IN THE COURT OF APPEALS OF IOWA

No. 20-0592

Filed June 17, 2020

IN THE INTEREST OF H.B. and K.B.,

Minor Children,

L.B., Father,

Appellant,

B.C., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Susan Cox, District 

Associate Judge.

Parents separately appeal the termination of their parental rights. 

AFFIRMED ON BOTH APPEALS.

Edward S. Fishman of Hopkins & Huebner, P.C., Adel, for appellant father.

Kelsey Knight of Carr Law Firm, P.L.C., Des Moines, for appellant mother.

Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant 

Attorney General, for appellee State.

ConGarry D. Williams of Juvenile Public Defender, Des Moines, attorney 

and guardian ad litem for minor children.

Considered by Mullins, P.J., Greer, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2020).
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SCOTT, Senior Judge.

Parents separately appeal the termination of their parental rights to their two 

children, K.B., born in 2017, and H.B., born in 2018, pursuant to Iowa Code section 

232.116(1)(h) (2019).1 Both parents challenge the sufficiency of the evidence 

supporting the statutory ground for termination cited by the juvenile court, argue 

termination is contrary to the children’s best interests, and maintain the court 

should have applied the exception to termination contained in Iowa Code section 

232.116(3)(c).

I. Background Facts and Proceedings

Both parents have long histories of mental-health issues. The family came 

to the attention of the Iowa Department of Human Services (DHS) in December 

2017 when the mother was arrested for marijuana possession and child 

endangerment because her two older children were with her in her vehicle while 

she was smoking marijuana.2 A no-contact order was entered between the mother 

and children for the ensuing three months. The mother pled guilty in March 2018 

and was placed on probation. At some point, the no-contact order was lifted and 

the children were returned to parental custody. In April, concerns arose about the 

condition of the family home. Pursuant to a safety plan, the children were placed 

with relatives while the parents worked on the condition of the home. They made 

little progress, and they were ultimately asked to leave their apartment. An order 

for formal temporary removal was entered in May, which was confirmed in July 

 

1 The mother has a third child, A.C., born in 2016, who is not involved in these 

appeals.

2 Prior thereto, DHS provided services to the mother in relation to her inability to 

properly care for A.C.
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following a removal and adjudication hearing. The mother underwent a substanceabuse evaluation, resulting in a recommendation that she engage in extended 

outpatient treatment. Both A.C. and K.B. were adjudicated as children in need of 

assistance. 

Also in July, H.B. was born. He remained in the parents’ care. Additional 

concerns arose regarding the father’s substance abuse and domestic violence in 

the presence of the child. As a result of a family quarrel, DHS implemented a 

safety plan involving the mother and H.B. residing in a shelter. Thereafter, in 

September, the State filed a petition for adjudication as to H.B. Following another 

incident of domestic violence, the State applied for removal of H.B. The juvenile 

court entered an emergency removal order. The mother continued to associate 

with the father, and the instances of domestic violence continued. Following a 

hearing, the court entered an order confirming removal and adjudicating H.B. to be 

in need of assistance. 

By October, the parents were engaged in substance-abuse and mentalhealth treatment. However, the father continued to test positive for marijuana use, 

and he had recently been the subject of dual arrests for drug possession and 

criminal mischief. DHS recommended a six-month extension as to K.B. The 

mother continued to participate in services through the time of the review hearing 

in May 2019. The parents were interacting with the children appropriately during 

visits and had obtained suitable housing for the family. Problems with domestic 

violence in the home appeared to have dissipated, but the father’s participation in 

services was inconsistent. He was unsuccessfully discharged from mental-health 

treatment in March, and he continued to test positive for marijuana use. Despite 
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the father’s lack of engagement, DHS recommended a six-month extension to 

work toward reunification. The court granted the request as to the mother, but 

directed the State to initiate termination proceedings as to the father. 

Shortly after the juvenile court’s review order, the father was arrested for 

domestic abuse assault against the mother. In July, pursuant to a plea agreement, 

the father pled guilty to an amended charge of disorderly conduct. The related nocontact order between the parents was lifted upon the mother’s request. The 

father continued to test positive for marijuana through August.

The State filed its termination petition as to the father in July. The State 

amended its petition in September to request termination of the mother’s rights as 

well. By October, the father was meaningfully engaging in mental-health and 

substance-abuse treatment. However, based on the father’s track record, DHS 

expressed concern for the father’s ability to stay the course on a long-term basis. 

Throughout the proceedings, DHS frequently recommended the mother to obtain 

housing independent of the father and distance herself from him due to the ongoing 

violence in their relationship. The mother declined to do so. The parents continued 

to reside with the children’s paternal grandmother, with whom the father also has 

a history of violent interactions. As a result of those issues, the parents never 

progressed beyond fully-supervised visitation until sometime in October. Then, in 

late October, the parents were involved in an incident in which property was 

damaged when someone fired a BB gun from a vehicle the parents occupied with 

two other individuals. The parents’ visitation reverted to fully supervised. In the 

coming months, the father reverted to inconsistent participation in therapy. 
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The matter proceeded to a termination hearing in January 2020. At that 

point in time the mother was residing at a women’s residential facility as a condition 

of her recent violation of probation. Just days before she had continued to reside 

with the father. The mother testified she would not be able to have the children 

placed with her at the facility for a matter of weeks. The month prior, the father 

was discharged from substance-abuse and mental-health treatment for 

nonattendance. The mother testified she was no longer in a relationship with the 

father and she was pregnant, the father of the child being another man she was 

unable to identify. At the hearing, the social worker testified to her concern for her 

expectation that the mother would continue to reside with the father upon her 

discharge. The worker’s remaining concerns for returning the children to the 

parents’ care included the home environment, keeping the children safe and clean, 

domestic violence, and substance abuse. 

