In the Interest of H.S. And S.N., Minor Children, V.R., Mother

IN THE SUPREME COURT OF IOWA

No. 11–0305

Filed September 2, 2011

IN THE INTEREST OF H.S. and S.N.,

Minor Children,

V.R., Mother,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Constance

Cohen, Associate Juvenile Judge.

A father seeks further review after the court of appeals reversed a

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

OF THE COURT OF APPEALS VACATED AND JUDGMENT OF THE

JUVENILE COURT AFFIRMED AS TO H.S.; DECISION OF THE COURT

OF APPEALS AFFIRMED AS TO S.N.

Katherine A. Daman of The Powell Law Firm, P.C., Norwalk, for

appellant mother.

Michael J. Bandstra of Bandstra Law Office, Des Moines, for

appellee father of H.S.

William E. Sales III of Sales Law Firm, P.C., Des Moines, for

appellee father of S.N.

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Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant

Attorney General, John P. Sarcone, County Attorney, and Stephanie

Brown and Andrea Vitzthum, Assistant County Attorneys, for appellee

State.

John P. Jellineck, Des Moines, attorney and guardian ad litem for

minor children.

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MANSFIELD, Justice.

We granted further review in this case to address the extent to

which the elimination of the potential availability of child support is

relevant in an Iowa Code section 232.116 (2009) termination of parental

rights proceeding. We conclude the elimination of possible child support

should not affect termination if it is otherwise in the child’s best interests

as defined by section 232.116(2).

In this case, the juvenile court terminated the noncustodial

mother’s parental rights to two children under section 232.116, but the

court of appeals reversed after giving weight to the fact that termination

would end the mother’s child support payments. On our review, we

disagree with the court of appeals and find the juvenile court’s analysis

of the facts and the law persuasive. Therefore, we vacate the opinion of

the court of appeals and affirm the judgment of the juvenile court as to

the child whose father filed a timely application for further review.

I. Background Facts and Proceedings.

Valarie is the mother to two daughters, S.N. (born November 2003)

and H.S. (born May 2007). Steven is the biological father of S.N., and

Charles is the biological father of H.S. Before October 2009, Valarie

served as the primary custodian and caregiver to the two children, while

Charles and Steven exercised visitation through informal agreements.

During a visit in late October 2009, Charles discovered several red

marks and bruises to H.S.’s buttocks, lower back, and upper legs while

changing her diaper. Charles immediately contacted the police and took

H.S. to the hospital. Charles testified that H.S. told him at the hospital

that Valarie’s husband, Tony, caused the injuries by spanking H.S. for

wetting herself. The records reflect that H.S. told both the treating

emergency room physician and police investigators that “Tony did it.”

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The abuse was reported to the Iowa Department of Human

Services (DHS), which initiated a child protective assessment. During

the assessment, Valarie denied causing the injuries or having any

knowledge as to their origin. Valarie also expressed certainty that Tony

was not responsible and instead suggested that Tony’s thirteen-year-old

daughter might have caused H.S.’s injuries. DHS subsequently

determined the physical abuse report was founded, identifying Tony as

the perpetrator.

On November 3, 2009, the juvenile court entered a temporary

removal order placing H.S. in Charles’ custody and S.N. in Steven’s

custody. The next day, the State filed a petition seeking to have H.S. and

S.N. adjudicated children in need of assistance (CINA) under Iowa Code

sections 232.2(6)(b) and .2(6)(c)(2). Removal was confirmed by

stipulation of the parties at an uncontested hearing on November 10.

The children remained in the custody of their fathers, and services were

initiated including family team meetings, family safety risk and

permanency services, and supervised visitation. Valarie also attended

therapy and parenting classes.

Contested CINA adjudication hearings were held on December 16,

2009, and January 29, 2010. At the first hearing, Valarie remained

adamant that Tony had not caused H.S.’s injuries. However, by January

29, Valarie had changed her position and accepted that Tony had

physically abused H.S. Accordingly, Valarie stipulated to the children

being adjudicated CINA and further testified that she planned to divorce

Tony and move into a separate residence.

Valarie moved into a new residence in February 2010 and filed for

a divorce from Tony. However, at disposition proceedings held in March

and May 2010, Charles testified that he continued to see Valarie and

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Tony together in the community. He presented photographs showing

Tony’s car parked outside of Valarie’s new home. Valarie disputed

Charles’ testimony; she testified that she had no further contact with

Tony after January 29 and that her sister had been the one using Tony’s

car. Based on continued concerns over Tony’s possible presence, the

children remained in the custody of their fathers, and Valarie’s visits

remained supervised.

In May, Valarie, Charles, and Steven stipulated to a case

permanency plan and agreed to pursue a shared parenting plan in

district court. Accordingly, the juvenile court authorized concurrent

jurisdiction to allow for the litigation of custody and visitation. See Iowa

Code § 232.3(2). Valarie also signed a release and satisfaction of Child

Support Recovery and agreed to pay $100 per month to Charles and $50

per month to Steven.

