IN THE COURT OF APPEALS OF IOWA

No. 23-1590

Filed January 24, 2024

IN THE INTEREST OF A.W., A.W., and A.W.,

Minor Children,

L.J., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Lynn Poschner, District

Associate Judge.

A mother appeals the termination of her parental rights. AFFIRMED.

Donna M. Schauer of Schauer Law Office, Adel, for appellant mother.

Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney 

General, for appellee State.

Nicole Garbis Nolan of Youth Law Center, Des Moines, attorney and 

guardian ad litem for minor children.

Considered by Bower, C.J., and Schumacher and Badding, JJ.
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SCHUMACHER, Judge.

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

statutory requirements for termination were not proven, termination is not in the 

best interests of the children, and a permissive exception under Iowa Code section 

232.116(3) (2023) should be applied to preclude termination. 

I. Background Facts and Prior Proceedings

Twins A.W. and A.W., born in 2012, and sibling A.W., born in 2014, came 

to the attention of the Iowa Department of Health and Human Services (HHS) after 

they were left home alone by their mother overnight and were discovered by a 

garbage dumpster unattended. The children informed law enforcement they had 

slept in their mother’s car overnight, after they were left alone and observed a 

mouse in their home. The children had been living with the mother; their parents 

had been separated since before the involvement of HHS.

The children were removed from parental custody in June 2021 and 

adjudicated children in need of assistance (CINA) in July. The children’s removal

followed instances of lack of supervision, the mother’s use of alcohol, lack of 

necessary psychiatric care for the children, and failure to address the educational 

needs of one of the children. A dispositional hearing was held over three months 

in July, August, and September. The mother continued to struggle with substance 

abuse over this period. She was arrested for operating a motor vehicle while 

intoxicated in July and she admitted drinking alcohol over the noon break of the 

dispositional hearing date in September. After the September hearing, the mother 

submitted a test positive for alcohol at a level of 0.102%.
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Following a permanency hearing in May 2022, the parents were granted a 

six-month extension, with the court finding that if the mother continued to 

participate in services the children could be returned to her custody. Yet the month 

following the permanency hearing, the mother was arrested for domestic violence,

and in August she tested positive for cocaine. She denied cocaine use and failed 

to appear for additional drug screens in November, December, and January. While 

she completed several requested substance-abuse evaluations, her compliance

often occurred only after a long delay. The mother did not participate in any 

substance-abuse treatment services for over a year following her June 2022 arrest. 

Her alcohol abuse continued, and she reported in July 2023 that she had been 

consuming a “six-pack three times a week” for the past six months. She also 

reported using cocaine twice a week for a year, ending in November 2022. The 

mother was diagnosed with alcohol use disorder and referred for extended 

outpatient treatment. The mother’s visits with the children were inconsistent over 

the course of these proceedings, and she often missed opportunities for interaction 

with the children.

The State petitioned for termination of parental rights of both parents in

January 2023. In August, the State dismissed the termination petition as to the 

father. The court terminated the mother’s parental rights pursuant to Iowa Code 

section 232.116(1)(e) and (f) (2023), with custody and placed with the father.

II. Standard of Review

“Our review of termination of parental rights proceedings is de novo.” In re

M.D., 921 N.W.2d 229, 232 (Iowa 2018). We give weight to the court’s findings of 

fact, but we are not bound by them. Id. “There must be clear and convincing 
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evidence of the grounds for termination of parental rights.” In re M.W., 876 N.W.2d 

212, 219 (Iowa 2016).

III. Termination

Orders for termination of parental rights are reviewed through a three-step

analysis. We determine first whether a ground for termination under section 

232.116(1) has been established, second whether termination is in the best 

interest of the child, and third whether any permissive exceptions under section 

232.116(3) apply to preclude termination. Id. at 219–20.

A. Grounds for termination.

The court terminated the mother’s parental rights under Iowa Code section 

232.116(1)(e) and (f). Because we find termination was warranted under 

232.116(1)(f), we limit our discussion to those grounds. 

Under section 232.116(1)(f) the grounds for termination are established if:

The court finds that all of the following have occurred:

(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.

“At the present time” means “the time of the termination hearing.” In re K.D., 

No. 16-1778, 2017 WL 108586, at *1 (Iowa Ct. App. Jan. 11, 2017). The mother 

does not dispute elements one, two, and three have been met. At the time of the 

termination hearing, the mother was living in a supportive housing program where 
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she would not be able to care for the children until she left the program. She 

testified this program would last from six months to two years. 

In this appeal, rather than arguing that the children could be returned to her 

custody at the present time, or for an extension of time, the mother argues the

“[f]ather’s parental rights are not being terminated . . . so the children were safely 

placed in a parental home.” (Emphasis in original). But the father is not the parent 

in question in the instant appeal. The evidence presented at the termination 

hearing demonstrates that the children would be unable to be returned to the 

mother’s custody at the time of the hearing. 

