In the Interest of A.B. & S.B., Minor Children, S.B., Father

IN THE SUPREME COURT OF IOWA
No. 12–0133

Filed June 22, 2012

IN THE INTEREST OF A.B. & S.B.,
Minor Children,

S.B., Father,
Appellant.

Appeal from the Iowa District Court for Polk County, Constance

Cohen, Judge.

The State seeks further review of a court of appeals decision

reversing the termination of a father’s parental rights. COURT OF

APPEALS DECISION VACATED; JUVENILE COURT JUDGMENT

AFFIRMED.

Kate Strickler of KE Law, L.L.C., Des Moines, for appellant father.

Donna R. Beary, Des Moines, for mother.

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

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

Brown, Assistant County Attorney, for appellee.

John P. Jellineck, Des Moines, guardian ad litem for minor

children.
 2

MANSFIELD, Justice.

In this case, a juvenile court terminated a father’s parental rights

to two children pursuant to Iowa Code section 232.116(1)(d), (g), (h), and

(l) (2011). The father appealed, arguing that the juvenile court violated

his due process rights when it ordered him to provide a fingernail drug

test after the termination trial, that the State failed to prove the grounds

for termination, and that termination of the father’s parental rights was

not in the children’s best interests. The court of appeals reversed,

principally on the basis there was no evidence in the record as to the

reliability or the accuracy of the fingernail drug test, nor information as

to how the test results were to be interpreted. We find that error was not

preserved on the father’s due process claim and agree with the juvenile

court that the evidence including the fingernail test was sufficient to

warrant termination and termination was in the children’s best interests.

Accordingly, we vacate the decision of the court of appeals and affirm the

judgment and order of the juvenile court.

I. Facts and Procedural History.

Silverio is the father, and Nelda is the mother, of S.B. (born 2004)

and A.B. (born 2007). Silverio and Nelda were never married, and both

have children from prior relationships. They are no longer together, and

their turbulent on-again, off-again relationship has been plagued by

drugs and domestic violence. Silverio, the subject of six founded reports

of child abuse, has criminal convictions for assault and possession of

controlled substances.

Silverio’s rights to another child were previously terminated.

Silverio explained that the prior termination occurred because he had

agreed with the child’s mother, Shannon, not to attend the termination

hearing. According to Silverio, he and Shannon jointly decided it would
 3

be best to allow the termination to occur in order to protect Shannon’s

parental rights and “get them [the Department of Human Services] out of

our lives.”

S.B., A.B., and their younger half brother, D.G., were all living with

their mother Nelda when these children came to the attention of DHS in

November 2010. At that time, it was reported that Nelda had not

followed through with medical care and doctor’s recommendations for

D.G.’s special medical needs. Additional concerns arose regarding

Nelda’s lack of stable housing, Nelda’s illegal drug use, and truancy-

related issues with respect to S.B. At this time, DHS began offering

Nelda services.

In January 2011, Silverio was arrested when marijuana, pills

(including morphine), and a switchblade were found in his coat pockets.

At the termination trial in this case, he claimed the drugs were not his:

Q. Why did you have them? A. I don’t know why they
was in my pocket.

Q. Were they yours? A. No.

Q. Whose were they? A. One of my friends.

Q. Why did you have them? A. I don’t know. It must
have been put in my pocket.

In early March 2011, all three children—S.B., A.B., and D.G.—

began living with Silverio in the basement of Silverio’s brother’s home.

Nelda was essentially homeless and had felony arrest warrants for

identity theft. On March 16, while charges from the January incident

were still pending, Silverio was arrested for possession of cocaine and

methamphetamine. The police saw Silverio carrying a black duffel bag

and running away from the direction of police cars. When the police
 4

apprehended him, on the ground near the bag they retrieved a digital

scale, cocaine, and methamphetamine. Silverio denied these were his. 1

That same day, the juvenile court signed an order of temporary

removal, placing the children in foster care. Silverio was subsequently

released from jail, conditioned upon obtaining a substance abuse

evaluation and complying therewith.

On March 17, Nelda was arrested for identity theft and

incarcerated. Also that day, the State filed petitions alleging the children

to be in need of assistance (CINA) pursuant to Iowa Code sections

232.2(6)(c)(2) and (n) (2011). The parents and children were ordered to

submit to hair stat testing. Nelda and all three children tested positive

for methamphetamine in March. Silverio claimed to have undergone a

hair test, but the collecting agency had no records of it. Later, he shaved

his head and was unable to provide a hair sample for testing.