In June 2010, the parties agreed to a visitation schedule for

Valarie which included unsupervised weekend and overnight visits.

However, following H.S.’s first overnight stay, it was revealed that Valarie

had taken H.S. to visit Tony’s mother. 1 At this time, DHS made it clear

that only persons preapproved by DHS were allowed around the children.

Despite these concerns, the unsupervised and overnight visits continued,

and by August, the parties were actively working to craft a shared

custody plan that could be presented to the district court.

Implementation of a long-term custodial arrangement stalled in

August when it was suggested at a family team meeting that Valarie

might be pregnant. Valarie vigorously denied the allegation, but several

weeks later she informed DHS that she was in fact pregnant and that

1Tony was in prison during this time.

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Tony was one of two possible fathers. 2 Based upon the expected delivery

date, Valarie admitted that conception likely took place in early March,

even though she had previously testified she had had no contact with

Tony since January 29. Valarie and Tony’s divorce was finalized on

August 27.

Following a contested permanency hearing on September 15, the

juvenile court entered an order transferring sole legal custody of H.S. and

S.N. to Charles and Steven, respectively. See id. § 232.104(2)(d)(2).

However, the juvenile court initially found compelling reasons not to

terminate the parental rights of Valarie due to the children’s placement

with a parent and ongoing financial support from Valarie.

Charles and Steven disagreed with the permanency order and

subsequently filed petitions to terminate Valarie’s parental rights

invoking chapter 232. 3 Charles filed his petition on September 17, while

Steven filed his on October 15. Shortly after Charles filed, Valarie

2The other possible father was a man whom Valarie could not identify by name.

Valarie later told a home service provider that Tony “probably” was the father. At the

termination trial, Valarie testified that Tony’s being the father was a “higher possibility.”

Valarie also continued to maintain she had “no idea” she was pregnant as late as five

months into the pregnancy.

3Under chapter 232, only “[a] child’s guardian, guardian ad litem, or custodian,

the department of human services, a juvenile court officer, or the county attorney may

file a petition for termination of the parent-child relationship and parental rights with

respect to a child.” Iowa Code § 232.111(1); In re H.J.E., 359 N.W.2d 471, 474 (Iowa

1984) (stating a father is “not a party authorized to file a petition seeking termination

under chapter 232”). Chapter 600A, not chapter 232, authorizes the filing of

termination petitions by parents. See Iowa Code § 600A.5(1)(a). However, when (as

here) the children have the status of CINA, any termination proceedings must be

conducted pursuant to chapter 232. See id. §§ 232.109, 600A.5(2); H.J.E., 359 N.W.2d

at 474. According to the juvenile court, both the State and the guardian ad litem

“though not originally in support of the petitions, joined in the fathers’ requests to

terminate the parental rights of the mother.” The record contains a written statement

by the guardian ad litem in support of termination. We do not find in the record any

indication that the State actually joined in the petitions for termination, although it

made several appellate filings in support of the fathers and no one disputes that it

joined. For purposes of this appeal, we will assume the State joined in the fathers’

petitions for termination of Valarie’s parental rights.

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contacted DHS and initiated a child protective assessment against him

alleging physical abuse. DHS determined the assessment was

unsubstantiated. The juvenile court later found the allegations to be

“without merit” and “motivated by [Valarie’s] own ill-conceived agenda

rather than the welfare of her children.”

In early October, DHS reduced Valarie’s visitation to two semi-

supervised visits per week after it was discovered that Valarie had

allowed an unknown individual to be present during a visit.

By the end of October, continued efforts to formulate a long-term

visitation plan were abandoned when Valarie announced at a family team

meeting that she had hired a private investigator who had evidence that

Charles was dealing drugs out of his home. In light of the allegation,

Charles sought to depose the private investigator. The juvenile court

granted the request. Although the deposition transcript was entered into

evidence, it was not made a part of the record. Nonetheless, the parties

do not dispute that, during his deposition, the private investigator stated

he was never hired by Valarie and denied investigating or having any

knowledge of Charles or his activities.

A five-day trial on the petitions to terminate Valarie’s parental

rights was held in November and December 2010. Counsel appeared for

each father, for the mother, and for the children. The county attorney’s

office also participated in the hearing.

Charles testified that although he never initiated a DHS referral,

his concerns over Valarie’s parenting had emerged early in H.S.’s life.

Charles indicated that H.S. had a rash “that was worse than a blister . . .

all the way around her neck” caused by Valarie’s propping a bottle and

allowing formula to drip down and collect in a ring around H.S.’s neck.

Charles also testified that Valarie never arranged for dental care for H.S.

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and that H.S. had three untreated cavities when custody was transferred

to him. In addition, Charles testified that Valarie often sent dirty bottles

and clothes to Charles’ house, provided an inadequate car seat for

transporting H.S., and gave H.S. lip gloss that was inappropriate for a

young child.

Charles’ wife Amanda testified that she was prepared to adopt H.S.

if Valarie’s parental rights were terminated. Assuming that H.S.’s safety

needs were being met, both Charles and Amanda confirmed that Valarie

would continue to have a role in H.S.’s life. Charles also committed to

maintaining contact between H.S. and her older sister, S.N.

