IN THE COURT OF APPEALS OF IOWA
No. 19-1115
Filed November 6, 2019
IN THE INTEREST OF P.H.,
Minor Child,
T.H., Father,
Appellant,
S.H., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Chickasaw County, Linnea M.N.
Nicol, District Associate Judge.
A mother and father both appeal the termination of their parental rights to
their one-year-old daughter. AFFIRMED ON BOTH APPEALS.
Ann M. Troge, Charles City, for appellant father.
Becky Wilson of Elwood, O’Donohoe, Braun, White, LLP, Charles City, for
appellant mother.
Thomas J. Miller, Attorney General, and Anna T. Stoeffler (until withdrawal)
and Mary A. Triick, Assistant Attorneys General, for appellee State.
Andrew Thalacker of the Juvenile Public Defender Office, Waterloo,
guardian ad litem for minor child.
Considered by Tabor, P.J., and Mullins and May, JJ.
2
TABOR, Presiding Judge.
This appeal arises from the termination of parental rights of Samantha and
Travis to their one-year-old daughter, P.H. Each parent appeals separately.
Samantha contends the State did not prove the statutory grounds for termination.
Additionally she contends the court erred in finding an additional period of
rehabilitation would not remedy the situation. Travis appeals on similar grounds.
The juvenile court found P.H. could not be returned to her parents now or in the
foreseeable future and their rights should be terminated. After reviewing the record
and legal arguments presented,1 we reach the same result as the juvenile court.
I. Facts and Prior Proceedings
P.H. was born in May 2018. Her family came to the attention of the Iowa
Department of Human Services (DHS) in December 2017 when Samantha was
pregnant with P.H. Because Samantha tested positive for methamphetamine
during her pregnancy and Travis was uncooperative, the court granted the DHS’s
request for a temporary removal of P.H. following her birth. The DHS returned the
child to her parents in mid-June 2018. But the next month, the DHS requested the
temporary removal of P.H. again after both parents missed multiple drug
screenings. Travis tested positive during a screening, and Samantha provided a
contaminated test. In late July, the DHS placed P.H. with Samantha’s sister and
1
We review termination-of-parental-rights cases de novo. In re M.W., 876 N.W.2d 212,
219 (Iowa 2016). While not bound by the juvenile court’s fact findings, we give them
weight, particularly on credibility issues. Id. The State must present clear and convincing
evidence to support the termination. In re A.M., 843 N.W.2d 100, 110–11 (Iowa 2014).
Evidence satisfies that standard if no serious or significant doubts exist about the
correctness of conclusions of law drawn from the proof. In re C.B., 611 N.W.2d 489, 492
(Iowa 2000). The child’s best interests remain our primary concern. In re L.T., 924 N.W.2d
521, 529 (Iowa 2019).
3
her husband.2 Samantha and Travis maintained contact with P.H. through
supervised visits.
In mid-August 2018 the court adjudicated P.H. as a child in need of
assistance (CINA), as defined in Iowa Code section 232.2(6)(c)(2) (2018), because
both parents tested positive for methamphetamine and Travis had been violent
toward Samantha.
In early October 2018, the court adopted a permanency plan listing changes
that Samantha and Travis had to make for P.H. to return to their custody safely.
The plan directed Samantha to participate in a substance-abuse evaluation and
follow through with the recommendations, individual therapy, medication
management, and random drug testing. The plan also required Samantha to meet
with the DHS worker monthly; meet with the family safety, risk, and permanency
(FSRP) provider weekly; follow recommendations of the child’s early access
evaluation; attend and participate in visitation; and maintain safe and stable
housing. The plan included the same requirements for Travis—minus individual
therapy and medication management. Also if the couple planned to remain
together they needed to participate in couples counseling and address their
domestic-violence issue.
Neither parent followed through with the plan. They attended only four of
thirteen requested drug tests. One time Samantha went to the testing facility but
she refused to submit to testing when the monitor requested a hair sample. The
2
This maternal aunt and uncle adopted Samantha’s previous child with Travis after the
court terminated their legal rights.
4
parents also failed to address the issue of Travis’s violence toward Samantha. And
they were inconsistent in their visitations.
The State filed a petition to terminate parental rights in January 2019. The
court held a hearing in May and issued its order terminating rights in June 2019.
The order relied on Iowa Code section 232.116(1)(g) and (h) (2019) for both
Samantha and Travis. The parents challenge that order in separate petitions on
appeal.
II. Analysis
The termination of parental rights follows three steps. In re D.W., 791
N.W.2d 703, 706–07 (Iowa 2010). First, we must decide if the evidence satisfies
a ground for termination asserted under section 232.116(1). Id. If so we then
apply the best-interests framework of section 232.116(2). Id. at 707. If termination
is in the child’s best interests, then we consider whether any factor in section
232.116(3) should preclude termination. Id.
Statutory Ground for Termination
Both parents argue the State failed to prove by clear and convincing
evidence that their rights should be terminated under paragraphs (g) and (h). On
appeal we only need to find sufficient evidence of one of the grounds to affirm the
ruling. See In re J.B.L., 844 N.W.2d 703, 704 (Iowa Ct. App. 2014). Here, we
focus our analysis on paragraph (h).