The juvenile court confirmed and continued the removal of the

children after an uncontested hearing held on March 22. The court

ordered numerous services to be provided to the family, including sibling

contact, bus tokens for Nelda, dental care for the children, drug testing,

Family Safety Risk and Permanency Services, substance abuse

evaluations, and a mental health evaluation for Nelda.

Nelda was still incarcerated on April 20 when the CINA

adjudication hearing was held. At the hearing, the juvenile court

determined that “placement outside the parental home [wa]s necessary

because continued placement in or a return to the home would be

contrary to the children’s welfare because of improper supervision and

1Another individual was also arrested in the vicinity, but the only bag that was
found belonged to Silverio.
 5

exposure to illegal drugs.” The children were adjudicated in need of

assistance and remained in foster care.

Silverio submitted to a urinalysis in early April which tested

positive for methamphetamine. He maintains this was a false positive

and claims he has never used methamphetamine and has not used

marijuana since before S.B. was born.

Subsequently, Silverio pled guilty to the drug possession and

weapon charges stemming from the January incident and received a

thirty-day sentence. He also agreed to a plea bargain in which the

charges arising out of the April incident were reduced to one count of

possession of drug paraphernalia, to which he pled guilty and was fined.

On May 22, days after he was released from jail, Silverio was

arrested again for domestic abuse assault, following an incident with

Shannon. A no-contact order was issued. On August 18, Silverio pled

guilty under a plea agreement in which the charge was amended to

disorderly conduct. That same day, the no-contact order was canceled at

Shannon’s request.

Following his release from jail in May, Silverio provided numerous

urine samples that all tested negative for illegal drugs, completed anger

management class, 2 and appeared to be making progress with various

parenting and reunification services. He took parenting classes and did

not miss any family team meetings or court hearings. He completed a

recommended drug and alcohol awareness program and underwent a

mental health evaluation. Meanwhile, Nelda—the mother of A.B., S.B.,

and D.G.—remained incarcerated much of the time.

2Silverio had previously completed the batterer’s education program (BEP) in
2010.
 6

Silverio also obtained full-time employment. He received a glowing

character reference from his employer which he submitted as an exhibit

in the termination hearing. As of July, Silverio had resumed regular

supervised visitation with the children characterized by appropriate

interaction. During the visits, he brought the children snacks and gifts

and provided their foster parents with clothing, coats, school supplies,

and diapers for the children. Silverio attended three of A.B.’s therapy

sessions and communicated with S.B.’s school and with the children’s

daycare provider. Substance abuse evaluators also reported favorably on

Silverio.

Despite Silverio’s progress and participation in reunification

efforts, DHS had serious concerns regarding his “lack of honesty and

insight.” The concerns related to Silverio’s relationships with Nelda and

Shannon, his potential inability to control his anger, and his involvement

with illegal substances. Silverio’s head still was shaven and he did not

have enough hair for a hair stat test to be performed. Also, A.B.

continued to recall memories of physical violence between Silverio and

Nelda and between Silverio and Shannon.

Silverio was approved for semi-supervised visitation, and the first

visit occurred around August 20. However, Silverio brought Shannon to

the visit and thereafter the semi-supervised visitation was canceled and

supervised visitation resumed.

A permanency hearing was held on September 1. Silverio

requested additional time to obtain custody. The children’s guardian ad

litem (GAL) recommended Silverio be given additional time to obtain

custody. The State recommended termination of Silverio’s parental

rights. At the conclusion of the hearing, the juvenile court instructed the

State to institute proceedings to terminate Silverio’s parental rights
 7

within thirty days. The court set October 25 as the date for the

permanency/termination of parental rights hearing.

The State filed a petition to terminate Silverio’s parental rights on

September 23. On October 11, 2011, Court Appointed Special Advocates

(CASA) prepared a report. The report indicated that the children were

thriving and happy in foster care but did describe a bond between

Silverio and both A.B. and S.B. The report expressed a number of

concerns about Silverio, including his “ability to speak with truth,” his

“ability to effectively establish what he has learned in parenting classes,”

his “involvement with Shannon,” and his “ability to identify positive and

healthy relationships.” The report also related a very recent incident in

which one of the foster parents had felt intimidated by Silverio. 3 In

addition, the report expressed concerns about both Nelda and D.G.’s

father. The report recommended termination of all parental rights to all

three children.

On October 8, after the petition for termination of parental rights

was filed, Silverio rented an apartment large enough for both children.

