In The Interest Of D.W., Minor Child, A.M.W., Mother

IN THE SUPREME COURT OF IOWA No. 10–1230

Filed December 17, 2010

IN THE INTEREST OF D.W., Minor Child,

A.M.W., Mother, Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Scott County, John G.

Mullen, Judge.

State seeks further review of court of appeals’ decision reversing

juvenile court order terminating mother’s parental rights. DECISION OF

COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT

AFFIRMED.

Stephen W. Newport of Newport & Newport, P.L.C., Davenport, for

appellant.

Thomas J. Miller, Attorney General, and Janet L. Hoffman and

Bruce L. Kempkes, Assistant Attorneys General, for appellee.  2

CADY, Justice.

In this case, the State requests further review of the court of

appeals’ decision reversing an order by the juvenile court terminating a

mother’s parental rights. On our de novo review, we find the district

court properly terminated the mother’s parental rights. As a result, we

vacate the decision of the court of appeals and affirm the decision of the

juvenile court.

I. Background Facts and Proceedings.

A.W. is the mother of D.W., who was born on June 26, 2009. A.W.

was twenty-two years old at the time of D.W.’s birth. The Iowa

Department of Human Services (DHS) determined D.W. was at risk for

neglect and abuse due to A.W.’s history with DHS in two previous child-

in-need-of-assistance (CINA) cases that resulted in the termination of her

parental rights with respect to her two other children. Accordingly, DHS

provided services and assistance to A.W. after D.W.’s birth and continued

to monitor D.W.’s safety.

In August of 2009, DHS requested an emergency removal order

when A.W. left D.W. in the care of D.W.’s intoxicated father, D.T.,

following a domestic dispute between the couple. D.T. had a history of

substance abuse and domestic violence that formed the basis for the

prior termination of parental rights involving the two older children. The

juvenile court ordered the removal of D.W. from the home, and he has

been in foster care since that time. 1

Following the emergency removal, D.W. was adjudicated in need of

assistance due to his parents’ failure to provide appropriate care and

1D.T. did not make any effort throughout the reunification period to retain the right to care for D.W., and he does not appeal the juvenile court’s order terminating his rights.  3

supervision. After the CINA adjudication, he was placed with the same

foster home into which his two siblings had been adopted. A.W. was

granted supervised visitation with D.W. three times per week.

Throughout the period of attempted reunification, A.W. worked with DHS

to develop the necessary skills to care for D.W. Although A.W.

cooperated fully with the services DHS offered her, the case progress

reports reflected continuous concern that A.W. was not retaining and

applying the information given to her to improve her parenting skills.

The case reports cited A.W.’s low IQ as the basis of her substandard and

inconsistent parenting of D.W.

Ultimately, DHS concluded the goal of permanently reuniting D.W.

with A.W. could not be met. On March 29, 2010, the juvenile court

entered an order approving DHS’s modified permanency plan for

adoption. A termination petition was filed in April of 2010, nearly eight

months after D.W.’s removal. The grounds for termination alleged A.W.’s

failure to provide a safe home for D.W. due to her inability to retain

information about proper care for D.W.’s evolving needs, along with her

past history of neglect, substance abuse, and unhealthy relationships.

At trial, the evidence indicated that, although a nurturing and

loving parent during visits, A.W. consistently struggled with long-term

planning and safety evaluations for D.W. DHS service providers’

testimony and case progress reports showed that A.W. failed to meet

D.W.’s evolving developmental needs, such as spoon-feeding and

providing D.W. with developmental exercise, age-appropriate toys, and

teething relief. At the end of several visits shortly after removal, A.W.

had difficulty remembering instruction she had been given on how to

lock the car seat properly.  4

The evidence at trial also reflected that A.W. struggled with age-

appropriate expectations for D.W., became frustrated easily, and lacked

sufficiently stable housing. On one occasion, A.W. tried to teach D.W. to

descend a steep stairway facing forward. On another occasion, A.W.

placed D.W. in a sitting position on a couch unsupported and became

frustrated when D.W. fell over. A.W. had difficulty remembering to feed

D.W. with a spoon rather than a bottle after being reminded on

numerous occasions. A.W. lived with her mother and her mother’s fiancé

and tended to blame her mother when visitation problems occurred.

A.W. also tended to rely heavily on the service providers and her mother

to watch D.W. while she was attending to other tasks, and she asked

others to make decisions on long-term planning issues. A.W. often left

home to stay with a cousin after becoming “bored at home,” and this

arrangement caused A.W. to be late for visits on several occasions.

