In the Interest of O.W., Minor Child ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0923
Filed September 23, 2020
IN THE INTEREST OF O.W.,
Minor Child,
K.W., Father,
Appellant.
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Appeal from the Iowa District Court for Woodbury County, Mary L. Timko,
Associate Juvenile Judge.
A father appeals the termination of his parental rights to his child.
AFFIRMED.
Douglas L. Roehrich, Sioux City, for appellant father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Meret Thali of Juvenile Law Center, Sioux City, attorney and guardian ad
litem for minor child.
Considered by Doyle, P.J., and Mullins and Greer, JJ.
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DOYLE, Presiding Judge.
A father appeals the order terminating his parental rights to his child. He
contends the State failed to prove the grounds for termination by clear and
convincing evidence. He also contends termination is contrary to the child’s best
interests. We review his claims do novo. See In re A.S., 906 N.W.2d 467, 472
(Iowa 2018).
The child came to the attention of the Iowa Department of Human Services
(DHS) in March 2019 due to concerns about the parents’ drug use while
supervising the child and violence in the home. The father admitted to being an
alcoholic and chronic marijuana user who was in need of inpatient treatment. But
for three months, the father failed to respond to attempts by the DHS to contact
him. During that time, he was arrested for and pled guilty to possession of
methamphetamine with intent to deliver. The State petitioned to adjudicate the
child to be a child in need of assistance (CINA), which the juvenile court granted.
After contacting the DHS, the father obtained a substance-abuse evaluation
and began extended outpatient treatment in August 2019. Although the father
tested negative for drug use in September and October, he tested positive for
methamphetamine use on December 1 and was “very reluctant to share any
information” about his relapse.
After a December 16 review hearing, the juvenile court determined it was in
the child’s best interests to initiate termination proceedings, and the State
petitioned to terminate the father’s parental rights under Iowa Code section
232.116(1)(h), (i), and (l) (2020). The father seldom attended his outpatient-
treatment sessions and continued using methamphetamine and marijuana. He
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began a one-month inpatient treatment program in April and started outpatient
treatment following discharge. The father claimed he last used drugs one or two
weeks before beginning inpatient treatment, but he had not been tested for drug
use after his discharge.
The juvenile court found the State established each ground for termination
under section 232.116(1)(h),(i), and (l) by clear and convincing evidence and
terminated the father’s parental rights. We may affirm the termination order if the
record supports termination on one of those grounds. See In re A.B., 815 N.W.2d
764, 774 (Iowa 2012). The father challenges termination under section
232.116(1)(h), arguing there is insufficient evidence to show the child would be
exposed to adjudicatory harm if returned to his care at the time of the termination
hearing. See Iowa Code § 232.116(1)(h)(4) (requiring “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”); In re D.W., 791 N.W.2d 703, 707
(Iowa 2010) (interpreting the term “at the present time” to mean to mean “at the
time of the termination hearing”); In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App.
2016) (noting a child cannot be returned to the custody of the parent if doing so
would expose the child to any harm amounting to a new CINA adjudication).
Clear and convincing evidence shows the child would be at risk of further
adjudicatory harm if returned to the father at the time of the termination hearing.
Before the CINA adjudication, the father supervised the child while under the
influence of methamphetamine. He was able to remain sober for two months
during his first bout of treatment, but his attendance became sporadic and he
relapsed. At the time of the termination hearing, the father was again at the two-
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month mark in the recovery process. Considering the father’s history, the
prognosis for his recovery is guarded at best. See A.B., 815 N.W.2d at 778 (noting
that a parent’s past performance “may be indicative of the quality of the future care
that parent is capable of providing” (citation omitted)). The State proved the
grounds for terminating the father’s parental rights under Iowa Code section
232.116(1)(h).
The father next disputes that termination is in the child’s best interests. See
Iowa Code § 232.116(2); D.W., 791 N.W.2d at 706-07 (requiring that the court
“apply the best-interest framework set out in section 232.116(2) to decide if the
grounds for termination should result in a termination of parental rights”). In
determining best interests, our 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.” In re P.L.,
778 N.W.2d 33, 37 (Iowa 2010) (quoting Iowa Code § 232.116(2)). The “defining
elements” we consider in making this determination are the child’s safety and
“need for a permanent home.” In re H.S., 805 N.W.2d 737, 748 (Iowa 2011)
(citation omitted). As stated above, the father’s unresolved substance-use issues
prevent the father from providing the child with a safe and stable home.
Termination is in the child’s best interests.
The father also asserts it is not in the child’s best interests to terminate his
parental rights due to the strong bond he has with the child. He also claims
termination is unnecessary because the child is in the custody of the maternal
grandparents. The court “need not terminate the relationship between the parent
and child” if “[a] relative has legal custody of the child” or if “[t]here is clear and
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convincing evidence that the termination would be detrimental to the child at the
time due to the closeness of the parent-child relationship.” Iowa Code
§ 232.116(3)(a), (c). But the juvenile court’s decision regarding whether to apply
the provisions of section 232.116(3) to avoid termination is permissive, not
mandatory. See A.S., 906 N.W.2d at 475. That decision depends on the facts of
each case and the child’s best interests. See id.
Even assuming the grounds set forth in section 232.116(3)(a) and (c) exist,
we are not convinced that they warrant preservation of the parent-child
relationship. Children are not equipped with pause buttons, and delaying
permanency in favor of a parent is contrary to the child’s best interests. See In re
A.M., 843 N.W.2d 100, 112 (Iowa 2014) (noting children must not be deprived
permanency on the hope that someday the parent will be able to provide a stable
home); In re A.C., 415 N.W.2d 609, 614 (Iowa 1987). Once the grounds for
termination have been proved, time is of the essence. See A.C., 415 N.W.2d at
614 (“It is unnecessary to take from the children’s future any more than is
demanded by statute. Stated otherwise, plans which extend the twelve-month
period during which parents attempt to become adequate in parenting skills should
be viewed with a sense of urgency.”); see also In re R.J., 436 N.W.2d 630, 636
(Iowa 1989) (noting that once the time period for reunification set by the legislature
has expired, “patience on behalf of the parent can quickly translate into intolerable
hardship for the children”). The statutory grounds for termination afforded the
father six months. See Iowa Code § 232.116(1)(h)(3). The father’s progress was
only minimal in twice that time. O.W.’s placement with paternal grandparents does
not diminish the urgency of the child’s need for permanency. Because the child
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requires the permanency that termination affords, we affirm the termination of the
father’s parental rights.
AFFIRMED.