The permanency/termination of parental rights hearing began on

October 25. Silverio appeared in person and testified. Nelda testified by
telephone from jail. D.G.’s father had been deported out of the country

and did not attend. Other witnesses included Shannon, one of the foster

parents, the therapist for A.B., and a DHS caseworker. The caseworker

questioned Silverio’s honesty with respect to drug testing, noting she had

seen him with his head both shaved and unshaved. The therapist

3According to the foster parent, the incident arose after the parent told the DHS
caseworker about inappropriate statements Silverio made over the phone to A.B.
Silverio allegedly told A.B. that A.B., S.B., Silverio, and Nelda would all live together in
the future.
 8

reported that A.B. had drawn pictures of and spoken about her father

and mother’s apparent drug use.

At the conclusion of evidence on November 2, the juvenile court

asked the parties if they had any other requests. Silverio’s attorney

requested that Silverio be granted additional visits with the children.

The DHS caseworker responded that she would like to discuss the matter

with the children’s therapist and also find out if there was a family

member who could supervise the additional visits.

The following exchange occurred:

THE COURT: [T]he court would expect that [Silverio’s]
visits can be transitioned into semi-supervised if the child’s
therapist agrees and [Silverio] can get himself there alone or
with an approved person . . . .

....

[THE STATE]: Your Honor, I—We’ve requested, and it’s
been ordered in the past, for a hair test.

And [Silverio] hasn’t been able to provide one since his
hair is not long enough.

[The DHS case worker] informs me they can do a nail
test, so I would just ask that be substituted instead.

THE COURT: Okay.

[SILVERIO’S COUNSEL]: And if I could respond, Your
Honor?

[Silverio] calls every day for his number, for his urine
tests; and he has not missed any of his urine tests. He goes
every time that his number is called, and all of his tests have
come back clean. I believe there was one that came back not
clean . . . .

THE COURT: Okay. Well, this is a service that’s being
offered. I think it’s a reasonable effort.

If you choose to take advantage of it, you know, it’s an
opportunity for you to demonstrate that you have absolutely
nothing to hide. We all know that urine screens can be
adulterated. So I urge you to comply with that request. If
you’re doing your homework, turn it in.
 9
SILVERIO . . . : Okay.

THE COURT: Okay. Then we’ll be in recess until
November 28 . . . .

At the continued hearing on November 28, Silverio’s counsel

reported:

At the end of the [last hearing] . . . we all agreed that
[Silverio] could have semisupervised visits if he passed a
fingernail test. He went to have a fingernail test done, but
. . . the site . . . said they no longer do fingernail testing.
The DHS caseworker responded:

This nail test was requested [a] long time ago.
[Silverio], looks like, went to provide that test on Wednesday
last week, and they told him to come back today. He did.
And today he was told that they are not doing nail test. This
nail test[] was approved by my director. I called back the
number, and they said that they will call me and let me
know if he can provide this nail test. So I am still hoping
that he will be able to do so sometime this week.

I am very concerned that he didn’t go to provide that
test as soon as this test was requested.

Silverio’s counsel responded that Silverio was “perfectly willing to

do the fingernail test . . . [a]nd he would be happy to start dropping UAs

again . . . .” The court considered the matter submitted, but stated it

was

leaving the record open for two more weeks . . . for [Silverio]
to submit a fingernail test and for [the court] to get the
results on that . . . then another week beyond that to allow
parties time to submit any written memoranda or proposed
findings of fact [or] conclusions of law.

On November 29, 2011, Silverio submitted to the fingernail test.

According to the report from the testing laboratory dated December 7,

2011, the sample tested positive for methamphetamine. 4

4The test reading was 4,363 picograms per milligram, nearly nine times the
stated threshold of 500 pg/mg for a positive reading.
 10

On December 14, 2002, the GAL filed a written statement

supporting termination of parental rights. He noted Silverio “has done

some things well” and “[i]t is apparent he loves both of his children.” Yet

the GAL added, “[Silverio’s] repeated delays in obtaining a hair stat test

are extremely troubling; his subsequent positive result on the November

29th fingernail test only serves to confirm those concerns.” The GAL also

commented, “I do not see how it is feasible to return the children to

[Silverio’s] care.” In conclusion, the GAL expressed the view that it was

in A.B.’s and S.B.’s best interests for both parents’ rights to be

terminated and for them to receive “permanency, along with a safe,

stable and nurturing home.”

On January 10, 2012, the juvenile court entered an order

terminating the mother’s and the father’s parental rights to all three

children. Specifically, the court terminated Silverio’s parental rights to

A.B. and S.B. pursuant to Iowa Code section 232.116(1)(d), (g), (h), and

(l). Among other things, the court noted the following:

Reports of [Silverio] minimizing his substance abuse
problems were substantiated by his repeated delays in
obtaining a hair stat test after being ordered to do so, and
his fingernail test result on November 29, 2011. His
fingernail screen tested positive for methamphetamine . . . .
[S]adly, there is no question that he is still struggling with
abstaining from the use of methamphetamine and has not
been forthcoming about his addiction to the extent that
would allow services to be tailored to meet his needs.

