The State petitioned to terminate the mother’s parental rights in July 2022. 

Following the termination hearing—during which, for the first time, the mother 

acknowledged her drug use, albeit only conceding to the use of methamphetamine 

in July 2022—the court terminated the mother’s parental rights pursuant to Iowa 

Code section 232.116(1)(f) (2022).

8

 The mother appeals. 

II. Standard of Review

We review the termination of parental rights de novo. In re A.B., 815 N.W.2d 

764, 773 (Iowa 2012). “We give weight to the juvenile court’s factual findings, 

especially when considering the credibility of witnesses, but we are not bound by 

them.” Id. (citation omitted). Our overriding consideration is the best interests of 

the child. Iowa R. App. P. 6.904(3)(o). 

III. Discussion

The mother claims the State failed to establish a ground for termination 

under section 232.116(1). She also contends termination is not in B.B.’s best 

8 B.B.’s father’s parental rights were also terminated. He does not appeal. 
7

interests. And she asks this court to apply an exception to termination based on 

her close bond with B.B. 

A. Ground for Termination 

The mother asserts the State failed to establish a ground for termination. 

The court found the State established a ground under section 232.116(1)(f) by 

clear and convincing evidence.9 The mother only contests the last ground, that 

B.B. cannot be returned to her custody at the present time. “At the present time” 

means at the time of the termination hearing. See In re D.W., 791 N.W.2d 703, 

707 (Iowa 2010). 

We, like the juvenile court, find clear and convincing evidence B.B. cannot 

be returned to the mother at the present time. Despite the mother’s efforts at 

therapy and attending B.B.’s therapy, she has not addressed the concerns that 

caused B.B.’s removal in the first place: her use of illegal substances. The mother 

tested positive for methamphetamine repeatedly, and admitted to using 

methamphetamine as recently as July. Given her failure to attend substanceabuse treatment or otherwise meaningfully address her substance abuse, B.B., 

particularly at his young age, could not safely be returned to her custody at the 

9 That ground is met when the court finds all of the following:

(1) The 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 provided in section 232.102.
8

present time. See A.B., 815 N.W.2d at 776 (“We have long recognized that an 

unresolved, severe, and chronic drug addiction can render a parent unfit to raise 

children.”). 

B. Best Interests of the Child

The mother contests whether termination is in B.B.’s best interests. When 

examining this issue, 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). 

We find termination is in B.B.’s best interests. The mother has not 

addressed her drug use, only recently acknowledging it as an issue. The mother 

has already been granted a six-month extension. “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.” In re P.L. 778 N.W.2d 

33, 41 (Iowa 2010). B.B. has been involved in these proceedings for most of his 

young life—he deserves permanency. And he is integrated into the foster 

placement, which has indicated a willingness to adopt. Iowa Code

§ 232.116(2)(b). Termination is in his best interests. 

C. Close Parent-Child Bond

We begin with noting that although Iowa Code section 232.116(3) contains 

grounds which a juvenile court may invoke to preclude termination, such statutory 

grounds are permissive, not mandatory. 
9

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.” In re A.M.,

843 N.W.2d 100, 113 (Iowa 2014) (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).

In re M.W., 876 N.W.2d 212, 225 (Iowa 2016). In the single page of her briefing 

devoted to this exception, the mother asserts this court should decline to terminate 

her parental rights based on her close bond with B.B. See Iowa Code 

§ 232.116(3)(c). It is uncontested that the mother and B.B. appear to share a close 

bond. The juvenile court found: 

There was evidence of a close relationship between [B.B] and his 

mother. He is sad to leave visits. He looks forward to time with her. 

And his therapist can see a bond during sessions with [B.B.] and his 

mother. However, after considering [B.B’s] young age, the length of 

time he has been out of home, his strong relationship with his foster 

family, his therapist’s input, and his need for permanency, the Court 

finds there are no legal exceptions in Iowa Code Section 232.116(3) 

which would argue against termination.

