IN THE COURT OF APPEALS OF IOWA
No. 21-0428
Filed July 21, 2021
IN THE INTEREST OF J.R.,
Minor Child,
J.R., Father,
Appellant.
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Appeal from the Iowa District Court for Scott County, Christine Dalton,
District Associate Judge.
A father appeals the termination of his parental rights. AFFIRMED.
Kim Aboyure, Davenport, for appellant father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Barbara E. Maness, Davenport, attorney and guardian ad litem for minor
child.
Considered by May, P.J., and Greer and Ahlers, JJ.
2
AHLERS, Judge.
The father of J.R., born in May 2019, appeals the termination of his parental
rights.1 The family came to the attention of the Iowa Department of Human
Services (DHS) shortly before the child’s birth over concerns the mother was using
illegal substances. Both parents tested positive for methamphetamine and
amphetamines then, as did the child’s umbilical cord after birth.
After birth, the family lived with the paternal grandparents, and the DHS
developed a safety plan under which the grandparents agreed to supervise all
contact between the parents and child. As the parents failed to fully engage with
substance-abuse testing and treatment, the juvenile court adjudicated the child in
need of assistance. The court at first allowed the parents to maintain custody of
the child under the safety plan, but due to multiple positive drug tests from both
parents, the court removed the child from the parents’ custody while still allowing
the parents to remain in the grandparents’ residence. The month after the removal
order issued, the child tested positive for amphetamines and methamphetamine.
As a result, the parents agreed to move out of the grandparents’ home to avoid
placing the child in foster care.
Based on perceived lack of progress by the parents, the State initiated
termination-of-parental-rights proceedings against the parents. Following a
hearing, the juvenile court terminated the parental rights of both parents under
Iowa Code section 232.116(1)(d) and (h) (2021).
1The mother’s parental rights were also terminated. She filed notice of appeal,
but her appeal was dismissed for violating other appellate filing requirements.
3
“We review proceedings terminating parental rights de novo.” In re A.S.,
906 N.W.2d 467, 472 (Iowa 2018) (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa
2014)). “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 D.W., 791 N.W.2d 703, 706 (Iowa 2010)).
The father begins by challenging the statutory grounds for termination. “On
appeal, we may affirm the juvenile court’s termination order on any ground that we
find supported by clear and convincing evidence.” D.W., 791 N.W.2d at 707. We
choose to analyze the statutory ground under section 232.116(1)(h), which allows
the court to terminate parental rights if it finds all of the following:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least six months of the last twelve months,
or for the last six consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that the child
cannot be returned to the custody of the child’s parents as provided
in section 232.102 at the present time.
The father only challenges the evidence supporting the fourth element, claiming
the child could be returned to his custody at the time of the termination hearing.
See 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”).
Throughout nearly two years of DHS involvement, the father has tested
positive for amphetamines and methamphetamine multiple times. The most recent
drug test—a hair-stat test collected less than two weeks before the termination
hearing—was positive for amphetamines and methamphetamine. The parents’
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substance abuse has meaningfully endangered the child, as reflected in the child’s
positive drug tests. A DHS worker assigned to this case testified he could not
verify the father had any period of sobriety throughout DHS involvement. A
counselor testified the father has been “in denial” and lacks “insight into his
addiction.” Similarly, the DHS report to the court for consideration at the
termination hearing notes the father “does not appear to believe his addiction is
still an ongoing issue for him, despite the ongoing positive test results.”
The father asserts he interacts well with the child, he is attending substance-
abuse and mental-health treatment, and he has provided negative drug tests for
his job since securing employment in October 2020. We recognize the father has
made recent progress, but this progress cannot overcome the serious concerns
over his largely unaddressed addiction. See In re C.B., 611 N.W.2d 489, 495 (Iowa
2000) (“A parent cannot wait until the eve of termination, after the statutory time
periods for reunification have expired, to begin to express an interest in
parenting.”). Throughout nearly two years of DHS involvement, the father has
consistently tested positive for illegal substances while downplaying his addiction.
The parents’ addiction has already led to positive drug tests and real harm to the
child. To the extent the father relies on his job as motivation to remain sober, he
is off work for up to six months while he recovers from an injury. We agree the
child cannot be returned to the father’s custody, and we find the State proved a
ground for termination under section 232.116(1)(h).
The father also argues termination is not in the child’s best interests. See
Iowa Code § 232.116(2); In re 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
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permanent home are the "defining elements" in determining a child’s best
interests). As explained above, the father has long-term addiction issues that he
has, at most, only begun to address. The father’s addiction presents a serious
danger to the child no matter how strong his other parenting skills are. We agree
termination is in the child’s best interests.
Finally, the father requests the child be placed in a guardianship with the
grandparents instead of terminating his parental rights. However, “a guardianship
is not a legally preferable alternative to termination.” A.S., 906 N.W.2d at 477
(quoting In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App. 2017)). The child has already
been the subject of DHS involvement since birth, and a guardianship would
continue to leave the child in limbo in the hopes the father will meaningfully address
his substance-abuse issues. See id. at 478 (“The child, who is now two years old,
deserves a normal life with an adoptive family.”). Furthermore, the grandparents
were unable to protect the child from the parents’ substance abuse during this
proceeding, and the threat of repeat exposure would continue if the child were
placed in a long-term guardianship with the grandparents. We agree a
guardianship is not an appropriate alternative to termination in this case.2
AFFIRMED.
2 To the extent the father also argues termination is not needed because the
grandparents have legal custody of the child, see Iowa Code section
232.116(3)(a), we agree the grandparents having custody should not preclude
termination under the circumstances present in this case. See In re L.M.F., 490
N.W.2d 66, 68 (Iowa Ct. App. 1992) (stating termination is generally in the child’s
best interests “if the grounds for termination of parental rights exist,” even if a
relative has custody of the child).