....

[Silverio’s] drug screen [i]n April . . . was positive for
methamphetamine. Yet, he reported that he had no
problems with illegal substances. [Silverio] underwent a
substance abuse evaluation on February 16, 2011, before
the petitions were filed, in order to comply with the
requirements of the criminal cases pending against him . . . .
In that evaluation, Silverio reported his last use of marijuana
as being eight years ago and denied any use of
methamphetamines, cocaine, opiates, heroin, or any other
 11
drugs. Accordingly, there were no recommendations for
further treatment.

On August 15, 2011, [Silverio] underwent another substance
abuse evaluation. Again, this evaluation was required
because of pending drug charges. And again, in spite of a
drug test that was positive for methamphetamine in April,
and ongoing drug-related charges, [Silverio] continued to
deny drug use. Based upon his representations to the
evaluator, no recommendations for further treatment were
made.

Obviously, the results of the evaluations were based upon
the sole representations of [Silverio], which representations
were false. He neglected to tell the evaluator that he was
testing positive for methamphetamine in April, 2011, and,
more disturbing, provided a drug screen positive for
methamphetamine in December, 2011, as per the fingernail
analysis. Clearly, Silverio . . . suffers from a severe and
chronic substance abuse problem that places himself and
others in danger as evidenced by prior acts. His fervent
denial of drug use in the face of clear evidence to the
contrary indicates that he is not ready to begin the changes
necessary to provide a safe and stable drug-free environment
for young children. Given his denial, his prognosis is poor.
There is no reason to believe that he will be able to resolve
his unadmitted addiction in a reasonable amount of time
given these young children’s need for a permanent home.

Because of his unresolved addiction, contact between
[Silverio] and the children has been supervised by
professionals to date. Efforts to relax the level of supervision
were disrupted when he participated in unauthorized contact
with the children while at his brother’s home. His testimony
that he had been clean since before S[.B.] was born was
completely undermined by the drug screen results in April
and December.

In addition to his denial of ongoing drug abuse, there are
numerous drug related charges he has faced or is currently
facing. For example, in January, 2011, when charged with
carrying concealed weapons and possession of marijuana, he
claimed that the report that the knife was in his pocket was
incorrect and that a friend must have put the drugs in his
pocket. In March, 2011, he was carrying a small black duffel
bag and running from the direction of police cars. Police
later found a small black scale and drugs near the bag that
he had been carrying. The charges that resulted in the
children being removed, the possession of methamphetamine
and cocaine, are simply too consistent with his past pattern
to be considered coincidental and not related to his own drug
use.
 12
Were it not for the denial of drug use in the face of credible
evidence to the contrary, reunification would be achievable.
Silverio has complied with anger management therapy,
gained insight into his domestically violent relationships,
and has demonstrated appropriate parenting skills. The
children are happy to see him at visits and he provides
appropriate snacks and activities for them. He is employed
and has appropriate housing. He has benefited from
parenting classes.

It is clear that [Silverio] loves the children and that they love
him. But it is also clear that he is not in a position to
provide the safe and stable home for them that they need
and deserve. Additionally . . . as recently as October 11,
2011, he became very argumentative with A[.B.]’s foster
parent and she had to end the conversation. She felt that he
was trying to intimidate and bully her.

[Silverio] has harmed A[.B.] by giving her false hope that she
and her parents would all be together again someday. This
action on his part demonstrates a lack of insight into the
toxicity of his relationship with Nelda.

S[.B.] and A[.B.] have related feelings of relief in their current
foster homes. S[.B.] has repeatedly told his foster parents
that he likes living there because he no longer has to worry
about his mom and dad fighting or his dad and Shannon
fighting. While [Silverio] made efforts to call A[.B.], he did
not make a similar effort to maintain telephone contact with
S[.B.]

....

[Silverio] is this case’s greatest disappointment. Because he
is unwilling to admit that he has a substance abuse
problem, he cannot begin to resolve it. Because he believes
that he has completed anger management classes, he
believes he has resolved his anger issues; however, recent
conversations with S[.B.] and A[.B.]’s foster parents belie
that conclusion. Although there is a bond with the children,
because of his deceit and inability to admit that he needs
more help, visits are still professionally supervised and
cannot progress beyond that restriction without risk of harm
to the children.

