IN THE COURT OF APPEALS OF IOWA
No. 16-1501
Filed November 9, 2016
IN THE INTEREST OF J.H.,
Minor child,
C.H., Father,
Appellant,
J.M., Mother,
Appellant.
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Appeal from the Iowa District Court for Calhoun County, Adria A.D. Kester,
District Associate Judge.
A mother and a father appeal the termination of their parental rights.
AFFIRMED ON BOTH APPEALS.
Joseph L. Tofilon of Thatcher, Tofilon & Livingston, P.L.C., Fort Dodge, for
appellant father.
Jeffrey S. Kuchel of Shors & Thomas, Pocahontas, for appellant mother.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Martha A. Sibbel of the Law Office of Martha Sibbel P.L.C., Carroll,
guardian ad litem for minor child.
Considered by Danilson, C.J., and Doyle and McDonald, JJ.
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DOYLE, Judge.
The mother and the father of J.H. appeal the order terminating their
parental rights. We review their claims de novo. See In re P.L., 778 N.W.2d 33,
40 (Iowa 2010). On de novo review, we are not bound by the juvenile court’s fact
findings, although we give them deference. See In re D.W., 791 N.W.2d 703,
706 (Iowa 2010). “We will uphold an order terminating parental rights if there is
clear and convincing evidence of grounds for termination under Iowa Code
section 232.116 [(2015)].” Id.
The Iowa Department of Human Services removed the child from the
parents’ care at birth after the child tested positive for methamphetamine and
oxycodone. The mother admitted she and the father actively used
methamphetamine throughout her pregnancy. After several months in foster
care, the child was placed in the care of a paternal uncle and his wife, where the
child remains.
After delaying termination for six months, the juvenile court eventually
terminated the mother’s and the father’s parental rights under Iowa Code section
232.116(1)(h). There is no dispute that the State proved the grounds for
termination under this section. See P.L., 778 N.W.2d at 40 (noting that the court
need not analyze whether the grounds for termination exist under section
232.116(1) where the parent does not dispute the existence of the grounds for
termination). Neither parent was in a position to care for the child at the time of
the termination-of-parental-rights hearing. Both admitted to substance abuse
and addiction issues. Neither had completed the recommended mental health or
substance abuse treatment. The mother tested positive for methamphetamine
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just three weeks before the hearing and was facing charges for possession of
methamphetamine. The father pled guilty to four felony charges and, as a result,
faced a sentence of up to forty-five years in prison.
The parents instead argue termination is not in the child’s best interests,
citing their bond with the child.1 See Iowa Code § 232.116(2) (listing the child’s
emotional condition and needs as factors to consider in determining whether to
terminate parental rights). We disagree. Although delaying the termination
decision may serve the parents’ best interests, it is not in the best interests of the
child.
The record shows the paternal uncle and his wife have bonded with the
child, provided a safe home, and met the child’s physical and emotional needs.
They have a bond with the child and are willing to adopt the child to provide a
permanent home. In contrast to the stability and consistency the paternal uncle
and his wife have provided the child, the parents can offer nothing more than the
hope that they may one day be able to do better.
“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. Children require permanency. See
In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially)
1
The mother argues that placing the child in the guardianship of the paternal uncle and
aunt is in the child’s best interests. See Iowa Code § 232.104(2)(d)(1) (providing that
after a permanency hearing, the court may enter an order transferring guardianship and
custody of the child to a suitable person). However, before the court may enter a
guardianship order, it must first find that terminating parental rights is not in the child’s
best interests. See id. § 232.104(3)(a). Our resolution of the best interests argument
forecloses this claim.
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(noting the “defining elements in a child’s best interest” are the child’s safety and
“need for a permanent home”). Here, the juvenile court gave the parents six
additional months to demonstrate they could provide a home for the child, and
they were unable to do so. Delaying permanency any further is not in the child’s
best interests. As we have stated numerous times, children are not equipped
with pause buttons. “The crucial days of childhood cannot be suspended while
parents experiment with ways to face up to their own problems.” In re A.C., 415
N.W.2d 609, 613 (Iowa 1987); see also In re D.J.R., 454 N.W.2d 838, 845 (Iowa
1990) (“We have long recognized that the best interests of a child are often not
served by requiring the child to stay in ‘parentless limbo.’” (citation omitted)); In re
Kester, 228 N.W.2d 107, 110-11 (Iowa 1975) (refusing to “gamble with the
children’s future” or force the children to “await their [parent]’s maturity” where
the parent’s history shows “good intentions, but feeble resistance to temptation
and wrongdoing”).
The parents also seek to avoid termination of their parental rights under
one of the exceptions set forth in section 232.116(3). These exceptions are
permissive, not mandatory. See also In re C.L.H., 500 N.W.2d 449, 454 (Iowa
Ct. App. 1993), overruled on other grounds by P.L., 778 N.W.2d at 39-40. We
may apply the exceptions in our discretion based on the circumstances of each
case and the child’s best interests. See id. Having found termination is in the
child’s best interests, we decline to apply any exception to termination provided
in section 232.116(3). Accordingly, we affirm.
AFFIRMED ON BOTH APPEALS.