IN THE COURT OF APPEALS OF IOWA

No. 16-1245

Filed September 14, 2016

IN THE INTEREST OF D.M.,

Minor Child,

D.H., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Susan Flaherty, 

Associate Juvenile Judge.

A mother appeals from the order terminating her parental rights. 

AFFIRMED.

Mark D. Fisher of Nidey, Erdahl, Tindal & Fisher, P.L.C., Cedar Rapids, for 

appellant mother.

Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant 

Attorney General, for appellee State.

Kimberly A. Opatz of Linn County Advocate, Cedar Rapids, for minor 

child.

Considered by Danilson, C.J., and Mullins and Bower, JJ.
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DANILSON, Chief Judge.

A mother appeals from the termination of her parental rights to her child, 

D.M., pursuant to Iowa Code section 232.116(1)(f) (2015).1 The mother 

contends the juvenile court improperly found grounds for termination, should 

have granted the mother additional time to work toward reunification, and erred in 

admitting an exhibit containing the results of a drug test completed as part of 

criminal proceedings in another state. Because the mother exhibits improvement 

only when faced with impending termination, has had over two years to redirect 

her life, and issues regarding her substance abuse and decision-making remain, 

we affirm the termination of the mother’s parental rights.

I. Background Facts and Proceedings.

D.M. first came to the attention to the department of human services 

(DHS) in late 2013 when allegations arose that the mother was using marijuana 

while caring for D.M. DHS discovered the mother was not acting as D.M.’s 

primary caregiver and often left D.M. in the care of his grandparents.

D.M. was first removed from the mother’s care on January 23, 2014, and 

remained out of her custody for approximately eighteen months. After the court 

directed the State to file a petition for termination in February 2015, the mother 

began making serious efforts toward improvement. Due to the mother’s 

progress, D.M. was placed in her care for trial home placement on June 5, 2015, 

and on July 15, 2015, legal custody was returned. 

 

1 The father’s parental rights were also terminated after he consented to termination 

pursuant to the ground alleged in the petition. He does not appeal.
3

However, shortly thereafter on August 10, 2015, the mother was arrested 

outside her home on charges of operating while intoxicated and assault. 

Because the mother informed DHS that D.M. was not in her care at the time of 

the incident, D.M. was not removed from her custody. DHS later learned the 

mother had been untruthful: D.M. was in her care prior to and during the time of 

the arrest. In early November 2015, the mother was again arrested, this time in 

Wisconsin, on a charge of possession of methamphetamine. D.M. was 

subsequently removed from the mother’s custody on November 5, 2015.

After the second removal of D.M., the mother again struggled to make 

progress and meet DHS expectations. Three patch tests completed by the 

mother on March 18, 25, and April 11, 2016, showed positive results for 

methamphetamine. Despite the methamphetamine charge in Wisconsin and the 

three positive patch tests, the mother did not admit to using methamphetamine 

until shortly before the termination hearing. The mother contends she used 

methamphetamine on only one occasion in November 2015 and offers no 

credible explanation for the positive test results. 

After the termination petition was filed on May 9, 2016, the mother again 

began making efforts toward reunification. By the time of the termination hearing 

on July 8, 2016, the mother had completed intensive outpatient substance-abuse 

treatment and was on course to complete extended outpatient substance-abuse 

treatment. She was participating in drug testing, working to resolve her criminal 

charges, and attending and interacting appropriately with D.M. at semisupervised visits twice a week. However, despite stating at a family team 
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meeting on July 6, 2016, that she had no alcohol in her home, multiple bottles of 

alcohol were found in the mother’s kitchen during a visit later that same day. 

During the July 8, 2016 termination hearing, the mother argued grounds 

for termination did not exist and requested additional time to achieve 

reunification. At the close of evidence, the court entered an immediate verbal 

order granting the petition for termination. The court also entered a written ruling 

incorporating the court’s findings on the record on July 8, 2016. The court denied 

the mother’s request for additional time and terminated the mother’s parental 

rights pursuant to Iowa Code section 232.116(1)(f). The mother now appeals.

II. Standard of Review.

We review termination-of-parental-rights proceedings de novo. In re 

M.W., 876 N.W.2d 212, 219 (Iowa 2016). “We are not bound by the juvenile 

court’s findings of fact, but we do give them weight, especially in assessing the 

credibility of witnesses.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). As to 

the juvenile court’s rulings concerning the admission of evidence, our review is 

for an abuse of discretion. In re E.H. III, 578 N.W.2d 243, 245 (Iowa 1998). 

III. Analysis.

Our review of termination of parental rights under Iowa Code chapter 232 

requires a three-step analysis. D.W., 791 N.W.2d at 706.

First, the court must determine if a ground for termination under 

section 232.116(1) has been established. If a ground for 

termination is established, the court must, secondly, apply the bestinterest framework set out in section 232.116(2) to decide if the 

grounds for termination should result in a termination of parental 

rights. Third, if the statutory best-interest framework supports 

termination of parental rights, the court must consider if any 

statutory exceptions set out in section 232.116(3) should serve to 

preclude termination of parental rights.
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Id. at 706-07 (citations omitted).