Section 232.116(1)(h) permits the court to terminate parental rights when:
(1) The child is three years of age or younger; (2) the child has been adjudicated
a CINA under section 232.96; (3) the child has been removed from the physical
custody of the parents for at least six months of the past twelve months, or for the
5
last six consecutive months and any trial period at the home was less than thirty
days; and (4) there is clear and convincing evidence that the child cannot be
returned to the parents as provided in section 232.102 at the present time.
The first three elements are uncontested. P.H. was one year old,
adjudicated as a CINA in August 2018, and living with her maternal aunt for at least
six months.
i. Samantha’s rights
Samantha argues the State failed to prove by clear and convincing
evidence that she lacks the ability or willingness to respond to services that would
remedy the situation and that P.H. could not be returned to her within a reasonable
time. That argument appears to address paragraph (g).3
Samantha does not address the fourth element of subsection (h), that the
child cannot be returned “at the present time.” See A.M., 843 N.W.2d at 111
(interpreting statutory language “at the present time” as the time of the termination
hearing). Even if Samantha had contested this element, the record supports the
juvenile court’s decision that P.H. could not be safely returned to her mother’s care.
3
The court finds that all of the following have occurred:
(1) The child has been adjudicated a child in need of assistance
pursuant to section 232.96.
(2) The court has terminated parental rights pursuant to section
232.117 with respect to another child who is a member of the same family
or a court of competent jurisdiction in another state has entered an order
involuntarily terminating parental rights with respect to another child who is
a member of the same family.
(3) There is clear and convincing evidence that the parent continues
to lack the ability or willingness to respond to services which would correct
the situation.
(4) There is clear and convincing evidence that an additional period
of rehabilitation would not correct the situation.
Iowa Code § 232.116(1)(g).
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Samantha failed to show up for many drug tests, missed visits with P.H., and
overall failed to comply with the permanency plan.
We recognize Samantha has demonstrated some good parenting skills and
has made an effort to access certain services she needs. But P.H. is still very
young and cannot protect herself in a risky situation. And the record reveals
persistent problems surrounding Samantha’s drug use, her fraught relationship
with Travis, her financial instability, and housing. Because Samantha has not
adequately addressed these problems, we find termination of parental rights is
proper under section 232.116(1)(h). See In re Dameron, 306 N.W.2d 743, 755
(Iowa 1981) (finding insights into what the future holds if a child is returned from
evidence of the parent’s past performance).
ii. Travis’s rights
Travis also argues the State has not provided clear and convincing
evidence that P.H. could not be returned to him in a reasonable time. He contends
he is sober and has attended “multiple counseling sessions as directed by the
court.” Like Samantha, Travis fails to argue P.H. could be returned to his care at
the “present time.”
We agree with the juvenile court’s decision to terminate Travis’s rights under
paragraph (h). Travis failed to appear for many drug tests ordered as part of the
permanency plan, and he tested positive for methamphetamines at least once.4
Travis has shown hostility toward DHS workers and others. See In re M.B., 595
4
Travis maintains the DHS tampered with test results and argues he has tested “clean”
through a different service. The record does not support his claim that DHS tampered
with the test results.
7
N.W.2d 815, (Iowa Ct. App. 1999) (finding threatening behavior towards social
workers as equivalent to rejecting services). In the same vein, Travis did not take
any action to address his abuse toward Samantha. In fact, he denied any domestic
violence in the relationship. And he was inconsistent with visitations with P.H. On
this record, P.H. could not have been safely returned to his care at the time of the
termination hearing.
B. Best Interests of the Child
Both parents argue it is not in P.H.’s best interests to have their rights
terminated. See Iowa Code § 232.116(2) (requiring courts to give primary
consideration to the child’s safety; to the best placement to further her long-term
nurturing and growth; and to her physical, mental, and emotional needs). Both
parents claim P.H. has a strong bond with them and that they have exhibited good
parenting skills.
The record does show glimpses of good parenting skills, such as concern
for the child’s safety while in a car seat and attention to her various health
concerns. But after reviewing the record as a whole, we conclude termination of
parental rights will best advance the child’s safety and long-term well-being. While
we recognize the love and bond the parents have with their child, the substance-
abuse issues and relationship instability render the parents unable to care for her.
See In re J.K., 495 N.W.2d 108, 113 (Iowa 1993).
P.H. is currently living with her maternal aunt who has already adopted
P.H.’s biological sibling. See In re of A.M.S., 419 N.W.2d 723, 734 (Iowa 1988)
(extolling preference for keeping siblings together).
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C. Additional Time for Reunification
Finally, both parents argue the juvenile court erred in denying them an
additional six months to reunify under section 232.104(2)(b). Under that section,
the court can only delay permanency if it can “enumerate the specific factors,
conditions, or expected behavioral changes which comprise the basis for the
determination that the need for removal of the child from the child’s home will no
longer exist at the end of the additional six-month period.” A parent’s past
performance gives insight into the future care they may provide. In re R.K.B., 572
N.W.2d 600, 601 (Iowa 1998).
Here, the parents insist they have been pursuing different therapy and
treatment options. But we are mindful of their failure to follow the previous
reunification plan. Both Samantha and Travis have had their relationships with
other children terminated under previous juvenile proceedings. And their
continuing substance abuse indicates an additional six months will not be sufficient
to gain the stability necessary to resume custody of P.H. A child should not have
to wait in the limbo of foster care because of a parent’s inability to provide a safe
and drug-free home. In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). We agree with
the district’s decision denying additional time.
AFFIRMED ON BOTH APPEALS.