The mother testified it would not be possible for the children to return to her 

custody for at least six months, and she has demonstrated throughout this case a 

repeated failure to make the progress necessary to care for the children. The 

mother already received an extension of time following the permanency hearing. 

And since the removal she has been arrested for domestic violence, charged and 

convicted of OWI, tested positive for cocaine, and been diagnosed with alcohol 

use disorder. At the termination hearing, she testified she had been sober for two 

months, but this short period of sobriety follows years of substance abuse.

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“It is 

well-settled law that we cannot deprive a child of permanency after the State has 

proved a ground for termination . . . 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). The children could not be returned to the custody of their 

1 The mother was in her mid-forties at the time of the termination hearing. Her use 

of cocaine and alcohol began when she was seventeen years old; she began using 

marijuana at age fifteen. 
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mother at the time of the termination hearing. The State proved the statutory 

grounds of Iowa Code section 232.116(1)(f) by clear and convincing evidence. 

B. Best interests and permissive exceptions

Even where grounds for termination exist, termination must still be found to 

be in the best interests of the children. In re A.M., 843 N.W.2d 100, 112 (Iowa 

2014). When considering best interests, “the court 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.” In re A.S., 906 N.W.2d 467, 474 (Iowa 2018). Under Iowa 

Code section 232.116(3) permissive exceptions exist, and “‘[t]he court need not 

terminate the relationship between the parent and child’ under certain 

circumstances.” A.M., 843 N.W.2d at 113. 

The mother argues termination is not in the best interests of the children 

because of the close relationship she shares with them, highlighting that under 

Iowa Code section 232.116(3), a close relationship between the parent and child 

is a permissive exception that may preclude termination. The court may choose 

not to terminate if “[t]here 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.” Iowa Code § 232.116(3)(c). “However, this circumstance is 

only one of many factors considered and is not controlling.” In re J.W., No. 02-

1359, 2002 WL 31528638, at *3 (Iowa Ct. App. Nov. 15, 2002). And “the existence 

of a bond is not enough. The law requires clear and convincing evidence that 

termination would be detrimental . . . .” In re A.B., 956 N.W.2d 162, 169 (Iowa 

2021) (internal quotations omitted).
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We do not question that the mother loves her children but her sporadic visits 

and inability to stay on the path to recovery prevent her from caring for them. 

Although one of the children expressed a position against termination, the other 

two took no position, and stated a desire to live full-time with their father. The 

mother testified that she opposed placement with the father. It is in the children’s 

best interest to achieve long-term stability and permanency and the mother’s 

intermittent involvement and unreliability do not contribute to the same. For the 

exception to preclude termination, the disadvantage of termination must outweigh 

the mother’s inability to properly care for the children and the need for permanency. 

See In re D.W., 791 N.W.2d 703, 709 (Iowa 2010); In re W.M., 957 N.W.2d 305, 

315 (Iowa 2021). Any disadvantage does not outweigh the need for permanency,

and we determine that the application of this permissive exception is unwarranted. 

The mother also argues for the application of a permissive exception in that 

a relative has custody of the children. Iowa Code section 232.116(3)(a) permits 

the court to determine that termination should not occur if a relative has custody of 

the children. The children were in the custody of their father. The district court 

disagreed that this justified the application of the permissive exception, concluding:

[The father] and [the mother] bring out the worst in each other. They 

cannot co-parent. [The mother] does not believe the children should 

live with [the father]. She has made recent and also improbable

reports that [the father] is stalking her . . . . All of these factors could 

cause further disruption and instability for the children. The children 

are already fragile and working to restore their mental health. The 

children have a chance now to grow up together, with a parent. This 

chance should be protected. The children’s best chance at long-term 

stability is for [the mother’s] parental rights to be terminated. 

We agree, based on these facts, that the application of this permissive exception 

is also not warranted. 
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“‘Children simply cannot wait for responsible parenting. . . . It must be 

constant, responsible, and reliable.’ It is simply not in the best interests of children 

to continue to keep them in temporary foster homes while the natural parents get 

their lives together.” In re C.K., 558 N.W.2d 170, 175 (Iowa 1997) (quoting In re 

L.L., 459 N.W.2d 489, 495 (Iowa 1990)). Considering the mother’s inability to 

demonstrate sustained sobriety and the length of time the children have been out 

of her custody, we conclude that termination is in the best interests of the children, 

and the application of a permissive exception is unwarranted. 

IV. Conclusion

Grounds for termination of the mother’s parental rights exist under section 

232.116(1)(f) as the children could not be returned to her custody at the time of the 

termination hearing. Termination is in the best interests of the children and the 

application of a permissive exception to preclude termination is unwarranted.

Accordingly, we affirm.

AFFIRMED.