In the Interest of J.J., A.M., and T.T., Minor Children ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1104
Filed November 2, 2022
IN THE INTEREST OF J.J., A.M., and T.T.,
Minor Children,
T.T., Father,
Appellant,
C.M., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,
District Associate Judge.
Two fathers appeal the termination of their parental rights. AFFIRMED ON
BOTH APPEALS.
John C. Audlehelm of Audlehelm Law Office, Des Moines, for appellant
father T.T.
Jessica J. Chandler of Chandler Law Office, West Des Moines, for appellant
father C.M.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Shireen Carter, Norwalk, attorney and guardian ad litem for minor children.
Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
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GREER, Judge.
Both fathers appeal the juvenile court’s termination of their parental rights;
we address each father’s claim separately, but arrive at the same result. The
terminations of these fathers’ parental rights were warranted, and we affirm.
I. Father: C.M.
A.M. was born in August 2020. When the child was two months old, the
mother1 and C.M., the father, were reported to be using methamphetamine while
caring for the child and her half-sibling, J.J. The father has a long history of drug
use, which previously led to the termination of his parental rights to another child.
DHHS2 initiated a safety plan, and A.M. and J.J. were placed with relatives. In
March 2021, after six months with limited participation in recommended treatment
by the father, A.M. was formally removed from the parents’ custody; the child was
adjudicated a child in need of assistance (CINA) that June.
In the early stages of DHHS’s involvement with the family, the father
struggled to consistently engage with either inpatient or outpatient substance-
abuse services. After the child’s adjudication, the father was incarcerated for
possession of marijuana and drug paraphernalia; he remained in jail until February
2022. He maintains he was sober while incarcerated, his longest period of sobriety
during DHHS’s current involvement, but relapsed and used methamphetamine and
marijuana during the short gap between leaving jail and entering inpatient
1The mother is not a party to this appeal.
2In 2022, the Iowa legislature merged the department of human services with the
department of public health into the Iowa Department of Health and Human
Services (DHHS), with the transition starting July 1, 2022. See 2022 Iowa Acts
ch. 1131 § 51.
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substance-abuse treatment. Still, he successfully completed inpatient treatment
in March 2022 and entered a sober living community. After five weeks there,
though, he was asked to leave following a rule violation. The next day, he entered
a new sober living community. He has not tested positive for substances nor
shown behavioral indicators of use since entering these sober living communities.
The father had been at the second sober living facility less than three weeks
at the time of the termination hearing in May. The facility did not offer any
substance-abuse treatment, though it did require residents to participate in
Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings, have an AA
or NA sponsor, keep to a strict curfew, maintain employment, and pay rent. It did
not allow children to stay with their parents in the facility full time, though children
could stay a few nights during the week. At the time of the termination hearing,
the father had six months left in his program and admitted that he could not take
the child back into his full-time care until he finished it.
The father’s rights were terminated pursuant to Iowa Code
section 232.116(1)(h) (2022), which requires a finding, among others, that “the
child cannot be returned to the child’s parents . . . at the present time.” DHHS
reported concerns not just with the father’s drug use but also his inability to
maintain stable employment or stable housing.
On appeal, the father states the juvenile court should have granted him a
six-month extension and that the State failed to prove the statutory grounds for
termination under Iowa Code section 232.116(1)(h).3 But, his statutory grounds
3The father also makes passing reference to the child’s best interests, but does
not develop this argument for our review. See In re S.V., No. 22-0283, 2022 WL
4
argument, really, is the same as a request for a six-month extension. See Iowa
Code § 232.117(5) (allowing a juvenile court, if it does not terminate parental rights,
to enter an order under section 232.104); see also id. § 232.104(2)(b) (allowing the
juvenile court to “enter an order pursuant to section 232.102 to continue placement
of the child for an additional six months”). The father, acknowledging that he could
not take the child at the time of the termination hearing, asserts that the brief delay
in permanency would not harm the child. But a six-month extension is only
available if the juvenile court can “make a determination the need for removal will
no longer exist at the end of the extension.” In re A.A.G., 708 N.W.2d 85, 92 (Iowa
Ct. App. 2005); see also In re L.L., 459 N.W.2d 489, 495 (Iowa 1990) (“Children
simply cannot wait for responsible parenting. Parenting cannot be turned off and
on like a spigot. It must be constant, responsible, and reliable.”).
