IN THE COURT OF APPEALS OF IOWA
No. 18-2002
Filed March 6, 2019
IN THE INTEREST OF R.P., C.L., and B.T.,
Minor Children,
R.P., Father of R.P.,
Appellant,
T.L., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Colin J. Witt, District
Associate Judge.
Parents separately appeal juvenile court rulings in a termination-of-
parental-rights proceeding. AFFIRMED ON BOTH APPEALS.
Daniel M. Northfield, Urbandale, for appellant father.
Jesse A. Macro Jr. of Macro & Kozlowski, LLP, West Des Moines, for
appellant mother.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Michael Sorci of Youth Law Center, Des Moines, guardian ad litem for minor
children.
Considered by Tabor, P.J., Bower, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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SCOTT, Senior Judge.
Parents separately appeal juvenile court rulings in a termination-of-
parental-rights proceeding. Both parents challenge the termination of their
parental rights to a child they share, R.P., born in 2017. The mother additionally
appeals the termination of her parental rights to another of her children, C.L., born
in 2011.1 The mother also contests the juvenile court’s denial of her motion
regarding reasonable efforts as to R.P., C.L., and a third child, B.T., born in 2012.2
The father argues because R.P. was never “removed” from his care, the evidence
is insufficient to support the termination of his parental rights under Iowa Code
section 232.116(1)(h) (2018). The mother also challenges the sufficiency of the
evidence supporting the statutory grounds for termination of her parental rights.
Both parents argue termination of their parental rights is not in the children’s best
interests. Finally, the mother argues the State failed to make reasonable efforts in
relation to drug testing.
I. Background Facts and Proceedings
The children came to the attention of the Iowa Department of Human
Services (DHS) in October 2016 upon concern for domestic violence between the
mother and father in the children’s presence as well as the mother’s substance
abuse, mental health, and homelessness. The children were formally removed
from the mother’s care in March 2017. The father was incarcerated at this time.
The children were adjudicated to be in need of assistance in April.
1
The juvenile court also terminated C.L.’s father’s rights. He does not appeal.
2
B.T.’s father’s parental rights were not affected by these proceedings.
3
The mother has an extensive history of alcohol and substance abuse.
Although we acknowledge the mother has made significant strides in some areas
and is able to appropriately parent the children when she is not under the influence,
the mother continued to test positive for methamphetamine throughout the life of
the case. The mother continues to deny using drugs and refuses to acknowledge
it is a problem. The mother also suffers from a number of underlying mental-health
issues which negatively affect her ability to appropriately parent the children. The
father also has an extensive history of substance abuse spanning more than thirty
years. The father was in and out of jail throughout these proceedings and, at the
time of the termination hearing, was serving a term of imprisonment with an
expected release date in 2021. However, the father testified he was being
considered for release on “special parole” about a month after the termination
hearing. The father has not meaningfully participated in services, even during
periods he was not in jail. The father testified he has completed multiple classes
in prison relative to his fitness as a parent. R.P. has spent less than ten hours with
his father since his birth in February 2017. The evidence clearly and convincingly
establishes there is no bond between R.P. and his father.
The State ultimately petitioned for termination of parental rights. A hearing
was held in August 2018. In October, the juvenile court entered an interim ruling
finding the State met its burden for termination of both parents’ rights and
termination is in the children’s best interests.3 The court ordered an additional
3
Specifically, the court found the evidence sufficient for termination of the mother’s rights
under Iowa Code section 232.116(1)(f) as to C.L. and B.T. and section 232.116(1)(g) as
to all three children. The court found the evidence sufficient to terminate both parents’
rights to R.P. under section 232.116(1)(h).
4
hearing be held to consider the potential application of the statutory exceptions to
termination contained in Iowa Code section 232.116(3). In November, following
said hearing, the court declined to apply a statutory exception to termination as to
C.L. and R.P. The court placed those children in DHS custody for relative
adoption. However, the juvenile court declined to terminate the mother’s rights to
B.T., citing the statutory exception to termination contained in Iowa Code section
232.116(3)(a), which permits the court to forego termination if a relative has legal
custody of the child. As noted, both parents appeal.
II. Standard of Review
Appellate review of termination-of-parental-rights proceedings is de novo.
In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). “We are not bound by the juvenile
court’s findings of fact, but we do give them weight, especially in assessing the
credibility of witnesses.” Id. (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa 2014)).
Our primary consideration is the best interests of the child. In re J.E., 723 N.W.2d
793, 798 (Iowa 2006).
III. Analysis
A. Sufficiency of the Evidence
Both parents challenge the sufficiency of the evidence supporting the
statutory grounds for termination. We will consider their arguments in turn.
The father’s rights to R.P. were terminated under Iowa Code section
232.116(1)(h). He simply argues because R.P. was never “removed” from his
care, the evidence is insufficient to support the termination of his parental rights
under this provision. See Iowa Code § 232.116(1)(h)(3). In support of his position,
the father cites In re C.F.-H., 889 N.W.2d 201 (Iowa 2016). Bypassing the State’s
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error-preservation challenge, we again repeat our post C.F.-H. position that
removal of the child from one parent is sufficient to support the termination of
another parent’s parental rights. See, e.g., In re J.H., No. 18-1425, 2018 WL
5840198, at *2 (Iowa Ct. App. Nov. 7, 2018), further review denied (Dec. 4, 2018);
In re M.G., No. 18-0775, 2018 WL 3912208, at *2 (Iowa Ct. App. Aug. 15, 2018),
further review denied (Sept. 11, 2018); In re S.E., No. 17-1678, 2018 WL 542384,
at *4 (Iowa Ct. App. Jan. 24, 2018); In re K.H., No. 17-0384, 2017 WL 2189769, at
*2 (Iowa Ct. App. May 17, 2017); In re C.H., No. 16-2179, 2017 WL 1278368, at
*3 (Iowa Ct. App. Apr. 5, 2017); In re Z.G., No. 16-2187, 2017 WL 1086227, at *4
(Iowa Ct. App. Mar. 22, 2017); In re A.F., No. 16-2098, 2017 WL 936207, at *3
(Iowa Ct. App. Mar. 8, 2017). The child was formally removed from the mother’s
care in March 2017. We reject the father’s challenge.