Silverio appealed the termination order. 5 He urged that the

juvenile court violated his due process rights when it ordered a drug test

5Neither Nelda nor D.G.’s father have appealed the termination of their parental
rights.
 13

at the end of the termination trial and relied on those results, that the

State had failed to establish a statutory ground for termination by clear

and convincing evidence, and that termination of Silverio’s parental

rights was not in the best interests of A.B. and S.B.

A divided panel of the court of appeals reversed. The majority

reasoned that Silverio had failed to preserve error on his objections to the

fingernail test but stated that it was “bothered by the results of the

fingernail test” because it found “no evidence in the record as to the

reliability or the accuracy of this type of test.” The court added that the

record did not provide “any information as to how such test results are to

be interpreted” and that there was “no way of knowing” whether the test

indicates drug usage in the recent or distant past. “For all we know, the

positive test merely confirms the April test results.”

Because it was unable to assign any weight to the fingernail test,

the court of appeals found the evidence insufficient to warrant

termination and also found that termination was not in the children’s

best interests. The court took note of the very positive reports on Silverio

from his employer and from various service providers. The court

concluded, “We believe a single fingernail test, without any information

about its accuracy, reliability, or how its results are to be interpreted,

cannot support termination of the father’s parental rights under this

record.” Thus, the court of appeals reversed and remanded with

instruction to grant Silverio six additional months toward reunification.

One judge on the panel dissented. She acknowledged that “the

majority sets forth an excellent and compelling opinion,” but reasoned

that “the issues as they relate to the fingernail drug test were simply not

preserved for our review.” In her view, the majority “inappropriately

resurrect[ed] the fingernail test issue, critique[d] the test, suggest[ed] it
 14

was unreliable, and then conclude[d] that termination was improper.”

She specifically noted that the juvenile court had kept the record open,

thereby providing an opportunity for Silverio to challenge the test

results—and he had failed to do so.

We granted the State’s application for further review.

II. Standard of Review.

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

Interest of H.S., 805 N.W.2d 737, 745 (Iowa 2011). “We give weight to the

juvenile court’s factual findings, especially when considering the

credibility of witnesses, but we are not bound by them.” Id.

III. Analysis.

A. The Fingernail Drug Test. Two succinct and clearly-written

opinions from experienced judges on the court of appeals have framed

the issues well for us. The court of appeals majority agreed with the

State that the father had failed to preserve error on his objections to the

fingernail test results. Yet it overturned the juvenile court’s termination

order because it found those test results uninformative and unreliable.

The dissent, on the other hand, accused the majority of honoring error

preservation principles in name only. It maintained the majority was

taking on the role of advocate by raising concerns about the fingernail

test that the father had not asserted below.

Upon our review, we land in a middle ground between these two

opinions. We find that the court of appeals majority’s criticisms of the

fingernail test, at least to some extent, did not violate principles of error

preservation. But we disagree with the majority’s conclusion that the

record, including the fingernail test, lacks clear and convincing evidence

to warrant termination of Silverio’s parental rights.
 15

We begin with a few points. First, the general rule that appellate

arguments must first be raised in the trial court applies to CINA and

termination of parental rights cases. In re Interest of K.C., 660 N.W.2d

29, 38 (Iowa 2003) (“Even issues implicating constitutional rights must

be presented to and ruled upon by the district court in order to preserve

error for appeal.”); In re Interest of A.M.H., 516 N.W.2d 867, 872 (Iowa

1994) (holding that by failing to file a motion under rule 179(b), now rule

1.904(2), a mother waived her statutory and due process challenges to

the deficiencies of the juvenile court’s order); In re Interest of S.J.M., 539

N.W.2d 496, 499 (Iowa Ct. App. 1995) (holding that a father waived any

error in the admission of testimony by not objecting to it). Thus, Silverio

cannot complain about the admission of the test report.

The juvenile court did not order Silverio to submit to a fingernail

drug test; instead, he voluntarily agreed. Several weeks after the close of

testimony, Silverio still had not undergone the test. Nonetheless, he

reiterated, through counsel, that he was “perfectly willing” to do it. He

then voluntarily appeared at the laboratory the next day. Even after the

test report was filed, the court made clear that it was providing “another

week beyond that to allow parties time to submit any written

memoranda.” But Silverio failed to file anything with the juvenile court

regarding the test.

Of course, Silverio’s failure to object to the test results does not

prevent the fact finder from deciding what weight to give to the evidence,

after it has been admitted. See DeLong v. Brown, 113 Iowa 370, 373, 85

N.W. 624, 625 (1901) (“[T]he weight to be given to evidence and its

admissibility are different matters.”). Thus, it was fair for the court of

appeals to comment on the limitations of the test report and observe that

“we have no way of knowing, based upon this record, whether the
 16

fingernail test indicates current drug usage, usage in the last week, last

month, or from several months ago.”