We are encouraged by the father’s recent progress and statements that he
is dedicated to his sobriety; we hope he is able to continue down this path. Still,
despite substance-abuse services in the past and with this current case, the father
has not been able to demonstrate an ability to remain sober without highly
regulated surroundings. See In re P.F., No. 15-1103, 2015 WL 5970017, at *3
(Iowa Ct. App. Oct. 14, 2015). Given the time remaining in his program, an
additional six months will not alleviate this concern.
1236963, at *2 (Iowa Ct. App. Apr. 27, 2022) (“But the mother only makes a
passing reference to [the child’s best interests]. So her claim is not sufficiently
developed for our review.”).
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Because the father has not demonstrated a six-month extension would have
remedied the concerns preventing reunification, we affirm the termination of his
parental rights.
II. Father: T.T.
T.T. is the father of T.T.II and J.J., born in 2018 and 2019 respectively. In
this section, any references to “the father” refer to T.T. and any references to “the
children” refer to J.J. and T.T.II. For background, C.M. is the mother of J.J. and,
as noted before, her rights were terminated in these proceedings. K.T. is the
mother of T.T.II, but her parental rights are not at issue here.
T.T.II was removed from his mother’s custody in 2019 and adjudicated
CINA; at that time, T.T. was incarcerated. T.T.II was eventually placed in the
father’s custody under DHHS supervision after his mother’s rights were terminated
and the CINA case remained open. The father has never been the caretaker for
J.J., who was also adjudicated CINA after being removed from C.M.’s home in
2020.
In July 2021, the father tested positive for cocaine. DHHS moved to modify
T.T.II’s placement, and the child was removed from the father’s custody. The
father then missed drug tests on August 18, September 9, October 26 and 29,
January 25, and February 14. In December 2021 and April 2022, he tested positive
for marijuana. In his substance abuse assessment, the father did not admit to any
drug use.
At the May 2022 termination hearing, DHHS social workers outlined their
concerns with the father taking over the care of both children. He had not seen
either child since the previous November—visits were suspended at that time
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because the father was not complying with the court’s recommendations for
reunification.4 This included regularly ignoring requests for drug tests, tampering
with drug tests, or testing positive for marijuana. The court ordered the father to
undergo a psychosocial evaluation before visits could resume. Workers testified
the father had become more compliant in the weeks leading up to the termination
hearing and had just recently completed the psychosocial evaluation, though he
had not followed any of its recommendations.
The father’s rights to the children were terminated pursuant to Iowa Code
section 232.116(1)(h) and (e). Section 232.116(1)(h), as discussed above, allows
for termination if, among other things, the child could not be returned to the parent
at the time of the termination hearing. See In re D.W., 791 N.W.2d 703, 707 (Iowa
2010) (using the time of termination hearing as the time in question).
On appeal, the father argues that the children could have been returned to
his custody at the time of the termination hearing. This argument ignores
section 232.116(1)(e). See In re D.H., No. 09-1187, 2009 WL 3051749, at *1 (Iowa
Ct. App. Sept. 17, 2009) (acknowledging that when a parent challenges only one
founded ground for termination, we may affirm termination on the unchallenged
ground); see also In re A.B., 815 N.W.2d 764, 774 (Iowa 2012) (“When the juvenile
court terminates parental rights on more than one statutory ground, we may affirm
the juvenile court’s order on any ground we find supported by the record.”). But,
4 The social worker testified that, even when visits were occurring, the father would
spend whole visits criticizing the service providers rather than focusing on the
children. On one occasion, the father called the police when he arrived at the
supervised visit with T.T.II. The father was argumentative with workers and the
police officers who arrived, so the visit was ended. T.T.II was crying and upset to
the point of getting ill in the car driving away from the visit.
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even if the father’s rights had only been terminated under section 232.116(1)(h),
there was ample evidence the children could not be returned to his custody at the
time of the termination hearing. He failed to comply with recommended services
or address his substance abuse. His recent efforts are a start, but far from the
finish line of reunification. See In re C.B., 611 N.W.2d 489, 495 (Iowa 2000)
(finding compliance with services on “the eve of termination, after the statutory time
periods for reunification have expired” insufficient). As such, the children could not
be returned to his custody at the time of the termination hearing and we affirm the
termination of his parental rights.
AFFIRMED ON BOTH APPEALS.