Steven, the father of S.N., also testified. Steven explained that he

was living with a paramour and that he, his paramour, and his

paramour’s mother were responsible for S.N.’s care. Steven said that

Charles’ and Amanda’s testimony was accurate as far as he was

concerned, although he added, “I don’t have a problem with Valarie when

it comes to my kid ever . . . .” Steven testified that after DHS became

involved, he and Charles got to know each other and began talking to

each other about Valarie. Like Charles, Steven stated that it would be

his intent to allow contact between the child and Valarie to continue even

if Valarie’s parental rights were terminated.

Valarie testified that she did not intend to resume her relationship

with Tony. Valarie acknowledged (contrary to prior statements) that

Tony had physically abused H.S. and that her earlier testimony about

having had no contact with Tony after January 2010 was false. However,

she downplayed her post-January contacts, claiming she had only one

encounter with Tony that could have resulted in her current pregnancy.

As she explained:

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I had been drinking, and he had called me, wanted to know

if we could meet to talk about getting the rest of his stuff out

of the property. I said, Yes, that’s fine . . . . And, obviously,

one thing happened to another.

Valarie made clear that her goal was to obtain primary physical

care of both H.S. and S.N. She added that both fathers owed child

support to her from the prior time period when she was caring for both

girls.

Both DHS caseworkers testified that termination was in the

children’s best interest. As one of them elaborated:

Well, the children are bonded to their mother and clearly

they love her and she loves them and there has been some

parental progress on Valarie’s part. I do think, looking long

term, that it’s best for parental rights to be terminated in

regards to Valarie and the girls just because there are so

many ongoing issues that could create a lot of instability for

the next several years and I don’t feel that is fair. And

there’s no way, at this point, to ensure their safety. Valarie

continues to make poor decisions about relationships despite

understanding expectations . . . . I have every reason to

believe that [Valarie and Tony’s] relationship would probably

resume or continue and there’s just no way to ensure

through this capacity that the girls would be safe.

At the end of trial, the attorney for the children/guardian ad litem

filed a written statement supporting termination. His conclusions were

that “[Valarie] will never sever her ties with [Tony],” that Tony will be

back in the girls’ lives upon his release from prison, and that it would not

be in the girls’ best interests “to ever face that possibility.” Yet he also

emphasized his hope that some sort of relationship could be maintained

because it is obvious that Valarie and H.S. and S.N. “share a close bond.”

The service providers who testified were unable to support

termination, although they recognized ongoing concerns with Valarie’s

decisionmaking. Finally, and despite noting that Valarie “may not be

able to keep her children safe when they are with her,” H.S.’s therapist

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also cautioned against termination, arguing that “the children’s bond

with Valerie [sic] is strong and the children continue to receive positive

nurturing from a relationship with Valerie [sic].”

On February 11, 2011, the juvenile court entered an order

terminating Valarie’s parental rights to both children. The court

concluded the statutory grounds for termination had been established

under Iowa Code section 232.116(1)(d), (f), and (i) for S.N., and under

section 232.116(1)(h) and (i) for H.S. In a detailed review of the facts, the

court noted Valarie had lied about her continuing contact with Tony and

about being pregnant (likely with him), had made false claims that she

had hired a private investigator who had determined Charles was

engaged in drug dealing, and generally lacked insight and honesty. The

juvenile court added that Valarie “has lost trust not only with providers,

but with her children. As stated in the children’s therapist’s report of

September 30, 2010, ‘Valarie has lost [H.S.’s] trust.’ ”

In analyzing whether termination was in the children’s best

interests, the juvenile court explained:

[T]ermination of parental rights of one parent only is a severe

remedy in a case where the permanency plan is for the

fathers to retain custody of the children. The salient issue in

this case is whether or not termination of parental rights is

in the children’s best interest and would be less detrimental

than the harm that would be caused to them by continuing

the parent/child relationships.

Sadly, the Court must conclude that the evidence

supports no other finding than a severance of Valarie[’s]

parental rights being in the children’s best interest. Her

conduct has indicated that she has not, cannot, and will not

place her children’s safety and well-being first. She is far

more interested in her own agenda than what is in her

children’s best interest. After more than fourteen months,

after making some progress, her contact with the children

must be professionally supervised to ensure their safety, yet

she now indicates she would seek primary physical custody

in concurrent jurisdiction litigation. To continue the

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parent/child relationships would expose the children to

ongoing strife, litigation, and contention that would

undermine their safety, well-being and permanency.

....

Ultimately, if concurrent jurisdiction orders were put

in place and the Juvenile Court case were to close, [Charles]

and [Steven] would have the ongoing burden of monitoring

family contact, and repeatedly litigating its terms until the

children were eighteen. If professional supervision were

required long-term, additional financial stress may fall upon

the fathers. Under this scenario, the children would not

have the safety and permanency they need. While it was

hoped that the parties develop a visitation plan that would

assure the children’s ongoing safety, there simply is no such

plan. Nor is there reason to believe additional time and

effort to work out such a plan would be successful. While

the children’s bond with their mother is important, their

safety is more important. Valarie simply cannot be trusted

to protect them as evidenced by her prior acts and

omissions.