On the other hand, the majority may have gone too far when it

decried an absence of evidence “as to the reliability or the accuracy of

this type of test.” The two-page test report was admitted. It has no

indicia of unreliability on its face. It identifies who collected the sample,

where, and when; it provides a chain of custody for the sample; and it

identifies who ran the tests, where, and when. The various drug

screenings that the laboratory performed are indicated along with the

results. The test report clearly states that the methamphetamine reading

was nine times the threshold for a positive test.

Under our rules of evidence, exhibits generally are not admitted

unless there is “evidence sufficient to support a finding that the matter in

question is what its proponent claims.” Iowa R. Evid. 5.901(a). It follows

that when an exhibit has been admitted without objection, the fact finder

may conclude that it is what it purports to be. Of course, other

evidence—or aspects of the exhibit itself—may call this conclusion into

question. But when the exhibit has been received without objection, it

does not raise any concerns on its face, and there is a lack of other

evidence suggesting it is not reliable, the proponent of the exhibit should

not be faulted for failing to offer separate evidence to establish its

reliability.

The principle is one we have recognized before:

[T]he proper rule to be adhered to in this state is that when
hearsay evidence which would be objectionable and
incompetent when properly objected to is admitted without
objection and is relevant and material to an issue it is to be
considered and given its natural probative effect as if it were
in law competent evidence. Its weight is to be determined by
the trier of fact by the same criteria as is employed in
considering other competent evidence.
 17

Tamm, Inc. v. Pildis, 249 N.W.2d 823, 834 (Iowa 1976); see also State v.

DeWitt, 811 N.W.2d 460, 477 (Iowa 2012) (quoting this language).

In sum, the court of appeals majority was correct in their

assessment that the positive fingernail test did not indicate when Silverio

had last used methamphetamine. The test report did not disclose this,

and the State did not offer evidence to interpret the report. At the same

time, however, it was not the State’s burden to offer evidence to establish

the reliability of a report that appeared valid on its face and to which no

objection was raised. If nothing else, the November 2011 positive

fingernail test confirms the April 2011 positive urine test and explains

Silverio’s earlier apparent evasiveness regarding both hair and fingernail

testing.

B. Grounds for Termination. We now turn to the question

whether clear and convincing evidence (including the fingernail test)

established a ground for termination. When the juvenile court

terminates parental rights on more than one statutory ground, we may

affirm the juvenile court’s order on any ground we find supported by the

record. In re Interest of D.W., 791 N.W.2d 703, 707 (Iowa 2010). We find

termination was proper under section 232.116(1)(d).

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

court finds that both of the following have occurred:

(1) The court has previously adjudicated the child to
be a child in need of assistance after finding the child to
have been physically or sexually abused or neglected as the
result of the acts or omissions of one or both parents, or the
court has previously adjudicated a child who is a member of
the same family to be a child in need of assistance after such
a finding.

(2) Subsequent to the child in need of assistance
adjudication, the parents were offered or received services to
correct the circumstance which led to the adjudication, and
 18
the circumstance continues to exist despite the offer or
receipt of services.

There is no dispute that A.B. and S.B. were adjudicated as CINA

based on findings they had been neglected by both parents. In its

uncontested CINA adjudication order of April 20, 2011, the juvenile court

concluded that “placement outside the parental home [wa]s necessary

because continued placement in or a return to the home would be

contrary to the children’s welfare because of improper supervision and

exposure to illegal drugs.” The fighting issue here is whether this
circumstance that led to the CINA adjudication continued to exist despite

the offer of services to Silverio.

The juvenile judge, who had followed this case from the beginning

and heard the live testimony, concluded that the circumstance remained.

We believe her finding is supported by clear and convincing evidence. As

noted by the juvenile court, Silverio had failed to address his illegal drug

use and was in denial.

Silverio continuously asserted, both before and during the

termination hearing, that he had never used any drugs other than

marijuana, and the marijuana use had ended before S.B. was born. But

hair tests on A.B. and S.B. both came back positive for

methamphetamine when they were removed from Silverio’s care in March

2011. Silverio claimed to have provided a hair sample at the same time,

but the collecting agency had no record of it. Later Silverio shaved his

head and therefore did not have enough hair for a sample. Silverio did

have a urine test that detected methamphetamines in April, which he

claimed was a false positive. Also, A.B. recalled prior illegal drug use by

her father in her discussions with her therapist.
 19

Silverio denied having any substance abuse issues in both his

February and August 2011 substance abuse evaluations. The evidence

supports the juvenile court’s finding that he was not forthcoming in

these evaluations. In his August evaluation, he declined to disclose the

positive result in his April drug test.