We agree with this determination. On this record, any short-term sadness 

B.B. may experience does not outweigh the disadvantages the child will endure

because of the mother’s inability to provide for the child’s ongoing needs. In a 

similar case we stated:

Any sadness the child may experience because of termination 

does not overcome the likely long-term hardship and neglect the 

child will suffer if in the care of [the mother] . . . . The court simply 

cannot find that the parent-child relationship is so strong that it 

outweighs the need for termination. Despite any fondness or love 

between the [mother] and the child, it is not in the child’s best interest 

to wait any longer for permanency. 
10

In re A.W., No. 20-0834, 2020 WL 6157823, at *1 (Iowa Ct. App. Oct. 21, 2020). 

And as highlighted by B.B.’s therapist, although B.B. and his mother share a bond, 

he is in a placement that is “safe, secure, supportive, and consistent” and 

separation from the placement would be “devastating.” The court’s consideration 

must center on whether the child will be disadvantaged by termination, and 

“whether the disadvantage overcomes [the parent’s] inability to provide for [the 

child’s] developing needs.” See D.W., 791 N.W.2d at 709. 

By the time of the termination hearing, B.B.’s mother had not even begun 

substance-abuse treatment, twenty months after B.B.’s second removal from his 

mother’s custody. The same issues plagued the mother as in the first CINA 

proceeding—her failure to address her substance abuse. Particularly telling is that 

the mother continued to test positive for methamphetamine. She tested positive 

in April and June 2022. She failed to participate in a drug screen in August 2022, 

just a month before the termination hearing, and admitted to a relapse with use of 

methamphetamine the month before. And as concerning is the mother’s 

dishonesty regarding her use, even at the time of the termination hearing. The 

case manager noted at the termination hearing that any bond between the mother 

and the child should not outweigh termination:

B.B. is a very young child who needs a safe adult to meet his 

everyday needs, to provide him supervision, a safe home for him, to 

have his medical, educational needs met. The concern in this case 

is ongoing methamphetamine use, and if [B.B.] can’t be safe with his 

mom, unfortunately I think that overrides the positive relationship or 

the bond that [the child’s therapist] references in her letter because 

he can’t be safe with a parent that continues to use. He just doesn’t 

have protective capacities to help himself at that age.
11

The juvenile court addressed the bond at the termination hearing. As 

partially quoted by the dissent, the juvenile court stated: 

But even so, I mean, like today, on the day of the TPR hearing, after 

twenty months of the case, you’re not in a treatment program, and 

that worries me, but it’s also heartbreaking to see that when I know 

how much [B.B.] loves you, because I really believe that a hundred 

percent that you guys do—I’m like [the case manager]. I’m not an 

expert on bond, but I know when a little boy loves his mom, and I 

know that’s what’s going on here.

. . .

So, I mean, I think there’s no question in my mind that [B.B.] 

loves his parents and his parents love him, but I’m put in a very 

difficult position by how late in the game we are and I see a lot of 

missed opportunities; right? 

To her credit, the mother recognized during her testimony that what is best 

for her may not be best for B.B. The application of the urged exception to B.B.

likely destines B.B.’s future as one existing without permanency. He is just five 

years old. B.B. has been in limbo for most of his life. The mother’s interactions 

with B.B. remained supervised for an hour and a half twice a week at the 

termination hearing. She has not demonstrated that she can safely parent fulltime, even with a previously granted extension. B.B. has waited a long time—

nearly the entirety of his life—for his mother to be able to do so. He should not 

have to wait any longer. 

We do not “gamble with the children’s future” by asking them to 

continuously wait for a stable biological parent, particularly at such 

tender ages. In re D.W., 385 N.W.2d 570, 578 (Iowa 1986) (quoting 

In re Kester, 228 N.W.2d 107, 110 (Iowa 1975)); see also In re L.L.,

459 N.W.2d 489, 495 (Iowa 1990) (“Children simply cannot wait for 

responsible parenting. Parenting . . . must be constant, responsible, 

and reliable.”). 

