In the Interest of J.B. and J.B., Minor Children ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1065
Filed October 6, 2021
IN THE INTEREST OF J.B. and J.B.,
Minor Children,
D.B., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Stephen A. Owen,
District Associate Judge.
A father appeals from a district court order terminating his parental rights.
AFFIRMED.
Shannon M. Leighty of the Public Defender’s Office, Nevada, for appellant
father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Daniel Matasovic, attorney and guardian ad litem for the minor children.
Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.
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SCHUMACHER, Judge.
In this appeal, we must determine whether the record supports the
termination of a father’s parental rights.1 On our de novo review, we affirm the
district court order. Clear and convincing evidence supports a statutory ground the
district court relied on, termination is in the children’s best interest, and a
permissive exception should not be applied.
I. Background Facts and Proceedings.
The heart of this appeal concerns two boys, ages six and seven years old
at the time of the termination hearing. They came to the attention of the Iowa
Department of Human Services (DHS) in late 2019 due to domestic violence
between their parents, admission of marijuana use by the mother, and admission
of methamphetamine use by the father.2 The children were formally removed from
parental custody on New Year’s Eve 2019 and placed with their paternal
grandmother, where they remained for a full eighteen and one-half months, the
length of the underlying child-in-need-of-assistance (CINA) proceeding. No trial
home placement occurred.
A founded child abuse assessment was completed on January 13, 2020,
naming the father as the perpetrator of abuse for denial of critical care. Both
children were adjudicated CINA in March 2020 pursuant to Iowa Code section
232.2(6)(c)(2) and (n) (2020). Custody was placed with the paternal grandmother
under the protective supervision of DHS.
1 The mother did not appear at the termination hearing, but she was represented
by counsel. She does not appeal the termination order.
2 The mother denied the use of any other substances but later tested positive for
methamphetamine in June 2020.
3
Disposition was entered on April 20, wherein the court found clear and
convincing evidence existed to support the original grounds for adjudication.
Following a permanency hearing held on August 27, 2020, the court entered an
order under Iowa Code section 232.104(2)(b), continuing placement with the
paternal grandmother and granting an extension of six months for reunification
efforts. The court outlined specific action steps for the father, including abstaining
from all mood-altering substances, participating in drug testing and treatment, and
signing necessary releases. Another three months for reunification efforts was
granted following a February 2021 permanency review hearing.3
Following the permanency review hearing, the father struggled to maintain
sobriety. He failed to have a drug patch removed, reporting it was burned off at
work. While he took a second drug screen in March 2021 that was negative for all
substances, he failed to complete a drug screen in April. On May 4, approximately
two months before the termination hearing, the father was arrested for criminal
mischief, with law enforcement reporting the father exhibited signs of drug use,
specifically methamphetamine.4 Law enforcement reported the father was hitting
apartment doors with a hammer, was incoherent in his statements, and “appeared
to be hallucinating and kept claiming he could see people running away from us.”
3 This additional three months appears to have been granted due to concerns
about the offer of family centered services (FCS) to the mother, as the initial FCS
worker engaged in an intimate relationship with the father while providing FCS to
the mother. The father sent inappropriate sexually oriented communications to the
second assigned FCS worker, causing a third FCS worker to be recently assigned.
4 This incident took place in and near an apartment complex where the father
believed his former probation supervisor was located. The father also engaged in
an intimate relationship with his probation supervisor during the CINA proceeding.
Her employment with the Iowa Department of Corrections was terminated.
4
The father failed to sign a release to allow DHS to obtain the father’s current
treatment records. Following hearing on the State’s petition for termination held
on July 15, 2021, the district court terminated the father’s parental rights on July
19, 2021. The father timely appealed.
II. Standard of Review.
“We review proceedings terminating parental rights de novo.” 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)).
III. Analysis.
We use a three-step analysis to review termination of parental rights. In re
M.W., 876 N.W.2d 212, 219 (Iowa 2016). First, we “determine whether any ground
for termination under section 232.116(1) has been established.” Id. If we
determine “that a ground for termination has been established, then we determine
whether the best-interest framework as laid out in section 232.116(2) supports the
termination of parental rights.” Id. at 219–20. Finally, if we conclude the statutory
best-interest framework supports termination, “we consider whether any
exceptions in section 232.116(3) apply to preclude termination of parental rights.”
Id. at 220.
A. Whether a Ground for Termination Has Been Established.
When the court terminates parental rights on more than one statutory
ground, we may affirm the court’s order on any ground we find supported by the
record. D.W., 791 N.W.2d at 707. The district court concluded there were grounds
for termination under Iowa Code section 232.116(1)(e) and (f). For purposes of
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the father’s appeal, we focus on 232.116(1)(f). Under that section, the court may
terminate parental rights if:
(1) The child is four years of age or older.
(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 twelve of the last eighteen months, or
for the last twelve consecutive months . . . . [And,]
(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents
as provided in section 232.102.
Iowa Code § 232.116(1)(f).
The father does not contest the children meet the first three requirements.
He argues there is not clear and convincing evidence that at the time of the
termination hearing, the children could not be safely returned to his custody. We
reject this argument and conclude there is clear and convincing evidence that each
of the four requirements has been met under section 232.116(1)(f).