In January 2011, and again in March 2011, Silverio was arrested

on drug-related charges, and both times he entered guilty pleas. The

juvenile court was entitled to find Silverio’s explanations for these

incidents self-serving and implausible. Silverio claimed he was the

victim of a friend’s decision to slip drugs into his jacket pockets in

January, although Silverio later pled guilty to possession of marijuana

and possession of prescription medication without a prescription. The

police report stated that when officers apprehended Silverio, he took off

the jacket so as not to be associated with it, knowing that it contained

illegal controlled substances. It also indicates that Silverio “admitted to

officers voluntarily that the pills were his.”

In March, Silverio was apprehended with a black duffel bag while

running away from the police. A digital scale, cocaine, and

methamphetamines were found on the ground in close proximity to him.

He ended up pleading to possession of drug paraphernalia. Yet at the

termination hearing, Silverio maintained he was not the owner of those

drugs, and there was no factual basis for the possession charge to which

he had pled guilty.

Along these lines, we find the November 2011 positive fingernail

test to be significant, regardless of the time period for which it

demonstrates that Silverio used methamphetamines. It is further

evidence that the April 2011 urinalysis did not produce a false positive,

that Silverio had been deceiving himself and others, and that he had
 20

failed to confront his history of illegal drug use. Also troubling was

Silverio’s delay in making himself available for the test, after he had

agreed to undergo the test.

Silverio’s participation in parenting services was commendable. To

his credit, he also did several other things. He remedied DHS’s concerns

about the inadequacy of his housing situation (although not until the

petition for termination of parental rights was pending), completed anger

management classes, and obtained full-time employment. However, we

believe the State demonstrated that Silverio’s unaddressed substance

abuse problem continued to exist at the time of the termination hearing

despite the receipt of services.

We have long recognized that an unresolved, severe, and chronic

drug addiction can render a parent unfit to raise children. See, e.g., In re

Interest of J.K., 495 N.W.2d 108, 112–13 (Iowa 1993) (terminating

parental rights where mother demonstrated unresolved drug dependency

and declining to take her “word that she stayed away from drugs”). “No

parent should leave his small children in the care of a meth addict—the

hazards are too great.” State v. Petithory, 702 N.W.2d 854, 859 (Iowa

2005). 6

The juvenile court concluded that if not for Silverio’s “denial of

drug use in the face of credible evidence to the contrary, reunification

6We believe the record also supports the juvenile court’s concerns about the
ongoing potential for domestic violence in the household if A.B. and S.B. were reunified
with Silverio. Despite having completed BEP in 2010, Silverio was arrested in May
2011 for an incident of domestic abuse toward Shannon. According to the police report,
Shannon told police that Silverio grabbed her arms causing red marks and spit in her
face. (Silverio denied this conduct at the termination hearing, claiming that was “just
the word of the neighbor who didn’t show up to testify”—not Shannon.) When the first
semi-supervised visit was scheduled, Shannon came with Silverio, having agreed to
drop the no-contact order two days before.
 21

would be achievable.” However, because of those denials, Silverio’s drug

problem was unresolved, and thus, he was “not in a position to provide

the safe and stable home [A.B. and S.B.] need and deserve.” The

evidence demonstrates that Silverio’s substance abuse issue continued

to place himself and others in danger despite his otherwise laudable

participation in services. We agree with the juvenile court’s

determination that, despite Silverio’s receipt of services to correct the

circumstances that led to the CINA adjudication, those circumstances

continued to exist at the time of the termination hearing. See Iowa Code

§ 232.116(1)(d).

C. Best Interests of the Children. Even after we have

determined that statutory grounds for termination exist, we must still

determine whether termination is in the children’s best interests. Iowa

Code § 232.116(2); see also In re Interest of P.L., 778 N.W.2d 33, 39 (Iowa

2010). In evaluating this issue, we “ ‘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.’ ” P.L., 778 N.W.2d at 39

(quoting Iowa Code § 232.116(2)); see also In re Interest of J.E., 723

N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially) (stating that

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

“defining elements” in determining a child’s best interests).

