IN THE COURT OF APPEALS OF IOWA
No. 18-0163
Filed April 4, 2018
IN THE INTEREST OF J.M., A.M., M.M., and A.M.,
Minor Children,
D.M., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marion County, Steven W. Guiter,
District Associate Judge.
Father appeals from an order terminating his parental rights pursuant to
Iowa Code chapter 232 (2017). AFFIRMED.
Blake D. Lubinus of Lubinus Law Firm, PLLC, Des Moines, for appellant
father.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant
Attorney General, for appellee State.
William E. Sales III of Sales Law Firm, P.C., Des Moines, guardian ad litem
for minor children.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.
Derik appeals from an order terminating his parental rights in his four
children, J.M. (born 2012), M.M. (born 2014), A.M. (born 2015), and A.M. (born
2016), pursuant to Iowa Code section 232.116(1)(f) and (h) (2017). On appeal, he
contends the State failed to prove the statutory grounds authorizing the termination
of his parental rights, the district court should have granted him six months’
additional time to reunify with the children, and the strength of the parent-child
bond warrants preservation of the parent-child relationship.
This court reviews termination proceedings de novo. See In re A.M., 843
N.W.2d 100, 110 (Iowa 2014). The statutory framework authorizing the termination
of a parent-child relationship is well established and need not be repeated herein.
See In re P.L., 778 N.W.2d 33, 39 (Iowa 2010) (setting forth the statutory
framework).
We first address the sufficiency of the evidence supporting the statutory
grounds authorizing the termination of Derik’s parental rights. At issue here is only
the fourth element of section 232.116(1)(f) and (h). To authorize the termination
of a parent’s rights pursuant to these provisions, we have required the State to
prove by “clear and convincing evidence the children would be exposed to an
appreciable risk of adjudicatory harm if returned to the parent’s custody at the time
of the termination hearing.” In re E.H., No. 17-0615, 2017 WL 2684420, at *1 (Iowa
Ct. App. June 21, 2017).
On de novo review, we conclude the State proved the children could not be
returned to Derik’s care at the time of the termination hearing. The family first
came to the attention of the Iowa Department of Human Services (IDHS) in 2014
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when M.M. was born and tested positive for oxycodone. The family was offered
services in response. The family again came to the attention of IDHS when the
youngest child was born and the cord blood tested positive for unprescribed
oxycodone. The mother admitted to use of unprescribed opioids. She was unsure
what controlled substances Derik was abusing, but she knew he had abused
Vicodin. Upon inquiry, maternal relatives expressed concerns to IDHS regarding
the parents’ abuse of controlled substances. After the parents evaded IDHS on
multiple occasions and failed to appear for drug tests, IDHS removed the children
from the home in October 2016.
At the time of the termination hearing Derik had an outstanding warrant and
was to be immediately transported to jail. Derik’s status prevented the children
from being returned to his care and satisfies Iowa Code section 232.116(1)(f) and
(h). See In re A.P., No. 17-1830, 2018 WL 540985, at *3 (Iowa Ct. App. Jan. 24,
2018) (finding incarceration at the time of the termination hearing satisfies the
requirements of section 232.116(1)(f) and (h)); In re D.S., No. 16-1149, 2016 WL
5408175, at *1 (Iowa Ct. App. Sept. 28, 2016) (finding sufficient grounds for
termination where “The father admitted at the combined permanency review and
termination-of-parental-rights hearing that he could not care for his child at that
time due to his incarceration”).
The State also proved the children would be exposed to an appreciable risk
of adjudicatory harm if returned to Derik’s care due to Derik’s untreated substance-
abuse addiction. Derik admitted he was an opioid addict. By his own account,
Derik attempted to complete substance-abuse treatment on five separate
occasions while this case was pending. On two occasions, he was unsuccessfully
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discharged from treatment. On two occasions, IDHS contacted the treatment
provider and learned Derik was not enrolled in any treatment program and Derik
had misrepresented his treatment status to the department. In July 2017, Derik
did actually enroll for substance-abuse treatment, but his counselor reported
Derik’s attendance was sporadic. Untreated substance abuse can create an
appreciable risk of adjudicatory harm to the children where, as here, there is
evidence establishing the children have already been exposed to the drug. See,
e.g., In re A.B., 815 N.W.2d 764, 776 (Iowa 2012) (noting drug addiction can render
a parent unable to care for children); In re L.S., No. 17-1824, 2018 WL 540968, at
*1 (Iowa Ct. App. Jan. 24, 2018) (providing untreated substance abuse can create
a risk of harm to the children); In re R.P., No. 16-1154, 2016 WL 4544426, at *2
(Iowa Ct. App. Aug. 31, 2016) (affirming termination of parental rights of parent
with history of drug abuse); In re H.L., No. 14-0708, 2014 WL 3513262, at *3 (Iowa
Ct. App. July 16, 2014) (affirming termination of parental rights when parent had
history of substance abuse).
In addition, the State established Derik would not be able to meet the basic
needs of the children if returned to his care. Over his lifetime, Derik has
demonstrated an inability to maintain employment and obtain stable housing. At
the time of the termination hearing, Derik was living with his mother. The inability
to meet the basic needs of the children supports the termination of Derik’s parental
rights. See In re E.R., No. 14-1816, 2015 WL 162177, at *3 (Iowa Ct. App. Jan.