The Court is satisfied that the children’s fathers would

not only maintain sibling contact, but assure Valarie has a

safe role in their lives. The only way to guarantee the

stability and long-term nurturing and trust building that

these children need after [H.S.] was so severely injured on

Valarie’s watch is by way of termination of parental rights of

Valarie . . . . It is only through termination that these

children will have the safety and stability they need and

deserve.

Accordingly, the juvenile court entered an order terminating

Valarie’s parental rights to S.N. and H.S. Valarie appealed, and the case

was transferred to the court of appeals.

On May 11, 2011, the court of appeals filed its decision. The court

of appeals agreed that the statutory grounds for termination were met,

but disagreed with the juvenile court’s conclusion that termination was

in the best interests of the children. The court of appeals recognized the

concern that Valarie might allow Tony to reenter her life and the

likelihood of contentious custody proceedings in the future, but

concluded these reasons do not “outweigh the compelling reasons not to

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terminate[, which] include Valarie’s ongoing financial support and the

placement of the children in the sole custody of their fathers.” The court

went on:

Termination of Valarie’s rights leaves the responsibility

for the children’s financial needs with a single parent or the

state. The children’s needs would be better met by requiring

the mother to pay child support than by terminating her

parental rights.

Accordingly, the court of appeals reversed the juvenile court’s order

terminating Valarie’s parental rights to H.S. and S.N.

Charles filed a timely application for further review on May 19.

However, Steven did not. Instead, on June 13, Steven filed a “Notice to

the Court” requesting to join in Charles’ application for further review.

We granted Charles’ application for further review on June 16 and

requested further briefing from the parties. See Iowa R. App. P.

6.1103(6). The State, Charles, and Valarie all submitted supplemental

briefs. Along with her briefing, Valarie filed a request that procedendo be

issued in S.N.’s case, arguing Steven’s effort to obtain further review was

untimely.

II. Timeliness of Steven’s Request for Further Review.

Before we reach the merits of this termination proceeding, we must

first determine whether the mother’s parental rights to both children are

properly before us. Valarie opposed further review of the court of appeals

decision concerning her parental rights to S.N. by filing a request for

procedendo. In that filing, Valarie argued Steven’s joinder was outside

the deadline for applications for further review.

Under our rules, unless otherwise ordered by the court of appeals,

no procedendo from a court of appeals action shall issue for “[s]eventeen

days after an opinion is filed in a chapter 232 termination of parental

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rights or CINA case, nor thereafter while an application for further review

by the supreme court is pending.” Iowa R. App. P. 6.1208(2)(a). Because

Charles timely filed for further review, “an application” was pending

before our court.

Similarly, according to the rules, no procedendo from an action of

our court shall issue (unless otherwise ordered by our court) for twenty-

one days after “an opinion of the supreme court is filed” or seventeen

days after “an order dismissing the appeal is filed.” Id. 6.1208(1)(a)–(b).

Thus, on their face, our rules seem to contemplate one procedendo per

appeal and do not appear to envision “partial” procedendos, at least

unless “otherwise ordered.”

Nonetheless, Valarie’s request for procedendo clearly raises the

timeliness of Steven’s request for further review. When we take a case on

further review, we have the discretion to review any issue raised on

appeal regardless of whether a party expressly asserts such issue in an

application for further review. Hills Bank & Trust Co. v. Converse, 772

N.W.2d 764, 770 (Iowa 2009). Yet in Peppmeier v. Murphy, 708 N.W.2d

57 (Iowa 2005), we expressly distinguished our consideration of issues

from our ability to grant relief to parties who did not seek further review.

In that case, the plaintiff sued an agent and his principal, the latter on

the basis of respondeat superior. Peppmeier, 708 N.W.2d at 59. The

district court granted summary judgment to both defendants. Id. at 61.

Subsequently the court of appeals upheld summary judgment as to the

agent, but reversed it as to the principal. Id. The principal then sought

further review of the court of appeals decision, but the plaintiff did not.

Id. After granting further review, we held that the portion of the court of

appeals decision affirming summary judgment in favor of the agent had

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become final—since the plaintiff had not sought further appellate review.

Id. at 62. We explained:

Peppmeier [the plaintiff] did not file an application for

further review to challenge the court of appeals holding that

the district court properly granted summary judgment in

favor of [the agent]. Such failure means this holding by the

court of appeals is a final adjudication that [the agent] is not

liable.

We are mindful of our rule that allows us to review any

or all issues raised on appeal or to limit our review to just

those issues brought to our attention by the application for

further review. We see no problem applying the rule when

we have only two parties, but here we have one plaintiff and

two defendants, one of whom has been relieved of liability.

Under these circumstances, we think Peppmeier should have

filed an application for further review to preserve her issues

as to [the agent]. We consider her failure to do so a waiver.