Both A.B. and S.B. were doing well in their respective foster

placements at the time of the hearing. In August 2011, S.B. told the

CASA volunteer that he liked Silverio because he bought him toys, but he

wanted to stay with his foster mother and father. The foster mother

testified that S.B. was “starting to build confidence.” In September, S.B.

repeatedly told his foster parents that he liked living with them because
 22

he no longer had to “worry” and he didn’t have to “hear all of the

fighting.” As of September 30, S.B. had not missed or been tardy for a

single day of school since his placement began in March. He was doing

well academically, making friends, and enjoying school so much that he

“never want[ed] to miss [it].” This was noteworthy because truancy

concerns in regards to S.B. were one of the reasons the children first

came to the attention of DHS in November 2010. Furthermore, S.B.’s

foster parents had indicated that they planned to adopt him and his half

brother D.G., thereby providing the permanent, safe, stable home

environment they deserve.

Likewise, A.B.’s therapist reported that A.B. was guarded around

Silverio and that her primary sense of security and safety was around

her foster family. According to the therapist, because of past trauma,

A.B. was “a very uncertain child” and “fearful of being rejected.” A.B.

clearly dreaded a possible reoccurrence of the unwelcoming environment

to which she had been exposed before.

By the time the termination hearing ended, A.B. and S.B. had been

out of the custody of their natural parents for over eight consecutive

months. While Silverio had clearly taken advantage of services offered by

DHS, the fact remained that during 2011 he had been involved in two

drug-related incidents and one incident of domestic violence. He

downplayed the latter incident and offered far-fetched denials of the

former incidents. Most importantly, he refused to acknowledge any

illegal drug use despite strong evidence to the contrary and despite the

additional concern raised by A.B. and S.B. having tested positive for

methamphetamine when they were removed from Silverio’s custody. We

agree with the juvenile court that “termination of parental rights is in the
 23

children’s best interest and would be less detrimental than the harm that

would be caused to them by continuing the parent/child relationship.” 7

“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.” P.L., 778 N.W.2d at 41. A.B.

and S.B. “simply cannot wait for responsible parenting. Parenting

cannot be turned off and on like a spigot. It must be constant,

responsible, and reliable.” In re Interest of L.L., 459 N.W.2d 489, 495

(Iowa 1990) (discussing the father’s lack of motivation to change and his

reversion to his old ways with respect to issues of domestic violence and

alcohol and drug abuse). “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 Interest of C.K., 558

N.W.2d 170, 175 (Iowa 1997).

“Insight for the determination of the child’s long-range best

interests can be gleaned from ‘evidence of the parent’s past performance

for that performance may be indicative of the quality of the future care

that parent is capable of providing.’ ” In re Interest of C.B., 611 N.W.2d

489, 495 (Iowa 2000) (quoting In re Interest of Dameron, 306 N.W.2d 743,

7In his petition on appeal, Silverio advances a cursory argument that
termination is not in the best interests of the children because it will potentially deprive
them of their Hispanic heritage. This issue was not raised below. Even if it had been
preserved below, we would still have to 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.’ ”
See P.L., 778 N.W.2d at 39 (quoting Iowa Code § 232.116(2)); see also In re F.W., 870
A.2d 82, 86 (D.C. 2005) (“[R]ace is simply a factor that may be considered by the trial
court in the process of determining the best interests of the child,” which “pale[s] into
insignificance when we compare the health needs of th[e] child . . . .” (citation and
internal quotation marks omitted)).
 24

745 (Iowa 1981)). In this case, Silverio’s overall track record is not a

good one, including termination of his parental rights to another child,

six founded child abuse reports, drug-related convictions, and incidents

of domestic abuse. We credit Silverio for important changes he has

made. But until he confronts his drug abuse issues, we share the views

of the judge on the scene that “his prognosis is poor.” 8

V. Conclusion.

For the foregoing reasons, we vacate the opinion of the court of

appeals and affirm the juvenile court’s judgment terminating Silverio’s

parental rights to A.B. and S.B.

COURT OF APPEALS DECISION VACATED; JUVENILE COURT

JUDGMENT AFFIRMED.

8Under the three-step process set forth in the statute, once a ground for
termination has been proved under section 232.116(1), and the factors under section
232.116(2) favor termination, the court should then decide whether it need not
terminate the relationship for any of the reasons set forth in section 232.116(3). P.L.,
778 N.W.2d at 40–41. Here, Silverio has not referenced section 232.116(3) in his
petition on appeal, although he has asserted there is a bond between the two children
and himself. See Iowa Code § 232.116(3)(c) (providing that the court need not terminate
the relationship between the parent and the child if the court finds “[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”). Assuming without deciding that
Silverio’s reference is sufficient to raise the issue, we concur in the juvenile court’s view
that there is a bond between Silverio and A.B. and S.B., but the children’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. See D.W., 791
N.W.2d at 709 (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”).