permissive exception in Iowa

2026Permissive exception “Once we have established that the termination of parental rights is in the children’s best interests, the last step of our analysis is to determine whether any exceptions in section 232.116(3) apply to preclude the termination.” In re M.W., 876 N.W.2d 212, 225 (Iowa 2016).

2025Permissive Exception The permissive exception in Iowa Code section 232.116(3)(c) allows the juvenile court to avoid termination when the parent proves by clear and convincing evidence that it “would be detrimental to the child at the time due to the closeness of the parent-child relationship.” See In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (noting the exception is “permissive, not mandatory” (citation omitted)).

2025Using the familiar three-step framework for termination of parental rights, see In re P.L., 778 N.W.2d 33 , 40–41 (Iowa 2010), the juvenile court found grounds to terminate the mother’s parental rights under Iowa Code section 232.116(1)(d), (e), and (f) (2024).3 It further concluded that termination was in the child’s best interests and that the bond between the mother and her son did not support a permissive exception under section 232.116(3)(c).

2025But because the father challenges neither the statutory grounds for termination nor whether a permissive exception should be applied, we need not consider those steps.2 Id. 1 By the same order, the juvenile court also terminated the parental rights of the children’s mother under Iowa Code section 232.116(1)(b), among other grounds.

2025But in deciding to apply a permissive exception, we weigh the harm of severing the parent-child bond against the father’s “inability to provide for [the child’s] developing needs.” D.W., 791 N.W.2d at 709 .

2025See A.S., 906 N.W.2d at 476 (recognizing parent has the burden to establish the permissive exception); D.W., 791 N.W.2d at 710 (when determining whether to apply section 232.116(3)(c) to save the parent-child relationship, “our consideration must center 12 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”).

2024See A.M., 843 N.W.2d at 112 . 9 To the extent that the mother also argues for the permissive exception to termination based on the strength of her bond with A.S., the closeness of a parent- child bond may serve as a permissive exception to termination.

2022From this, we infer the parents are asking that we apply the permissive exception to termination in Iowa Code section 232.116(3)(c), which authorizes the court to forgo termination when it “would be detrimental to the child[ren] . . . due to the closeness of the parent-child relationship.” See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014) (noting application of an exception to termination in section 232.116(3) is “permissive, not mandatory”).

2020“The court has discretion, based on the unique circumstances of each case and the best interests of the child, whether to apply the factors in this section to save the parent-child relationship.” In re D.S., 806 N.W.2d 458, 475 (Iowa Ct. App. 2011). 9 The father suggests the court need not terminate his parental rights because one of the permissive factors applies: that his absence in the children’s lives is because of his commitment to an institution, citing section 232.116(3)(e).

2015See Iowa Code § 232.116 (3)(c); see In re S.J., 451 N.W.2d 827 , 833–34 (Iowa 1990). “‘The factors weighing against termination in section 232.116(3) are permissive, not mandatory,’ and the court may use its discretion, ‘based on the unique circumstances of each case and the best interests of the child, whether to apply the factors in this section to save the parent-child relationship.’” In re A.M., 843 N.W.2d at 113 (quoting In re D.S., 806 N.W.2d 458, 475 (Iowa Ct. App. 2011)). 9 We find that none of the permissive factors weigh against termination of the parents’ parental rights here.

2024The mother argues the juvenile court should have established a guardianship in lieu of termination. “[A] guardianship is not a legally preferable alternative to termination.” In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App. 2017).

2024Like the juvenile court, we decline to apply this permissive exception and establish a guardianship. “[A] guardianship is not a legally preferable alternative to termination.” In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App. 2017).

2021In re L.T., 924 N.W.2d 521, 526 (Iowa 2019).

2019In re L.T., 924 N.W.2d 521, 526 (Iowa 2019).

2021See In re A.R., 932 N.W.2d 588, 591 (Iowa Ct. App. 2019).

2021See id. (“While we credit these teenagers for clearly expressing their objection to the termination, we do not believe this permissive factor required the juvenile court to bypass termination in this situation.”).

2019See J.E., 723 N.W.2d at 798 .

2016See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014) (citing In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially) (noting the “defining elements in a child’s best interest” are the child’s safety and her “need for a permanent home”)). 5 The mother maintains that two of the permissive factors found in section 232.116(3) weigh against the termination of her rights.

1985Id. at 322-23.

1984State v. Rinehart, 283 N.W.2d 319, 321 (Iowa 1979), cert. denied, 444 U.S. 1088 , 100 S.Ct. 1049 , 62 L.Ed.2d 775 (1980) (quoting County Court of Ulster County, New York v. Allen, 442 U.S. 140, 156-57 , 99 S.Ct. 2213, 2224-25 , 60 L.Ed.2d 777, 791-92 (1979)).

2026Iowa Code § 232 .102A(1)(a) states that “[r]easonable efforts” are “the efforts made to preserve and unify a family prior to the out-of-home placement of a child in foster care or to eliminate the need for removal of the child or make it possible for the child to safely return to the family’s home.” 8 See also In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).

2025See N.J.W., 2007 WL 3085876, at *4 (“If the three requirements are conclusively met, there is no need to venture into the six additional considerations.”).

2025In re J.C., 857 N.W.2d 495, 500 (Iowa 2014).

2024It 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)).

2024It 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)).

2023See J.V., 464 N.W.2d at 890 .

2023But our statute does not require that the severance be “seriously detrimental” only “detrimental.” And our case law recognizes that the risk of losing a close bond, even without outward manifestations of the harm, may meet the burden under section 232.116(3)(c). 15 See, e.g., M.S., 889 N.W.2d at 684 (applying close-relationship exception when father had a “strong bond” with the child, and provided “excellent and loving care 14 Our legislature adopted this example as a separate permissive exception.

2022State v. Green, 896 N.W.2d 770, 780 (Iowa 2017).

2021See In re T.N.M., 542 N.W.2d 574, 576 (Iowa Ct. App. 1995) (finding, 6 when a parent voluntarily and intelligently consents to the termination of her parental rights at the time of the termination hearing, the consent is “binding if it is in the best interest[s] of the child”).

2016The father’s attorney said yes as to the best-interest standard only, but when asked if he had any evidence for the father, he replied in the negative. 8 Additionally, the father’s prior attempts at sobriety have been unsuccessful, and “[t]he future can be gleaned from evidence of the parents’ past performance and motivations.” In re T.B., 604 N.W.2d 660, 662 (Iowa 2000).

2015See Iowa Code § 232.116 (3)(c); see In re S.J., 451 N.W.2d 827 , 833–34 (Iowa 1990). “‘The factors weighing against termination in section 232.116(3) are permissive, not mandatory,’ and the court may use its discretion, ‘based on the unique circumstances of each case and the best interests of the child, whether to apply the factors in this section to save the parent-child relationship.’” In re A.M., 843 N.W.2d at 113 (quoting In re D.S., 806 N.W.2d 458, 475 (Iowa Ct. App. 2011)). 9 We find that none of the permissive factors weigh against termination of the parents’ parental rights here.

1994In State v. Winders, 359 N.W.2d 417, 419 (Iowa 1984), we stated: A permissive presumption is one that allows, but does not require, the jury to infer an elemental fact from proof of a basic one.