D.W., 791 N.W.2d at 707.
12

On this record, the mother failed to present clear and convincing evidence 

that the child will be disadvantaged by termination and that any disadvantage 

overcomes the mother’s inability to provide for the child’s developing needs. We

agree with the juvenile court’s determination that a permissive exception pursuant 

to Iowa Code section 232.116(3) should not be applied to preclude termination. 

AFFIRMED. 

Ahlers, J., concurs; Tabor, P.J., dissents.
13

TABOR, Presiding Judge (dissenting)

“I’m not an expert on bond, but I know when a little boy loves his mom, and 

I know that’s what’s going on here.” This insight from the juvenile court is why we 

need not terminate Allison’s parental relationship with B.B. Since the inception of 

Iowa’s modern child welfare law, our legislature has made clear that proof of abuse 

or neglect is not the end of the analysis in a termination-of-parental-rights case. A 

court may preserve the family when a parent shows by clear and convincing 

evidence that termination would be detrimental to the child—at the time—because 

of the closeness of their bond. See Iowa Code § 232.116(3)(c) (2022);

§ 232.114(6)(c) (1979). Because Allison met that burden, I respectfully dissent. 

In deciding termination appeals, we must remember that “the relationship 

between parent and child is constitutionally protected.” In re M.S., 889 N.W.2d 

675, 678 (Iowa Ct. App. 2016) (quoting Quilloin v. Walcott, 434 U.S. 246, 255 

(1978)). “[T]he custody, care and nurture of the child reside first in the parents.” 

Prince v. Massachusetts, 321 U.S. 158, 166 (1944). “But the family itself is not 

beyond regulation in the public interest.” Id. Our state “has a duty to assure that 

every child within its borders receives proper care and treatment, and must 

intercede when parents fail to provide it.” In re A.M., 856 N.W.2d 365, 376 (Iowa 

2014). “Iowa Code chapter 232 codifies the balance our legislature has struck 

between these competing interests.” M.S., 889 N.W.2d at 678.

Allison’s petition on appeal follows the traditional three-step analysis for 

termination-of-parental-rights cases. See In re P.L., 778 N.W.2d 33, 39 (Iowa 

2010). First, in her view, the State did not offer clear and convincing evidence of 

a ground for termination under Iowa Code section 232.116(1). Second, she 
14

argues termination is not in B.B.’s best interests. And third, she contends that 

severing her parental rights would harm B.B. because of the closeness of the 

parent-child relationship. See Iowa Code § 232.116(3)(c); In re A.H., 950 N.W.2d 

27, 42 (Iowa Ct. App. 2020) (explaining that parents bear the burden to prove that 

a permissive exception applies to prevent termination). 

These three separate arguments require three distinct analyses. And I 

agree with the majority’s resolution of Allison’s first two arguments. But I disagree 

on the third step. Allison offered clear and convincing evidence that termination 

would harm B.B. because of the closeness of their relationship. See Iowa Code 

§ 232.116(3)(c). That close-relationship exception dates back to the adoption of 

our modern termination law. 1978 Iowa Acts ch. 1088, § 65. Given its primordial 

nature, we can better understand its effect on today’s proceedings by tracing the 

history and text. 

I. History and Text of the Close-Relationship Exception 

Iowa Code chapter 600A used to be the exclusive method for terminating 

parental rights. Iowa Code § 600A.3 (1977). It contained seven grounds for 

termination. Id. § 600A.8. But no permissive exceptions comparable to those now 

in section 232.116(3). After deciding that statutory grounds were met, courts still 

had to “determine that the termination would benefit the children.” See In re B.L.A., 

357 N.W.2d 20, 23 (Iowa 1984) (applying section 600A.1 which described the 

“welfare of the child” as the “paramount consideration in interpreting this 
15

chapter”).10 Problem was, the statute provided no guidance on what factors to 

weigh in deciding what was in a child’s best interest. 