14, 2015) (discussing mother’s financial instability and inability to meet the child’s
basic needs as one basis for termination); In re J.A., No. 13-0735, 2013 WL
4012434, at *2 (Iowa Ct. App. Aug. 7, 2013) (noting mother’s financial instability
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as significant factor in termination); In re K.K., No. 02-0350, 2002 WL 987376, at
*1 (Iowa Ct. App. May 15, 2002) (same).
Derik’s financial insecurity and inability to maintain stable housing is
particularly troubling here. Three of the four children have special needs and
require extra attention for appropriate development and basic safety. Derik has
not demonstrated any interest or ability in meeting the children’s special needs. In
the six months prior to the termination hearing, Derik did not exercise visitation
with the children for the entire month of August, when he left the state without
notifying IDHS. When he returned to the state, he missed five additional
visitations. At the termination hearing, Derik admitted the children’s mother was
responsible for the day-to-day caregiving of the children. He testified he did not
know the identity of the children’s doctor or dentist. He admitted he had little
knowledge regarding the special needs of the children. He admitted he was
unaware the children were behind on vaccinations. He did not know any of the
children’s birthdays. The service provider testified Derik had difficulty watching the
children during his supervised visitations. Derik’s lack of interest and inability to
meet the special needs of his children also militates in favor of the termination of
his parental rights. See In re J.E., 723 N.W.2d 793, 799 (Iowa 2006) (finding
termination was appropriate where mother could not care for the child based on
his special needs); In re K.G., 2017 WL 2189768, at *4 (Iowa Ct. App. May 17,
2017) (“Ruby’s inability to provide for the basic needs of the children is of particular
concern because the children have heightened needs.”).
Derik seems to acknowledge there are sufficient grounds supporting the
termination of his parental rights and focuses most of his argument on his request
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for an additional six months to progress towards reunification with the children.
Pursuant to Iowa Code section 232.104(2)(b) the court may enter an order
deferring permanency for six months upon a finding the need for the children’s
removal will no longer exist at the end of the additional six-month period. The court
must “enumerate the specific factors, conditions, or expected behavioral changes
which comprise the basis for the determination” the need for removal will no longer
exist at the end of the extension. Iowa Code § 232.104(2)(b). “The court may look
at a parent’s past performance” in determining if such a deferral is appropriate. In
re T.D.H., 344 N.W.2d 268, 269 (Iowa Ct. App. 1983). “The judge considering
[deferred permanency] should however constantly bear in mind that, if the plan
fails, all extended time must be subtracted from an already shortened life for the
children in a better home.” In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005).
In support of his request for additional time, Derik notes he did begin to
engage in more services near the end of the case. For example, Derik noted he
completed a parenting class and had started attending—although sporadically—
substance-abuse treatment. He also noted he had recently obtained regular
employment. Derik also testified he would now be more motivated to achieve
change because there would be a fixed deadline.
While Derik’s recent engagement with services is commendable, it is too
little too late to preclude termination of his parental rights. See In re A.E., No. 16-
0510, 2016 WL 3271887, at *2 (Iowa Ct. App. June 15, 2016). There has always
been a fixed deadline in this case, and Derik was still unmotivated to make
changes until the eve of the termination hearing. The record shows Derik had little
interest in complying with services or parenting until the time of the termination
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hearing. He failed to engage in substance abuse treatment and misrepresented
his treatment status throughout the life of the case. He was often silent at family
team meetings, missed significant amounts of visitation leading up to the
termination hearing, and was unable to recall basic information about his children
under oath. The guardian ad litem reported the termination hearing was the first
time Derik had shown interest in the children throughout the past year and a half.
It is well established that “[a] parent cannot wait until the eve of termination . . . to
begin to express an interest in parenting.” In re C.B., 611 N.W.2d 489, 495 (Iowa
2000). We affirm the district court’s decision to decline Derik’s request to afford
him more time. “Children simply cannot wait for responsible parenting.” In re L.L.,
459 N.W.2d 489, 495 (Iowa 1990).
Derik argues this court should exercise its discretion to preserve the parent-
child relationship based on the close bond he has with his children. The factors
outlined in 232.116(3) are permissive, not mandatory. See In re A.S., 906 N.W.2d
467, 475 (Iowa 2018). “Once the State has proven a ground for termination, the
parent resisting termination bears the burden to establish an exception to
termination.” Id. at 476.
Derik failed to meet his burden of establishing an exception. While he did
visit with the children, his visitation was sporadic. The children are all very young
and have been out of Derik’s care for a significant portion of their lives. In
particular, the younger children have spent little time with Derik, certainly too little
time to form any meaningful bond. The children seem happy and are well-adjusted
to their pre-adoptive placement with their maternal aunt and uncle. The aunt and
uncle have demonstrated the willingness and ability to tend to the children’s special
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needs. Any detriment to the children due to the termination of Derik’s parental
rights pales in comparison to the benefits of being placed in a stable, safe, and
permanent home.
We affirm the judgment of the district court.
AFFIRMED.