In the Interest of P.K., Minor Child ( 2018 )


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  •                         IN THE COURT OF APPEALS OF IOWA
    No. 18-0474
    Filed August 1, 2018
    IN THE INTEREST OF P.K.,
    Minor Child,
    B.K., Father,
    Appellant,
    S.K., Mother,
    Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld,
    District Associate Judge.
    A mother and a father separately appeal the termination of their parental
    rights to their child. AFFIRMED ON BOTH APPEALS.
    Brian D. Johnson of Jacobsen, Johnson & Wiezorek P.L.C., Cedar Rapids,
    for appellant father.
    Robert W. Davison, Cedar Rapids, for appellant mother.
    Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant
    Attorney General, for appellee State.
    Kimberly A. Opatz of Linn County Advocate, Cedar Rapids, guardian ad
    litem for minor child.
    Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
    2
    DOYLE, Judge.
    A mother and a father separately appeal the termination of their parental
    rights to their child. Our review is de novo. In re P.L., 
    778 N.W.2d 33
    , 40 (Iowa
    2010).
    [T]he proper analysis under section 232 is first for the court to
    determine if a ground for termination exists under section 232.116(1)
    [(2017)]. If a ground exists, the court may terminate a parent’s
    parental rights. 
    Iowa Code § 232.116
    (1). In considering whether to
    terminate, “the court shall 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.” 
    Id.
     § 232.116(2). Any findings in
    this regard should be contained in the judge’s decision. Finally,
    before terminating a parent’s parental rights, the court must consider
    if any of the exceptions contained in section 232.116(3) allow the
    court not to terminate. Id. § 232.116(3).
    Id. at 37. After undertaking this analysis, we affirm on both appeals.
    The child was born in September 2016 and tested positive for
    methamphetamine and carboxy-THC.               The mother admitted to smoking
    methamphetamine during the pregnancy, and the father admitted to using
    marijuana. The juvenile court adjudicated the child to be in need of assistance
    (CINA) within the meaning of Iowa Code section 232.2(6)(c)(2), (n), and (o). The
    court removed the child from the parents’ care due to the parents’ ongoing
    methamphetamine use and failure to submit to drug testing. A trial placement with
    the mother ended after the mother tested positive for methamphetamine.
    The juvenile court terminated the mother’s and the father’s parental rights
    under section 232.116(1)(h).        To terminate a parent’s rights under section
    232.116(1)(h), the court must find clear and convincing evidence establishes the
    following:
    3
    (1) The child is three years of age or younger.
    (2) The child has been adjudicated a [(CINA)] 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.
    Only the fourth element is in dispute. The question is whether returning the child
    to the parents at the time of the termination hearing would expose the child to the
    kind of harm that would lead to a CINA adjudication.              See 
    Iowa Code § 232.116
    (1)(h)(4) (requiring proof the child could not be returned to the parents
    “as provided in section 232.102 at the present time”); In re D.W., 
    791 N.W.2d 703
    ,
    707 (Iowa 2010) (interpreting the term “at the present time” to mean “at the time of
    the termination hearing”); In re M.M., 
    483 N.W.2d 812
    , 814 (Iowa 1992) (“[A] child
    cannot be returned to the parent under Iowa Code section 232.102 if by doing so
    the child would be exposed to any harm amounting to a new [(CINA)]
    adjudication.”).
    Clear and convincing evidence shows the court could not return the child to
    either parent’s care at the time of the termination hearing without exposing the
    child to harm that would lead to a CINA adjudication. Both parents have a lengthy
    history of substance abuse, and neither has demonstrated a significant period of
    sobriety. Both have denied methamphetamine use in contradiction of positive
    drug-test results. Their continued substance abuse exposes the child to harm that
    would lead to a CINA adjudication.
    4
    We next consider whether termination is in the child’s best interests. In
    making the best-interests determination, the primary considerations are “the child’s
    safety,” “the best placement for furthering the long-term nurturing and growth of
    the child,” and “the physical, mental, and emotional condition and needs of the
    child.” P.L., 
    778 N.W.2d at 37
     (quoting 
    Iowa Code § 232.116
    (2)). The “defining
    elements in a child’s best interest” are the child’s safety and “need for a permanent
    home.”    In re J.E., 
    723 N.W.2d 793
    , 802 (Iowa 2006) (Cady, J., concurring
    specially).
    Although the law requires a “full measure of patience with troubled parents
    who attempt to remedy a lack of parenting skills,” this patience has been built into
    the statutory scheme of chapter 232. In re C.B., 
    611 N.W.2d 489
    , 494 (Iowa 2000).
    Once the grounds for termination exist, time is of the essence. See In re A.C., 
    415 N.W.2d 609
    , 614 (Iowa 1987). “Importantly, . . . 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.” A.S., 
    906 N.W.2d 467
    , 474 (Iowa
    2018) (cleaned up).1 Children are not equipped with pause buttons; delaying
    permanency in favor of the parents is not in a child’s best interests. See A.C., 
    415 N.W.2d at 614
     (“The crucial days of childhood cannot be suspended while parents
    experiment with ways to face up to their own problems.”). Considering the child’s
    young age and need for permanency, termination is in the child’s best interests.
    1
    “Cleaned up” is a new parenthetical used to indicate that internal quotation marks,
    alterations, and citations have been omitted from quotations for readability purposes. See
    United States v. Steward, 
    880 F.3d 983
    , 986 n.3 (8th Cir. 2018); Jack Metzler, Cleaning
    Up Quotations, 
    18 J. App. Prac. & Process 143
     (Fall 2017).
    5
    Finally, both parents ask us to apply one of the exceptions to termination
    found in section 232.116(3).      That section provides that the court need not
    terminate parental rights in certain situations, which include when the child is in the
    legal custody of a relative and when termination would be detrimental to the child
    due to the closeness of the parent-child relationship. 
    Iowa Code § 232.116
    )(3)(a),
    (c). However, the exceptions found in section 232.116(3) are permissive, not
    mandatory. See 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
    . The decision to apply one of the
    statutory exceptions to termination is discretionary and depends on the child’s best
    interests under the circumstances of that particular case. See 
    id.
     Under the facts
    before us, we are unable to find applying any of the exceptions to the termination
    statute would advance the child’s best interests. Accordingly, we affirm.
    AFFIRMED ON BOTH APPEALS.