The juvenile court terminated the mother’s rights to C.L. under section
232.116(1)(f) and (g) and to R.P. under section 232.116(1)(g) and (h). “On appeal,
we may affirm the juvenile court’s termination order on any ground that we find
supported by clear and convincing evidence.” In re D.W., 791 N.W.2d 703, 707
(Iowa 2010). We choose to focus on paragraph (f) as to C.L. and paragraph (h)
as to R.P. The mother only challenges the State’s establishment of the final
element of each of those provisions—that the children could not be returned to her
care at the time of the termination hearing. See Iowa Code § 232.116(1)(f)(4),
(h)(4) (requiring clear and convincing evidence that the child cannot be returned to
the custody of the child’s parents at the present time); D.W., 791 N.W.2d at 707
(interpreting the statutory language “at the present time” to mean “at the time of
the termination hearing”). We fully acknowledge that the mother has made great
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strides in a number of areas, and we commend her for her efforts. We also
recognize the mother is able to appropriately parent the children when she is not
under the influence. That being said, the mother continued to test positive for
methamphetamine throughout the life of the case.4 A child cannot be returned to
a parent if the child would be at risk of an adjudicatory harm upon return. See In
re A.M.S., 419 N.W.2d 723, 725 (Iowa 1988). Continued methamphetamine use
by a parent creates a risk of adjudicatory harm. See Iowa Code § 232.2(6)(n); see,
e.g., In re T.B., No. 18-1139, 2018 WL 4361181, at *2 (Iowa Ct. App. Sept. 12,
2018). We conclude the State met its burden to prove by clear and convincing
evidence that the children could not be returned to the mother’s care at the time of
the termination hearing.
B. Best Interests
Both parents argue termination of their parental rights is not in their
children’s best interests. Specifically, the father argues termination is contrary to
R.P.’s best interests because the father “desires to make the child part of his life,”
and loss of his natural father is not in R.P.’s best interests. In determining whether
termination is in the best interests of a child, 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.” Iowa Code § 232.116(2). Although the father testified he has
participated in prison classes relative to his fitness as a parent, he declined to
4
We acknowledge the mother tested negative for drugs on a number of occasions through
third-party testing. Upon our de novo review, we find the reliability of those tests
questionable.
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participate in services in an uncontrolled environment before his incarceration, and
R.P. has had virtually no contact with the father for his entire life. The “defining
elements in a child’s best interests” are the “child’s safety and his or her need for
a permanent home.” In re H.S., 805 N.W.2d 737, 748 (Iowa 2011) (quoting J.E.,
723 N.W.2d at 802 (Cady, J., concurring specially)). Even if the father is released
from prison in the near future, he has no relationship with his son and he has not
established himself as a fit parent outside of a custodial setting. Furthermore, this
child deserves permanency and stability now, which the father cannot provide.
Considering the child’s long-range as well as immediate interests, we find
termination of the father’s parental rights is in R.P.’s best interests.
The mother argues termination of her parental rights is not in the children’s
best interests because of “the closeness and the nature of the relationship between
the mother and children.” To some extent, the best-interests determination must
be made upon past conduct. See In re C.B., 611 N.W.2d 489, 495 (Iowa 2000).
A life of substance abuse is all this mother knows. While we hope the mother
prevails in her battle with substance abuse, “we cannot deprive a child of
permanency after the State has proved a ground for termination” upon such
sentiments. See In re A.B., 815 N.W.2d 764, 777 (Iowa 2012). The mother has
had ample time to get her substance abuse in check, and she has been unable to
do so. “Once the limitation period lapses, termination proceedings must be viewed
with a sense of urgency.” C.B., 611 N.W.2d at 495. While recognizing the mother
and children share a bond, we find it would be contrary to these children’s best
interests to continue to string them along while the mother gets her life together.
See A.B., 815 N.W.2d at 778. To the extent the mother is arguing the permissive
8
statutory exception to termination contained in Iowa Code section 232.116(3)(c)
should be applied, we disagree. In any event, although it is clear the children share
a bond with the mother, no evidence was presented that “termination would be
detrimental” to the children as a result of the severance of that bond. See Iowa
Code § 232.116(3)(c). Consequently, the mother failed to carry her burden to
establish the exception. See A.S., 906 N.W.2d at 476.
C. Reasonable Efforts
Finally, the mother argues the court erred in denying her motion concerning
reasonable efforts. Two days before the termination hearing in August 2018, the
mother filed a “motion to determine if reasonable efforts were made.” In the
motion, the mother referenced a March 2018 permanency order in which the
juvenile court ordered specific drug testing of the mother be completed in April,
May, and June. In her motion, the mother complained the specific protocol ordered
by the juvenile court was not followed and, as such, DHS failed to provide
reasonable efforts. However, a de novo review of the record reveals DHS made
reasonable efforts at following the protocol ordered by the juvenile court, and those
efforts were thwarted by the mother. We reject the mother’s reasonable-efforts
challenge.
IV. Conclusion
We affirm the termination of both parents’ parental rights.
AFFIRMED ON BOTH APPEALS.
In the Interest of R.P., C.L., and B.T., Minor Children
Combined Opinion