Throughout the reunification efforts, A.W. expressed a desire to move out

of her mother’s home, but was unable to show a financial ability to do so

while providing stability for D.W. DHS service providers testified that,

although A.W. listened to the advice she was given, she failed to apply it

consistently without being reminded by a DHS worker.

After the contested hearing on July 6, 2010, the juvenile court

ordered termination of A.W.’s parental rights. The court found

termination appropriate pursuant to Iowa Code section 232.116(1)(d), (e),

(g), (h), (i), and (l) (2009). A.W. appealed, arguing that the juvenile court

had inappropriately based its order solely on A.W.’s mental disability

rather than her ability to keep D.W. safe. She also claimed that

termination is not in D.W.’s overall best interests because of a strong

bond between them. The court of appeals reversed the juvenile court’s

order for termination. It found inadequate evidence in the record of an  5

inability to appropriately parent D.W. The majority of the court of

appeals found the statutory requirements for termination had not been

met and that the evidence of A.W.’s ability to consistently meet D.W.’s

general basic needs, along with A.W.’s affectionate and nurturing

behavior towards D.W., outweighed the “minor and intermittent safety

issues” that arose throughout the case.

The State sought, and we granted, further review.

II. Standard of Review.

Our review of termination of parental rights proceedings is de novo.

In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). 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 C.B., 611 N.W.2d 489, 492

(Iowa 2000). We will uphold an order terminating parental rights if there

is clear and convincing evidence of grounds for termination under Iowa

Code section 232.116. Id. Evidence is “clear and convincing” when there

are no “serious or substantial doubts as to the correctness or

conclusions of law drawn from the evidence.” Id.

III. Analysis.

Termination of parental rights under chapter 232 follows a three-

step analysis. In re P.L., 778 N.W.2d at 39. First, the court must

determine if a ground for termination under section 232.116(1) has been

established. Id. If a ground for termination is established, the court

must, secondly, apply the best-interest framework set out in section

232.116(2) to decide if the grounds for termination should result in a

termination of parental rights. Id. 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. Id.  6

A. Grounds for Termination. The juvenile court cited six

independent grounds for termination under Iowa Code section

232.116(1). On appeal, we may affirm the juvenile court’s termination

order on any ground that we find supported by clear and convincing

evidence. After reviewing the record in this case de novo, we conclude

grounds for termination exist under sections 232.116(1)(d) and

232.116(1)(h).

Under section 232.116(1)(d), termination may be ordered if the

child was previously adjudicated a CINA and if, after services have been

offered to the parents, the circumstances that led to the adjudication

continue to exist. Iowa Code § 232.116(1)(d). In this case, it is

undisputed that D.W. was adjudicated a CINA due to the risk of neglect

based on A.W.’s lack of supervision. Moreover, the evidence established

this risk continued to exist at the time of the termination hearing.

Service providers working with A.W. found she was not responding to

services to overcome those circumstances that led to the CINA

adjudication. Not only did she fail to display an ability to properly care

for D.W., she did not have a support system in place to help her improve.

Instead of offering consistent and trustworthy support, her mother,

brothers, and cousin exhibited questionable behavior during the removal

and visitation period. Moreover, A.W. displayed a pattern of behavior

that revealed a lack of a basic understanding of D.W.’s need for reliable

adult care. For example, on more than one occasion, A.W. was not

present at her mother’s home to meet D.W. when he arrived for a

scheduled visitation because she had become bored and left the home.

Section 232.116(1)(h) provides that termination may be ordered

when there is clear and convincing evidence that a child under the age of

three who has been adjudicated a CINA and removed from the parents’  7

care for at least the last six consecutive months cannot be returned to

the parents’ custody at the time of the termination hearing. Iowa Code

§ 232.116(1)(h). D.W. was less than a year old when he was removed

and placed in foster care for over six months while service providers

worked with A.W. The record does not provide any evidence that D.W.

could safely be returned home with A.W. at the time of the termination

hearing. The service providers and the guardian ad litem were unable to

recommend reunification, despite A.W.’s marginal improvements after

services were received. A.W. did display some improvement in some

areas and was currently committed to sobriety. While this evidence

provides some hope A.W. might eventually be able to parent D.W. safely

and consistently in her home, our legislature has carefully constructed a

time frame to provide a balance between the parent’s efforts and the

child’s long-term best interests. In re C.B., 611 N.W.2d at 494. 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.”). A.W. has struggled to

overcome her parenting deficiencies for over three years and has been

unable to do so. We find clear and convincing evidence that grounds for

termination exist under Iowa Code section 232.116(1)(h).