Before the legislature revised our juvenile justice statutes, a leading scholar 

voiced concerns about existing state standards for terminating parental rights—

including Iowa’s regime. Michael S. Wald, State Intervention on Behalf of 

“Neglected” Children: Standards for Removal of Children from Their Homes, 

Monitoring the Status of Children in Foster Care, and Termination of Parental 

Rights, 28 Stan. L. Rev. 623, 689 n.261 (1976) [hereinafter Wald] (asserting that 

“courts have ordered termination in cases where preservation of the family was 

both possible and warranted” and citing Iowa as example). To address those 

concerns, Professor Wald proposed exceptions to bypass termination in certain 

situations. Wald, at 706; see P.L., 778 N.W.2d at 36 (referring to Wald’s proposals 

as “the Model Child Placement Code”). 

Professor Wald identified four situations when an exception to termination 

should apply. Wald, at 696. The first situation was when “[t]ermination would be 

seriously detrimental to the child due to the strength of the parent-child 

relationship.” Id. at 696.11 Wald noted that “some children in foster care retain 

very strong ties to their natural parents” to the point that “they refuse to accept 

anyone in place of their own parents.” Id. at 696−97. In his view, “termination in 

such situations is likely to be harmful to the child.” Id. at 697.

10 This section also stated that “the interests of the parents of this child . . . shall 

be given due consideration in this interpretation.” Id. § 600A.1. 

11 The other three situations included (2) children placed with relatives who are 

willing to provide permanent care but do not wish to adopt; (3) children who need 

special treatment; and (4) permanent family placement is unavailable or 

undesirable. Id. at 696–99. 
16

Two years after Professor Wald’s article, our legislature adopted a new 

framework for terminating parental rights for children in need of assistance under 

Iowa Code chapter 232. 1978 Iowa Acts ch. 1088 §§ 60–67 (codified as amended 

at Iowa Code § 232.109–.120). This statutory scheme tracked Professor Wald’s 

model child placement code. P.L., 778 N.W.2d at 36. Chapter 232 then contained 

five grounds for termination. See § 232.114(1)–(5) (1979). And courts continued 

to apply a best-interests analysis. See In re Dameron, 306 N.W.2d 743, 747 (Iowa 

1981). But the statute also contained five new exceptions. Iowa Code 

§ 232.114(6)(a)–(e). These exceptions also followed Wald’s model—including an 

exception to termination when it would harm the child. Compare Wald at 706; with

§ 232.114(6)(c) (1979). 

Despite amendments to the statute since its adoption, the language of the 

close-relationship exception remains true to its original form: 

Model Child Placement Code 

(1976)

Iowa Code Section 

232.114(6)(c) (1979)

Iowa Code Section 

232.116(3)(c) (2021)

[A] court should not order 

termination if it finds by clear and 

convincing evidence that any of 

the following are applicable:

(a) Because of the closeness of 

the parent-child relationship, it 

would be seriously detrimental to 

the child to terminate parental 

rights at this time.

[T]he court need not terminate the 

relationship between parents and 

child if the court finds:

. . .

c. There is clear and convincing 

evidence that such termination 

would be detrimental to the child at 

the time due to the closeness of

the parent-child relationship[.]

The court need not terminate the 

relationship between the parent and 

child if the court finds any of the 

following:

. . . 

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 parentchild relationship[.]
17

But our legislature did make two key changes to the model language. First, 

the statute substitutes the phrase “need not” for “should not.” Iowa Code 

§ 232.116(3)(c) (2021).

12

 Second, the legislature changed “seriously detrimental” 

to “detrimental.”13 Id. These changes offset one another—a lesser burden of harm 

but permissive application of the exception. This framework supports the statute’s 

aim to balance the State’s duty to protect children against the constitutionally 

protected parent-child relationship. See M.S., 889 N.W.2d at 678. 