The juvenile court ultimately terminated the parents’ rights under Iowa Code 

section 232.116(1)(h). Both parents appeal.

II. Standard of Review

Our review is de novo. In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our 

primary consideration is the best interests of the children, In re J.E., 723 N.W.2d 

793, 798 (Iowa 2006), the defining elements of which are the children’s safety and 

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

also Iowa Code § 232.116(2).
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III. Analysis

A. Sufficiency of the Evidence

Both parents challenge the State’s establishment of the final element of the 

sole ground for termination cited by the juvenile court—that the children could not 

be returned to their care at the time of the termination hearing. See Iowa Code 

§ 232.116(1)(h)(4) (requiring clear and convincing evidence that the children

cannot be returned to the custody of their parents at the present time); In re D.W., 

791 N.W.2d 703, 707 (Iowa 2010) (interpreting the statutory language “at the 

present time” to mean “at the time of the termination hearing”). 

As to the mother, she had recently moved into a women’s residential facility 

as a condition of her probation. She testified it would be a number of weeks before 

the children could be placed with her there. The evidence was clear and 

convincing the children could not be returned to her care at the time of the 

termination hearing. As to both parents, they had recently reverted from semisupervised to fully-supervised visitation. While we acknowledge there were no 

parenting concerns during visits, the parents would need to demonstrate their 

ability to properly care for the children in an unsupervised setting and for longer 

periods of time before the children can be returned to their care. That was not the 

situation at the time of the termination hearing. Thus, we agree with the juvenile 

court the children could not be returned to the parents’ care at the time of the 

hearing, and the State met its burden for termination under section 232.116(1)(h). 

B. Best Interests

Both parents argue termination is contrary to the children’s best interests. 

In determining whether termination is in the best interests of children, we “give 
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primary consideration to the child[ren]’s safety, to the best placement for furthering 

the long-term nurturing and growth of the child[ren], and to the physical, mental, 

and emotional condition and needs of the child[ren].” Iowa Code § 232.116(2). As 

noted, the defining elements of children’s best interests are the children’s safety 

and need for a permanent home. H.S., 805 N.W.2d at 748.

The father was inconsistent in meaningfully engaging in services throughout 

the proceedings. While he appeared to be in a good place as to his marijuana 

usage at the time of the termination hearing, concerns remained, especially given 

the father’s long history of mental-health and anger issues. The mother did 

meaningfully engage in services. But she knew the primary barrier to reunification 

was her continuing association with the father, and her refusal to obtain housing 

independent from him or otherwise distance herself from him was problematic. At 

one point late in the proceedings, the mother moved in with her sister in Missouri, 

a residence it appeared the children would be able to be placed with her in. 

However, after mere weeks, the mother returned to Iowa to continue residing with 

the father. 

At the end of the day, the children could not be returned to either parents’ 

care despite roughly two years of services. “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 . . . be able to provide 

a stable home for the child.” In re A.B., 815 N.W.2d 764, 777 (Iowa 2012) (quoting 

In re P.L., 778 N.W.2d 33, 39 (Iowa 2010)). The parents have been given ample 

time to get their affairs in order, and these children’s best interests are best served 

by providing permanency and stability now. See id. at 778 (“It is simply not in the 
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best interests of children to continue to keep them in temporary foster homes while 

the natural parents get their lives together.” (quoting In re C.K., 558 N.W.2d 170, 

175 (Iowa 1997))). An appropriate adoptive family has been located for these 

children. These children should not have to wait any longer for permanency; they 

are entitled to immediate constant, responsible, and reliable parenting. See In re 

L.L., 459 N.W.2d 489, 495 (Iowa 1990). Because termination followed by adoption 

will satisfy these children’s need for a permanent home, we conclude termination 

is in their best interests.

C. Statutory Exception

Both parents request the application of the statutory exception to 

termination contained in Iowa Code section 232.116(3)(c). We first note the 

application of the statutory exceptions to termination is “permissive, not 

mandatory.” In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (quoting In re A.M., 

843 N.W.2d 100, 113 (Iowa 2014)). While we acknowledge bonds exist between 

the parents and children, those bonds can only be described as limited at best 

given these children’s young age and placement outside of their parents’ care for 

most of their short lives. Upon our de novo review, we find the evidence insufficient 

to show “termination would be detrimental to the child[ren] . . . due to the closeness 

of the parent-child relationship.” See In re A.S., 906 N.W.2d 467, 476 (Iowa 2018) 

(noting parent bears burden to establish exception to termination). We therefore 

decline to apply the statutory exception to termination. Alternatively, we conclude 

application of the exception would be contrary to the children’s best interests.
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IV. Conclusion

We find the evidence sufficient to support the ground for termination 

contained in Iowa Code section 232.116(1)(h), termination is in the children’s best 

interests, and the exception to termination contained in section 232.116(3)(c) 

should not be applied. As such, we affirm the termination of both parents’ parental 

rights.

AFFIRMED ON BOTH APPEALS.