A contrary decision would amount to blindsiding [the agent],

who took no further part in the appeal process after the

court of appeals decision, believing, we are convinced, that

Peppmeier had indeed waived any issues as to him.

Id. (citation omitted). Having determined that the court of appeals

decision regarding the agent “became final when [the plaintiff] did not

seek further review on this issue,” we then reinstated summary judgment

in favor of the principal on the basis of res judicata, since the claim

against the principal was based entirely on respondeat superior. Id. at

64–66.

We think the same reasoning applies here. Because Steven did not

file a timely application for further review, the court of appeals decision

“became final” as to him. See id. at 64. It is true that Steven tried to join

Charles’ application for further review several weeks after the deadline

for seeking further review had passed. But this strikes us as wholly

inadequate. If a party has to file his or her own application for further

review to avoid a decision of the court of appeals becoming final as to

him or her, as Peppmeier holds, it logically follows that the party has to

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file a timely application. The timeliness requirement is jurisdictional.

Hills Bank & Trust Co., 772 N.W.2d at 771.

Under Iowa law, an application for further review in a termination

case “shall not be granted by the supreme court unless filed within ten

days following the filing of the decision of the court of appeals.” Iowa

Code § 602.4102(4)(a); see also Iowa R. App. P. 6.1103(1)(a) (stating that

an application for further review in a termination case “shall be filed

within 10 days following the filing of the court of appeals decision”). The

legislature has enacted a single exception to this deadline, by providing

that the court of appeals shall extend the time for filing of an application

if it determines “that a failure to timely file an application was due to the

failure of the clerk of the court of appeals to notify the prospective

applicant of the filing of the decision.” Iowa Code § 602.4102(5); see also

Iowa R. App. P. 6.1003(1)(e). That exception does not apply here.

We decline to speculate on the reasons why Steven failed to timely

seek further review and simply note a few obvious points. S.N. is several

years older than H.S. and, unlike H.S., was not established to be a victim

of physical abuse by Valarie’s ex-husband; Steven and S.N. are part of a

different family than Charles and H.S.; and the trial testimony revealed

considerably less antagonism between Steven and Valarie than between

Charles and Valarie.

For the foregoing reasons, we hold that the court of appeals

decision reversing the termination of Valarie’s parental rights as to S.N.

became final, and we affirm that result. We now turn to Charles’

application for further review concerning H.S.

III. Standard of Review.

We review proceedings to terminate parental rights de novo. In re

J.E., 723 N.W.2d 793, 798 (Iowa 2006). We give weight to the juvenile

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court’s factual findings, especially when considering the credibility of

witnesses, but we are not bound by them. Id.

IV. Parental Financial Support and the “Best Interests” Test.

Our courts have long held that all parents are legally obligated to

support their children. Anthony v. Anthony, 204 N.W.2d 829, 833 (Iowa

1973); Dawson v. Dawson, 12 Iowa 512, 514 (1861) (“The duty of the

parent to maintain his offspring until they attain the age of maturity is a

perfect common law duty.”). This support obligation continues during

juvenile court proceedings, even after a child has been removed from

parental custody or has been determined to be a CINA. See Iowa Code

§ 232.2(47) (defining “[r]esidual parental rights and responsibilities” as

“those rights and responsibilities remaining with the parent after transfer

of legal custody or guardianship of the person of the child[, and] include

but are not limited to the right of visitation, the right to consent to

adoption, and the responsibility for support”); see also In re Karwath,

199 N.W.2d 147, 150 (Iowa 1972) (addressing a father’s residual parental

rights to make medical decisions while his children are in the care and

custody of the State). However, when parental rights are terminated in

Iowa, a parent’s support obligation ends. See Iowa Code § 232.2(57)

(defining the “[t]ermination of the parent-child relationship” as “the

divestment by the court of the parent’s and child’s privileges, duties, and

powers with respect to each other”). 4

4We recognize other states allow for the continuation of support past the

termination of parental rights. However, those states do so explicitly by statute or by

judicial interpretations of statutory language that significantly differs from our own.

See, e.g., Ariz. Rev. Stat. Ann. § 8–539 (Westlaw through 1st Reg. Sess. and 3d Special

Sess. 2011) (providing support until a final order of adoption is entered); Me. Rev. Stat.

Ann. tit. 22, § 4056(5) (Westlaw through 2011 Reg. Sess. Ch. 378) (providing that if the

parent has been convicted of a crime against the child, the court may order “a lump

sum payment to assist in the future financial support of the child”); 10A Okla. Stat.

Ann. § 1–4–906(B) (West, Westlaw through 1st Reg. Sess. 2011) (providing support until

a final decree of adoption has been entered); Tex. Fam. Code Ann. § 154.001(a-1) (West,

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Because the termination of parental rights in Iowa also terminates

the parent’s child support obligation, this raises an obvious question:

Should juvenile courts consider the potential loss of child support when

they apply the best interests of the child test under Iowa Code section

232.116(2)?