II. Application of Exception to B.B. and Allison

With the history and text of the close-relationship exception in mind, I turn 

to its application here. Allison must show by clear and convincing evidence that 

the termination of her parental rights would harm B.B. at the time because of their 

close bond. Iowa Code § 232.116(3)(c). If she makes that showing, then we must 

decide whether the exception should preclude termination. In re C.A., No. 13-

1987, 2014 WL 1234470, at *3 (Iowa Ct. App. Mar. 26, 2014) (noting court has 

discretion to terminate even when parent proves an exception).

12 We’ve interpreted this language to mean that the exceptions are permissive, not 

mandatory. In re J.V., 464 N.W.2d 887, 890 (Iowa Ct. App. 1990), abrogated on 

other grounds by P.L., 778 N.W.2d at 39.

13 The code does not define “detrimental.” The dictionary defines it as “causing 

damage or harm; injurious.” Detrimental, American Heritage Dictionary (2d ed. 

1985). And our case law has used harm and detriment interchangeably. See In 

re M.W., No. 08–0784, 2008 WL 2522001, at *1 (Iowa Ct. App. 2008) (“[T]he 

juvenile court need not terminate the parental relationship if, based on the 

closeness of the parent-child bond, termination would be harmful to the child.”); 

See also In re J.J., No. 22-0046, 2022 WL 951030, at *4 (Iowa Ct. App. Mar. 30, 

2022); In re M.C., No. 17-1184, 2017 WL 4315079, at *4 (Iowa Ct. App. Sept. 27, 

2017). 
18

A. Did Allison carry her burden?

Two questions drive the analysis. How close was their bond? And will the 

child be harmed by severing that bond? In describing situations when termination 

would be “seriously detrimental” to children, Professor Wald gave examples of 

children who ran away from their foster care to return home or had to be “moved 

from foster home to foster home” because they rejected anyone other than their 

parental figures. Wald, at 696−97. He also focused on children’s opinions: “If a 

child aged 10 or older objects to termination, her objection should be decisive.” Id. 

at 697.14 In his view, even a younger child’s wishes “as expressed in interviews 

with well-trained mental health professionals, should be given great weight in 

determining whether termination is detrimental.” Id.

These examples illustrate how the risk of “serious” harm from termination 

of a close parental bond can manifest in a child. But our statute does not require 

that the severance be “seriously detrimental” only “detrimental.” And our case law 

recognizes that the risk of losing a close bond, even without outward 

manifestations of the harm, may meet the burden under section 232.116(3)(c).15 

See, e.g., M.S., 889 N.W.2d at 684 (applying close-relationship exception when 

father had a “strong bond” with the child, and provided “excellent and loving care 

14 Our legislature adopted this example as a separate permissive exception. See

Iowa Code § 232.116(3)(b) (stating a court need not terminate if “the child is over 

ten years of age and objects to the termination”).

15 Indeed, as one scholar has observed, “there is no question that when a parent’s 

rights are terminated, it is not only the parent who loses something. The child loses 

his legal relationship with his parents, extended family members, and potentially 

his siblings.” Brent Pattison, When Children Object: Amplifying an Older Child’s 

Objection to Termination of Parental Rights, 49 U. Mich. J.L. Reform 689, 701 

(2016).
19

for the child” during visitation); In re D.G., No. 18-1480, 2019 WL 1294228, at *3 

(Iowa Ct. App. Mar. 20, 2019) (reversing termination of mother’s parental rights 

because she “participated in visits and actively engaged with all” of her children); 

In re L.C., No. 14-2034, 2015 WL 576569, at *5 (Iowa Ct. App. Feb. 11, 2015)

(finding that father met burden by being “vigilant in visiting his daughter” and 

creating a “special attachment” despite not living in same household since she was 

an infant); In re J.C., No. 11–1936, 2012 WL 469807, at *4 (Iowa Ct. App. Feb. 15, 

2012) (finding mother met exception by displaying “extraordinary potential to be a 

successful parent” in visitation with her son and the two possessed an “unusually 

close relationship”).