B. Factors in Termination. Having found statutory grounds for

termination exist, we turn to further consider the circumstances

described in section 232.116(2) that drive the actual decision-making

process. In deciding whether to terminate parental rights based on a

particular ground, we must give primary consideration to “the child’s  8

safety, . . . the best placement for furthering the long-term nurturing and

growth of the child, and . . . the physical, mental, and emotional

condition and needs of the child.” Iowa Code § 232.116(2). This

assessment may include whether “the parent’s ability to provide the

needs of the child is affected by the parent’s mental capacity or mental

condition.” 2 Id. § 232.116(2)(a). Additionally, we may consider whether

the child has been placed into a foster family, the extent to which the

child has been integrated into the family, and whether the foster family is

able and willing to adopt the child. Id. § 232.116(2)(b). Additional

factors are identified under the statute to further assess the integration

of the child into the foster family. Id.

The mental capacity of a parent and the existence of a preadoptive

foster family in the life of a child, which are included in the statutory

best-interest analysis, are relevant considerations in evaluating the

safety of the child, the best placement for optimal growth of the child,

and the physical, mental, and emotional condition and needs of the

child. Thus, the termination analysis considers the ability of the parent

to properly care for the child and the presence of another family to

provide the care.

Upon our de novo review, we find the considerations guiding the

decision support termination. The case progress reports and DHS

service providers’ testimony indicate A.W. has difficulty overcoming her

intellectual impairment to adequately provide a safe and reliable home

for D.W. Furthermore, A.W. was unable to care for D.W. without relying

heavily on service providers and her mother. She frequently became

angry while attempting to provide for D.W.’s needs and developing

2Section 232.116(2)(a) also includes a parent’s imprisonment for a felony as an additional factor to consider.  9

mobility. A.W. demonstrated a sustained inability to understand D.W.’s

developmental stages with age-appropriate expectations. She reported to

DHS staff that “babies need to learn how to be considerate of the needs

of the mother” and that one-year-old children should be able to

comprehend and evaluate safety concerns. Despite DHS efforts, A.W.

was also unable to understand D.W.’s developing nutritional needs. She

frequently forgot items she was told D.W. needed during his next visit.

While we recognize that lower mental functioning alone is not

sufficient grounds for termination, in this case it is a contributing factor

to A.W.’s inability to provide a safe and stable home for D.W. State ex rel.

Leas, 303 N.W.2d 414, 422 (Iowa 1981); see also In re Wardle, 207

N.W.2d 554, 563 (Iowa 1973) (“Ordinarily, mental disability in a parent

does not operate in a vacuum so far as the best interest and welfare of

his child is concerned but is usually a contributing factor in a person’s

inability to perform the duties of parenthood according to the needs of

his child.”). As D.W. continues to grow and develop, his need for

physical, mental, and emotional guidance will only become more

challenging. In assessing whether A.W. will be able to manage these new

challenges independently, “[w]e gain insight into the child’s prospects by

reviewing evidence of the parent’s past performance—for it may be

indicative of the parent’s future capabilities.” In re M.S., 519 N.W.2d

398, 400 (Iowa 1994). A.W. has been involved with DHS over the last

four years, including the targeted involvement in D.W.’s case over the

last eighteen months. The services provided to A.W. have not improved

her ability to provide for D.W.’s welfare to a point sufficient to have semi-

supervised or unsupervised visits with D.W. We find A.W.’s current

inability to anticipate and provide for her son’s long-term welfare is a

rocky foundation in which a child cannot find permanency.  10

Additionally, we note D.W. was placed in a preadoptive foster home

where he has regularly resided since he was two months old with his two

siblings. D.W. has successfully developed in this home, and all evidence

suggests that he will continue to do so. We are convinced that A.W. has

not developed the skills necessary to cope with D.W.’s critical needs in

the statutory time frame allotted to her and accordingly find the factors

of section 232.116(2) support termination.

C. Exceptions to Termination. Finally, we give consideration to

whether any exception in section 232.116(3) applies to make termination

unnecessary. In this case, the most relevant exception is whether

“[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 parent-

child relationship.” Iowa Code § 232.116(3)(c). We do not find such

evidence exists here. Although it is clear that A.W. loves her son, our

consideration must center on whether the child will be disadvantaged by

termination, and whether the disadvantage overcomes A.W.’s inability to

provide for D.W.’s developing needs. Over the course of D.W.’s young

life, A.W. has only had closely supervised visits with him. Otherwise,

D.W. has been in the consistent care of his foster family and daycare

providers. We do not find that termination would be detrimental to D.W.

based solely on the parent-child relationship.

IV. Conclusion.

We vacate the decision of the court of appeals and affirm the

juvenile court order terminating the parental rights of A.W.

DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.