A. Grounds for Termination. Iowa Code section 232.116(1)(f) allows for 

termination where the child is four years of age or older, has been adjudicated a 

child in need of assistance (CINA), has been removed from the parent’s physical 

care for at least twelve of the last eighteen months, and there is clear and 

convincing evidence the child cannot be returned to the parent’s custody at 

present. The mother only contests the juvenile court’s finding that D.M. could not 

be returned to the mother’s care. In reaching that conclusion, the court noted, 

“[The mother] has inconsistently participated in the offered services and has had 

periods of improvement in some areas, but has been unable to demonstrate 

sustained progress in the areas of use of substances, improved judgment, and 

the ability to maintain a safe environment for a child.” The court then found:

If returned to the custody of his mother, [D.M.] would be subject to 

adjudicatory harms due to his mother’s continued poor decision 

making, her substance abuse and resulting incidents of unsafe 

supervision, unsafe associates and unsafe situations. . . . If 

returned to the custody of [the mother], [D.M.] would continue to 

remain a child in need of assistance.

On our de novo review, we agree grounds for termination under section 

232.116(1)(f) have been established. Although the mother made progress in the 

few months prior to the termination hearing, she continued to exhibit an inability 

to be truthful as recently as two days prior to the hearing. The mother also had 

not shown full accountability for her substance abuse issues, arguing she had not 

used methamphetamine despite positive drug tests to the contrary. Additionally, 

the mother had a ninety-day sentence remaining to be served on the 

methamphetamine charge and did not express a clear plan as to D.M.’s care 
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while incarcerated. The mother has not shown the sustained progress necessary 

to allow D.M. to be returned to her care without the threat that he would remain a 

CINA. 

B. Best Interests. In addition to finding grounds for termination under 

section 232.116(1), we must also determine termination is in D.M.’s best 

interests. See Iowa Code § 232.116(2) (“[T]he court shall give primary 

consideration to the child’s safety, to the best placement for furthering the longterm nurturing and growth of the child, and to the physical, mental, and emotional 

condition and needs of the child.”). 

At the time of the termination hearing, D.M.’s CINA case had been 

pending for approximately two and a half years—more than half of D.M.’s life. 

The DHS case manager and the mother both testified that D.M. is suffering from 

the confusion of not knowing where he will live long-term. Additionally, D.M. is 

doing well in foster-family-care placement with relatives of the mother, and the 

foster family expressed an intention to adopt D.M. upon termination of the 

mother’s parental rights. The foster family intends to encourage a continuing 

relationship between D.M. and his parents within monitored boundaries. 

“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 A.B., 815 N.W.2d 764, 777 (Iowa 2012) (quoting In re 

P.L., 778 N.W.2d 33, 41 (Iowa 2010)). After more than two years of uncertainty, 

it is in D.M.’s best interests to terminate the mother’s parental rights to allow D.M. 

to achieve permanency. We agree with the juvenile court that D.M.’s “safety, 
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health, and welfare can best be ensured by continued placement in foster family 

care until an adoptive placement is made.”

C. Exceptions. The mother contends the court should not terminate her 

parental rights because, due to the closeness of the parent-child relationship,

termination would be detrimental to D.M. See Iowa Code § 232.116(3)(c). 

However, we do not find the strength of the parent-child bond outweighs D.M.’s 

best interests and urgent need for permanency. See In re C.B., 611 N.W.2d 489, 

495 (Iowa 2000) (“Once the limitation period lapses, termination proceedings 

must be viewed with a sense of urgency.”). Further, D.M.’s placement with 

relatives will ensure a continuing relationship with the mother with appropriate 

supervision and within healthy bounds. We find the closeness of the parent-child 

bond does not serve to preclude termination of the mother’s parental rights.

D. Request for Additional Time. The mother also asserts the juvenile 

court should have awarded her additional time to achieve reunification. In its 

remarks at the close of the termination hearing the court explained its reasoning 

in refusing to grant additional time:

We try to preserve parental rights and get kids back to the parents, 

but we can’t keep working on this plan and keep [D.M.]’s life on 

hold endlessly. Right? We need to put a time limit on things. And 

you have actually been given a lot more time than most folks. 

When [D.M.] first came into the system he was less than two, . . . 

[D.M.] has spent a lot of his life outside of your care. And while I 

think you have made some progress, I don’t think that I could say 

today that I could return him to your care now or in the . . . near 

future without him continuing to be at the same risk of harm he was 

at when he was removed. And I also can’t find at this time that it 

would be in his best interest to continue to extend the time, 

because, again, we have given you a lot of time here to work on 

these issues.
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We agree that the mother has been given more than enough time to meet 

DHS expectations and achieve reunification. The mother’s progress has been 

shown to be akin to “one step forward and two steps back,” with the steps 

forward occurring only under the threat of termination. D.M. “simply cannot wait 

for responsible parenting. Parenting cannot be turned off and on like a spigot. It 

must be constant, responsible, and reliable.” A.B., 815 N.W.2d at 777 (quoting In 

re L.L., 459 N.W.2d 489, 495 (Iowa 1990)). We find the juvenile court did not 

improperly deny the mother’s request for additional time.

E. Exhibit 61. Last, the mother argues the court erred in admitting Exhibit 

61, a report containing the results from a drug test completed in relation to her 

criminal charges in Wisconsin. The attorney for the mother objected to 

admission of the exhibit on the basis of hearsay and unfair prejudice. However, 

even assuming the court abused its discretion in admitting Exhibit 61, any error 

was harmless because on our de novo review we have determined grounds for 

termination are established without consideration of the exhibit in question. See 

In re T.M., No. 06-0124, 2006 WL 782836, at *2 (Iowa Ct. App. Mar. 29, 2006).

IV. Conclusion.

Because grounds for termination have been established, termination is in 

D.M.’s best interests, no exception applies to preclude termination, and the 

court’s refusal to grant the mother additional time was not improper, we affirm the 

termination of the mother’s parental rights.

AFFIRMED.