Granted, our supreme court has said that the mere “existence of a bond is 

not enough” to stave off termination. See In re A.B., 956 N.W.2d 162, 169 (Iowa 

2021); see also In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (declining to apply 

close-relationship exception when mother had “some bond” with her two- and 

three-year-old children, but their visits had not progressed and had become

“overwhelming” for the mother). 

But here, as the majority concedes, the closeness of the parent-child 

relationship is “uncontested.” To the person, everyone involved recognized B.B.’s 

tight bond with Allison. The department’s social work supervisor testified to that 

fact. The Court Appointed Special Advocate (CASA) report reflected Allison’s keen 

attention to B.B.’s emotional well-being.16 B.B.’s therapist also described the 

“warm and reciprocal relationship” she observed between mother and son: “Allison 

16 At the end of the trial, the CASA volunteer told the court “I’m just as conflicted 

as everybody else with mom and [B.B.] being so bonded. It’s a tough one.” 
20

has exhibited attuned, nurturing, and responsive behavior with [B.B.].” B.B. 

repeatedly expressed to his foster mother that he “misses his mom” between visits. 

Both Allison and her friend Bradley testified to the closeness of the mother-son 

connection. And the juvenile court commented on the loving relationship between 

B.B. and Allison.

So the fighting question is: did Allison prove termination would harm B.B. 

because of their undeniably close relationship? As the juvenile court noted, B.B. 

is “sad to leave visits” and “looks forward to time” with his mother. But the majority 

downplays “any short-term sadness that B.B. may experience” as less weighty 

than the “likely long-term hardship” B.B. would suffer because of Allison’s inability 

to meet his needs.

I disagree with the majority’s finding for both legal and factual reasons. 

Legal first. The majority overlooks the phrase “at the time” in the provision. See

Iowa Code § 232.116(3)(c). We must assess whether termination would be 

detrimental to the child “at the time” of the hearing. Cf. In re L.M., 904 N.W.2d 835, 

839 (Iowa 2017) (interpreting “at the present time” in section 232.116(1)(h)(4) as 

the time of the termination hearing). True, the best-interests test in section 

232.116(2) mentions the “long-term” nurturing and growth of the child. But that 

best-interests test is distinct. As P.L. explained, after deciding that termination is 

in the child’s best interests under section 232.116(2), the court still must consider 

if any exceptions in section 232.116(3) “allow the court not to terminate.” 778 

N.W.2d at 39. “As a general rule of statutory construction, we avoid an 

interpretation or application of a statute that renders other portions of the statute 

superfluous or meaningless.” Little v. Davis, 974 N.W.2d 70, 75 (Iowa 2022). So 
21

even though the State proved termination was in B.B.’s best interests, we must 

separately decide whether Allison proved that termination would be detrimental to

B.B. at the time of the hearing. 

Which brings me to the factual weakness in the majority’s analysis. The 

record does not support the idea that B.B. will experience only “short-term 

sadness” from losing his relationship with Allison. Both Allison and B.B. foster 

mother noticed that his behavioral progress ebbed when the department cut back 

his mother’s visitation because of her positive drug test. The foster mother said 

B.B. talked more about “his mom” and began to exhibit the same troubling 

behaviors as when he was first placed in her care. These behaviors worsened to 

the point where she considered increasing his therapy. Allison also noticed this 

regression during visits, testifying that the five-year-old grew less confident and 

acted more like a toddler needing comfort. 

Nothing in the record suggests that B.B.’s trauma was transient. For 

parents, we have accepted the logic that their past conduct conveys their future 

care-giving abilities. See In re A.B., 815 N.W.2d 764, 778 (Iowa 2012). So why 

would we downplay B.B.’s present distress when deciding whether termination 

would be detrimental? B.B.’s regression when afforded less time with his mother 

is strong evidence that he will be harmed by losing that close bond. 