In two previous decisions under chapter 232, we indicated that the

loss of such financial support was an insufficient reason not to terminate

if termination was otherwise in the children’s best interests. Thus, in In

re L.S., 483 N.W.2d 836, 840 (Iowa 1992), we wrote:

Our review of the record made before the juvenile court

convinces us that the grounds alleged for termination of

parental rights have been proved. It is in the children’s best

interests to remove them from the detrimental influence of

their parents and provide a custodian who is free from the

assertion by the parents of their legal rights. The fact that

financial support, if any, by or through the parents is cut off

is an inadequate reason to alter this result.

Similarly, two years later, in In re M.S., 519 N.W.2d 398 (Iowa 1994), we

reiterated this point:

In assessing the best interests of the child, we evaluate

the child’s long-range as well as immediate interests. . . .

________________________________

Westlaw through 2011 Reg. Sess. Ch. 41) (providing support until the earliest of

adoption, the age of eighteen or graduation, removal of disabilities of minority, or the

child’s death, but possibly indefinitely if the child is disabled); Ex parte M.D.C. 39 So.3d

1117, 1132 (Ala. 2009) (“[I]nvoluntarily terminating a parent’s rights to his or her child

does not, by operation of law, extinguish the parent’s responsibility to pay child support

for the benefit of that child as established by a prior judgment.”); Ill. Dep’t of Healthcare

and Family Servs. v. Warner, 882 N.E.2d 557, 562 (Ill. 2008) (citing 750 Ill. Comp. Stat.

50/17 and holding support continues until the child is “sought to be adopted”);

Adoption of Marlene, 822 N.E.2d 714, 718–19 (Mass. 2005) (holding the termination of

the parent-child relationship does not end the concomitant duty of support); In re Beck,

793 N.W.2d 562, 567 (Mich. 2010) (terminating father’s parental rights did not sever his

child support obligation); State v. Fritz, 801 A.2d 679, 685 (R.I. 2002) (“[P]arental

financial support continues until a child has been emancipated, adopted, reaches the

age of majority, or until the obligation has been duly terminated [by a court order].”); In

re Ryan B., 686 S.E.2d 601, 606 (W. Va. 2009) (continuing financial support after

termination of parental rights).

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We give primary consideration to the physical, mental,

and emotional condition and needs of the child. The fact

that potential support would be cut off by an order to

terminate is an inadequate reason to alter such a decision.

M.S., 519 N.W.2d at 400 (citation omitted).

Yet these decisions did not treat the subject in detail. Over time,

as exemplified by the court of appeals decision in this case, courts in our

state have raised questions as to how the loss of possible financial

support from one or both parents should be factored into the best

interests of the child test in chapter 232 termination cases.

Here, Valarie argues the payment or nonpayment of child support

is “relevant evidence of [the parent’s] interest in the child’s well-being.”

To support this argument, Valarie cites In re Goettsche, 311 N.W.2d 104,

106 (Iowa 1981), a termination case under chapter 600A, 5 where we

stated the “abnegation of court-ordered financial responsibility is

relevant evidence of indifference to the child involved.” Since Goettsche,

our appellate courts have repeatedly recognized child support generally

as a valid consideration in termination proceedings under chapter 600A.

See, e.g., In re D.W.K., 365 N.W.2d 32, 34–35 (Iowa 1985) (refusing to

allow a father to voluntarily terminate his parental rights in order to

avoid paying child support because this “ultimately would open a hatch

for a parent to escape his or her duty to support a child”); In re T.Q., 519

N.W.2d 105, 107 (Iowa Ct. App. 1994) (affirming dismissal of petition

filed by father because this would end the father’s duty of support); In re

J.L.W., 496 N.W.2d 280, 282–83 (Iowa Ct. App. 1992) (upholding denial

of voluntary termination sought by father who wanted to avoid paying

child support); In re K.J.K., 396 N.W.2d 370, 371–72 (Iowa Ct. App. 1986)

5As noted above, chapter 600A allows a parent to seek termination of either

parent’s rights, but its provisions do not apply to children who are involved in CINA

proceedings. See Iowa Code §§ 232.109, 600A.5(2).

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(reversing termination and noting that “[w]e fail to find any of these

factors support the finding that termination is in the child’s best interest,

particularly when considered with the child’s right to support from her

father”).

However, these cases arise under a different statute. We have said

that chapter 232 and chapter 600A “create separate and distinct causes

of action having different applicability based upon the facts of the

situation.” H.J.E., 359 N.W.2d at 474; see also In re B.B.M., 514 N.W.2d

425, 428 n.1 (Iowa 1994). Chapter 600A sets forth a different standard

for termination. Compare Iowa Code § 600A.8 (“Grounds for

termination.”), with id. § 232.116 (“Grounds for termination.”). Unlike

chapter 232, chapter 600A expressly recognizes failure to pay support as

a potential ground for termination. See id. §§ 600A.8(3)(a)(2)(a),

600A.8(3)(b), 600A.8(4).