The father has been unable to adequately address a serious, pervasive
substance-abuse problem. He acknowledges his use of illegal substances began
at age fifteen, with daily intravenous use of methamphetamine beginning at age
twenty-nine. While he has been able to achieve short periods of sobriety, he has
not sustained sobriety. The father remains on probation for the domestic abuse
conviction that was in part responsible for the court’s initial involvement with the
children. While provided over eighteen months to place himself in a position to
parent his children, methamphetamine’s tight grip on the father has extinguished
his ability to safely parent his children. The children could not be placed in the
father’s custody at the time of the termination hearing without being subjected to
continued adjudicatory harm.
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B. Whether the Best-Interest Framework Supports Termination.
We next turn to whether the best-interest framework provided in section
232.116(2) supports termination. Section 232.116(2) provides in relevant part:
In considering whether to terminate the rights of a parent
under this section, 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.
“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.M., 843 N.W.2d at 112 (quoting In re P.L., 778 N.W.2d 33, 41
(Iowa 2010)). The “legislature has established a limited time frame for parents to
demonstrate their ability to be parents.” In re J.E., 723 N.W.2d 793, 800 (Iowa
2006). “Children simply cannot wait for responsible parenting.” In re C.K., 558
N.W.2d 170, 175 (Iowa 1997) (quoting In re L.L., 459 N.W.2d 489, 495 (Iowa
1990)).
After over eighteen months, the father has been unable to place himself in
a position to provide safety and stability for his children. While brief glimpses of
progress appeared, the father is no further along in his commitment to address his
long-standing issue with substances than when the children were initially removed.
Both children have fully integrated into their grandmother’s home. They
look to their grandmother and her husband to address their needs. The
grandmother has indicated a willingness to continue contact between the father
and the children under her supervision. The grandmother and her husband have
been approved for adoption. We conclude that termination of the father’s parental
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rights is in the children’s best interests to provide a permanent placement in an
adoptive home.
C. Whether Any Permissive Exceptions Apply to Avoid Termination.
“Once we have established that the termination of parental rights is in the
children’s best interests, the last step of our analysis is to determine whether any
exceptions in section 232.116(3) apply to preclude the termination.” M.W., 876
N.W.2d at 225. Section 232.116(3) provides,
The court need not terminate the relationship between the
parent and child if the court finds any of the following:
a. A relative has legal custody of the child.
b. The child is over ten years of age and objects to the
termination.
c. There is clear and convincing evidence that the termination
would be detrimental to the child at the time due to the closeness of
the parent-child relationship.
d. It is necessary to place the child in a hospital, facility, or
institution for care and treatment and the continuation of the parent-
child relationship is not preventing a permanent family placement for
the child.
e. The absence of a parent is due to the parent’s admission
or commitment to any institution, hospital, or health facility or due to
active service in the state or federal armed forces.
A finding of any of these factors allows the court to avoid terminating
parental rights, but the factors “are permissive, not mandatory.” A.M., 843 N.W.2d
at 113 (quoting In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App. 2011)). “We
may use our discretion, ‘based on the unique circumstances of each case and the
best interests of the child, whether to apply the factors in this section to save the
parent-child relationship.’” M.W., 876 N.W.2d at 225 (quoting A.M., 843 N.W.2d
at 113). “An appropriate determination to terminate a parent-child relationship is
not to be countermanded by the ability and willingness of a family relative to take
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the child. The child’s best interests always remain the first consideration.” C.K.,
558 N.W.2d at 174.
The father asserts two permissive exceptions apply to the children. First,
he alleges because custody is with a relative, termination of his parental rights
need not be entered. Second, he alleges termination of his parental rights would
be detrimental to his children due to the closeness of the relationship he shares
with them.
Although the child’s maternal grandmother has legal custody of the children,
we decline to apply the permissive exception in section 232.116(3)(a) to avoid
termination of the father’s parental rights.5 The DHS case manager recommended
termination and adoption. The guardian ad litem also recommended termination
of the father’s parental rights. We give weight to their testimony. See A.M., 843
N.W.2d at 112 (“It is significant to us that neither the third-party service providers
nor the [guardian ad litem] believed [the child] could be safely returned to her
parents at the time of trial.”).
Additionally, we decline to apply an exception to termination based on the
closeness of the father’s relationship with the children. We find the grandmother’s
testimony telling on this point. The grandmother noted that although the father
could have as much contact with the children as he wanted under their supervision,
he saw them only once every one to two weeks. Given this limited contact, the
bond has lessened, with the grandmother indicating that the separation was at first
5 The State argues the permissive exception in 232,116(3)(a) does not apply as
the grandmother does not have legal custody. However, this argument is contrary
to the record.
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“really hard for both of them” with the boys “crying in their beds at night.” The
children made improvements in their current placement. And while the
grandmother noted that both children love their father and enjoy their time with
him, both children expressed the separation did not bother them anymore because
they know they are staying with their grandparents. We, like the district court,
determine the father did not meet his burden to establish that termination of his
parental rights would be detrimental to the children.6
IV. Conclusion.
A statutory ground for termination was proven by clear and convincing
evidence, termination is in the children’s best interest, and no permissive exception
should be applied. For these reasons, we affirm the termination of the father’s
parental rights.
AFFIRMED.
6 The father offered exhibits at the termination hearing but did not testify.