Another aspect of Allison’s clear-and-convincing proof was B.B.’s objection 

to termination, as expressed to his GAL.17 Even at his young age, his wishes 

17 Because he was only five years old, the GAL did not believe that B.B. needed a 

separate attorney, but the GAL noted that she considered his wishes in expressing 

what she believed was in his best interests.
22

signal the likelihood that he will suffer harm from the termination. See Wald, at 

697. Finally, B.B.’s therapist confirmed that “terminating the mother’s rights would 

be a difficult loss” for him. 

But in rejecting the close-relationship exception, the majority lifts up other 

testimony from B.B.’s therapist that his foster home is safe and supportive, and her 

view that separation from that placement would be “devastating” to him. But unlike 

section 232.116(2)(b), the close-relationship exception does not mention the 

child’s integration into a foster home.18 And we are “not free to take children from 

parents simply by deciding another home offers more advantages.” In re Burney, 

259 N.W.2d 322, 324 (Iowa 1977). 

In sum, the closeness of the parent-child relationship is without dispute. 

And the present detriment from terminating that relationship is evident from B.B.’s 

behavior. All told, Allison’s evidence leaves “no serious or substantial doubt” that 

her son would be harmed by the termination. See M.S., 889 N.W.2d at 679. 

B. Should this permissive exception preserve their bond?

Finding Allison has met her burden, the next question is whether this 

permissive exception should preclude termination. See J.V., 464 N.W.2d at 890. 

Courts exercise their discretion based on “the unique circumstances of each case 

and the best interests of the child.” M.W., 876 N.W.2d at 225 (citations omitted). 

In the context of the close-relationship exception, we have described this step as 

18 I agree with the majority that B.B. has a strong relationship with his foster family. 

But despite his integration into their home, he still looks to Allison as his main 

parental figure. Cf. Wald, at 696−97 (citing example of child rejecting other 

parental figures as sign that termination will be seriously detrimental). 
23

deciding “whether termination achieves justice.” M.S., 889 N.W.2d at 684. For 

B.B. and Allison, it doesn’t. 

The juvenile court chose not to use this permissive exception to save the 

parent-child relationship because of B.B.’s “young age, the length of time he has 

been out of home, his strong relationship with his foster family, his therapist’s input, 

and his need for permanency.” As its bottom line, the court found termination was 

“in the child’s best interests.” The majority takes a similar path.

They are not wrong about B.B.’s best interests—at least under the 

framework in section 232.116(2). But the permissive aspect of 

section 232.116(3)(c) cannot mean wholesale importation of section 232.116(2)’s 

best-interest structure as the basis for rejecting the permissive exception. 

Otherwise, P.L.’s three-step test is always a two-step test. 

What’s important when deciding whether the permissive exception should 

save the parent-child relationship is the “unique circumstances” of the case and 

how those affect the welfare of the child. As the juvenile court said at trial, this 

case has unique factors. For example, in most cases “where parents are in the 

throes” of methamphetamine use, “they’re not showing up to their kids’ therapy 

sessions.” But Allison did. And Allison went above and beyond to provide special 

experiences for B.B. during their visitation. She made him pancakes in the shape 

of the letter B, saved cardboard boxes to paint as a craft project, and decorated 

his bedroom and his birthday cake with Sonic the Hedgehog—his favorite cartoon 

character. 

The close-relationship exception should preclude termination when a parent 

shows “extraordinary potential” to be successful and maintains a close bond with 
24

their child. See, e.g., J.C., 2012 WL 469807, at *3−4 (declining to termination 

when mother had “exemplary interactions” with her eight-year-old son and “did 

everything she could to keep the visits positive”). In J.C., the mother was also 

pursuing further education, lived in a safe home, and was developing a healthy 

support system. Id. Based on those circumstances, we preserved the parent-child 

relationship despite the mother’s failure to “embrace her drug-free lifestyle until the 

eleventh hour.” Id. 