Moreover, each chapter has its own “best interests” test. According

to section 600A.1:

The best interest of a child requires that each

biological parent affirmatively assume the duties

encompassed by the role of being a parent. In determining

whether a parent has affirmatively assumed the duties of a

parent, the court shall consider, but is not limited to

consideration of, the fulfillment of financial obligations,

demonstration of continued interest in the child,

demonstration of a genuine effort to maintain

communication with the child, and demonstration of the

establishment and maintenance of a place of importance in

the child’s life.

Id. § 600A.1. Thus, section 600A.1 specifically refers to the parent’s

“fulfillment of financial obligations.”

By contrast, as we recently recognized in In re P.L., 778 N.W.2d 33,

37 (Iowa 2010), section 232.116 establishes its own framework for

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analyzing the best interests of the child in chapter 232 termination

cases. That section provides in part:

In considering whether to terminate the rights of a parent

under this section, 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.

Iowa Code § 232.116(2). Therefore, in P.L. we advised as follows:

Rather than a court using its own unstructured best-

interest test, the court is required to use the best-interest

framework established in section 232.116(2) when it decides

what is in the best interest of the child. The primary

considerations are “the child’s 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.” Accordingly, a court should base its

best-interest determination on the legislative requirements

contained in section 232.116(2), rather than upon the

court’s own value system. Additionally, in making this

determination the court’s decision should contain specific

reasons as to why the court made its determination under

section 232.116(2). By doing so, we will assure parents that

our courts are applying the legislative intent of the statute in

termination actions decided under chapter 232.

P.L., 778 N.W.2d at 37 (quoting Iowa Code § 232.116(2)).

P.L. was foreshadowed by In re K.M., 653 N.W.2d 602 (Iowa 2002),

and by Justice Cady’s special concurrence in In re J.E., 723 N.W.2d 793

(Iowa 2006). As pointed out in those opinions, our general assembly

amended chapter 232.116(2) in 1998. See 1998 Iowa Acts ch. 1190,

§ 23. While the section previously stated that “the court shall give

primary consideration to the physical, mental, and emotional condition

and needs of the child” when determining whether to terminate parental

rights, Iowa Code § 232.116(2) (1997), it now reads “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

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physical, mental, and emotional condition and needs of the child.” Iowa

Code § 232.116(2) (2009) (emphasis added). As Justice Cady’s

concurrence points out, the legislature “has significantly, and not too

subtly, identified a child’s safety and his or her need for a permanent

home as the defining elements in a child’s best interests.” J.E., 723

N.W.2d at 802 (Cady, J., specially concurring); see also K.M., 653 N.W.2d

at 608 (noting that the legislation “articulated the concerns that clearly

impact a child’s best interests: the child’s safety and need for a

permanent home”).

Notably absent from section 232.116(2), P.L., J.E., and K.M. is any

explicit reference to financial support payments, and we believe it would

be inappropriate for Iowa courts to introduce such a consideration. 6

While taking child support directly into account under chapter 600A

makes sense because that is a private termination statute, and thus a

component of our domestic relations law, section 232.116 addresses the

typically more urgent situation in which a child is at a high degree of

risk. See In re M.M.S., 502 N.W.2d 4, 9 (Iowa 1993) (“There is not always

the urgency in chapter 600A termination cases that we have noted in

6Some states have specifically stated that the financial support of a parent may

be used in determining best interests of a child. See, e.g., Conn. Gen. Stat. Ann. § 45a–

717(e)(1) (West, Westlaw through Gen. St., Rev. to 1-1-2011); Del. Code Ann. tit. 13, §

722(a)(6) (West, Westlaw through 78 Laws 2011, Chs. 1–72, 75, 79–92); Mo. Ann. Stat.

§ 211.447(7)(3) (West, Westlaw through 2011 1st Reg. Sess.). Thus, while Valarie refers

us to a Missouri Court of Appeals decision in support of her position that payment of

child support should be considered in this termination proceeding, In the Interest of

T.A.L., 328 S.W.3d 238 (Mo. Ct. App. 2010), she candidly acknowledges that Missouri

law directs the court to consider “[t]he extent of payment by the parent for the cost of

care and maintenance of the child when financially able to do so.” See Mo. Ann. Stat. §

211.447(7)(3).

Also, even when a jurisdiction authorizes the financial support of the parent to

be taken into account, the court may find that other factors outweigh it. State ex rel.

Juvenile Dep’t of Multnomah Cnty. v. Proctor, 10 P.3d 332, 334 (Or. Ct. App. 2000)

(abusive father’s parental rights should be terminated regardless of the loss of the right

to financial support).

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termination cases under the juvenile code (Iowa Code § 232.109 et

seq.).”). In these circumstances, the legislature has directed us to focus

on the child’s safety, long-term nurturing and growth, and physical,

mental, and emotional condition and needs, rather than court-ordered

child support.

It is true that noncustodial child support payments generally help

a child’s needs to be met. Still, we cannot ignore the contrast between

the wordings of the two statutes. When the legislature wanted a parent’s

fulfillment of financial obligations to be taken directly into account, it

said so expressly in section 600A.1. In any event, when termination of

parental rights occurs, other sources of financial support for the child

may become available, and we do not read section 232.116(2) as

directing courts to engage in a dollar-for-dollar weighing process.

Rather, the child’s safety and need for a permanent home are paramount

concerns. See J.E., 723 N.W.2d at 802 (Cady, J., specially concurring);

K.M., 653 N.W.2d at 608.

We also share the court of appeals’ concern that, in some

instances, terminating the rights of a parent who is obligated to pay child

support may place a greater financial burden on the remaining parent or

the State. 7 But if the alternative is that the child’s safety, nurturing and

growth, or physical, mental, and emotional condition and needs will

suffer, the legislature has directed us to proceed with termination,

provided the statutory prerequisites of section 232.116(1) have been met

and nothing in section 232.116(3) would lead to a contrary result.

Moreover, in many instances, if termination does not occur, the State

7Of course, in some cases termination may enable the child to be adopted by a

person or persons who are willing to assume the financial obligations of parenthood.

The record in this case indicates that H.S.’s stepmother Amanda was willing to adopt

her.

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remains under the obligation to provide services to that parent, often at a

greater cost than the child support payments in question. Also, chapter

232’s requirement that termination proceedings be brought by a

representative of the child or the State, see Iowa Code § 232.111(1),

reduces the risk of a termination being pursued to avoid financial

obligations.

Finally, we are not holding that evidence about child support is

inadmissible in a chapter 232 proceeding. Payment, or nonpayment, of

such support may provide relevant information about the parent’s ability

to successfully parent. To this extent, we agree with Valarie’s argument.

What we are holding, consistent with our earlier decisions in L.S. and

M.S., is that the anticipated loss of child support funds in and of

themselves as a result of termination should not be part of the section

232.116(2) best interests analysis.

Turning to the facts of this case, we agree with the findings and

conclusions of the juvenile court. There is no real dispute that the

statutory requirements for termination under Iowa Code section

232.116(1) were met. Both the juvenile court and the court of appeals so

found, specifically noting that the children had been out of Valarie’s

custody for over fourteen months and could not presently be returned to

her care. The disagreement centered on the best interests requirement

in section 232.116(2). During the course of a five-day trial, the juvenile

court had the opportunity to evaluate the credibility of the witnesses,

including Valarie. We concur in the juvenile court’s careful review of the

facts, including its ultimate findings that Valarie “cannot be trusted” to

protect H.S.’s safety, that H.S.’s safety is “more important than” her bond

with her mother, that Charles has “demonstrated for well over a year”

that he can meet all of H.S.’s “needs for safety, permanency, and well-

24

being,” and that termination of Valarie’s rights would be “less detrimental

than the harm” that would be caused by continuing the parent/child

relationship under the ongoing supervision that would be required in

light of Valarie’s chronically deceptive behavior. The juvenile court

thoroughly, and we believe correctly, applied the statutory factors set

forth in section 232.116(2). See P.L., 778 N.W.2d at 40. We also note

that Amanda, Charles’ spouse, intends to adopt H.S. if Valarie’s parental

rights are terminated. According to a service provider, Amanda and H.S.

have an affectionate relationship. It was uniformly agreed that Charles’

home is suitable and that H.S. has been thriving there.

The court of appeals acknowledged a number of the specific facts

relied upon by the juvenile court, as well as a legitimate concern that

Valarie might allow Tony to reenter her life upon his release from prison,

“particularly if he is the father of the child born to Valarie.” Yet it found

the “children’s needs would be better met by requiring the mother to pay

child support than by terminating parental rights.” For the reasons we

have discussed, we do not believe the legislature intended this potential

loss of child support to be a component of the section 223.116(2) best

interests test. 8

8Under the three-step process set forth in the statute, assuming a ground for

termination has been proved under section 223.116(1), and the factors under section

223.116(2) favor termination, the court should then decide whether it need not

terminate the relationship for any of the reasons set forth in section 223.116(3). P.L.,

778 N.W.2d at 40–41. Here, however, Valarie has not argued on appeal that any of the

section 223.116(3) exceptions to termination apply. Even if she had, the only arguably

relevant exception is in section 232.116(3)(c), i.e., “There 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.” Like the juvenile court, we find there is a

bond between H.S. and Valarie, but that H.S.’s safety, long-term nurturing and growth,

and physical, mental, and emotional needs would be better served by termination of

parental rights notwithstanding that bond. In re D.W., 791 N.W.2d 703, 709 (Iowa

2010) (holding that in analyzing this exception, “our 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”).

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V. Conclusion.

For the foregoing reasons, we affirm the juvenile court’s judgment

terminating Valarie’s parental rights to H.S. We vacate the opinion of the

court of appeals, but affirm the result reached by the court of appeals

with respect to S.N.’s parental rights.

DECISION OF THE COURT OF APPEALS VACATED AND

JUDGMENT OF THE JUVENILE COURT AFFIRMED AS TO H.S.;

DECISION OF THE COURT OF APPEALS AFFIRMED AS TO S.N.