Allison displays that potential in spades. She relishes visits with B.B. and 

stayed engaged even after the State filed its termination petition. The service 

providers note her positive parenting skills. In fact, B.B’s therapist recommended 

expanded visitation. Allison also earned an income through odd jobs, such as 

cleaning houses and baking cupcakes to sell to restaurants. And she enrolled in 

business classes at Des Moines Area Community College with entrepreneurial 

aspirations. She has stable housing and a support system in her friend Bradley. 

She also attends her own mental-health therapy on top of B.B.’s sessions. Her 

therapist drafted a letter noting her success in their treatment goals:

[Allison] continues to demonstrate the ability to use coping skills on 

a regular basis, demonstrates increased levels of self-awareness, is 

able to receive feedback, has displayed an increased understanding 

of what her child’s needs are, and how to better meet those needs. 

[Allison] is able to take accountability for her decisions.

True, Allison’s acknowledgment of her drug problem came late in the case. 

But we’ve applied the close-relationship exception to parents with extraordinary 

potential even when their efforts to address addiction came “at the eleventh hour.”
25

See L.C., 2015 WL 576569, at *5. Allison’s “level of competency as a mother 

stands out as a rare commodity in our parental termination jurisprudence” and 

merits protection today. See J.C., 2012 WL 469807, at *3. 

Still, the majority laments Allison’s “inability to provide for the child’s ongoing 

needs” because of her substance abuse. I can’t fault the majority or the juvenile 

court for their concerns that Allison tested positive for methamphetamine. But 

Allison’s need to address her addiction does not mean we should discard the 

parent-child relationship. Recall that the juvenile court declined to terminate under 

section 232.116(1)(l), finding no evidence of current peril from her drug use beyond 

the “general danger presented by parenting with unresolved substance abuse.” 

Indeed, nothing in this record shows Allison’s substance abuse affected her 

interactions with B.B. See In re A.B., 957 N.W.2d 280, 297–98 (Iowa 2021)

(reversing termination of mother’s rights when there was no sign that her cocaine, 

marijuana, and alcohol use “interfered with her ability to parent safely”); M.S., 889 

N.W.2d at 682 (noting that termination based on substance abuse requires nexus 

between that abuse and adjudicatory harm). Neither service providers, nor B.B.’s 

therapist, nor her friend Bradley ever saw Allison under the influence while 

interacting with her son several times a week. That’s not to say I take lightly 

Allison’s avoidance of drug screens or her positive tests just before the termination 

hearing. But her status as a methamphetamine addict—standing alone—does not 

mean that she cannot parent B.B. Cf. In re J.S., 846 N.W.2d 36, 42 (Iowa 2014) 

(analyzing methamphetamine addiction as grounds for CINA adjudication and 

holding addiction on its own did not mean children were in imminent likelihood of 

abuse or neglect).
26

Given these unique circumstances, I would find that severing the strong 

bond between B.B. and Allison “fails to achieve justice.” See M.S., 889 N.W.2d at 

686. The legislature enacted the close-relationship exception for a reason. L.C., 

2015 WL 576569, at *5. This built-in safety valve allows courts to exercise 

discretion to preserve a strong parent-child bond when severing it would harm the 

child. I would reverse the termination order and remand for further proceedings.19

19 Finally, saving the relationship under section 232.116(3)(c) is not binding on 

future termination proceedings where the circumstances, including the closeness 

of the relationship and the potential harm, will be reassessed. See In re D.G., 

No. 20-0587, 2020 WL 4499773, *5 (Iowa Ct. App. Aug. 5, 2020) (terminating 

parental rights because the parents’ relationships with their children had 

“diminished” to where the “bonds are not what they once were”).