In the Interest of A.H. and J.H., Minor Children ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-2024
Filed March 4, 2020
IN THE INTEREST OF A.H. and J.H.,
Minor Children,
J.H., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Mills County, Scott Strait, District
Associate Judge.
A father appeals the juvenile court order terminating his parental rights.
AFFIRMED.
J. Joseph Narmi, Council Bluffs, for appellant father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Katherine Murphy of Kate Murphy Law, PLC, Glenwood, attorney and
guardian ad litem for minor children.
Considered by Bower, C.J., Ahlers, J., and Danilson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
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DANILSON, Senior Judge.
A father appeals the juvenile court order terminating his parental rights. We
conclude the juvenile court did not abuse its discretion in denying the father’s
motion to reopen the record. There is clear and convincing evidence to support
termination under Iowa Code section 232.116(1)(h) (2019). It would not be in the
children’s best interests to further delay this case. Additionally, none of the factors
in section 232.116(3) should be applied to prevent termination. We affirm the
decision of the juvenile court.
I. Background Facts & Proceedings
Ja.H., father, and K.G., mother, are the parents of Je.H., born in 2017, and
A.H., born in 2018. The older child, Je.H., was removed from the parents’ care on
December 7, 2017, because they were using methamphetamine. There were also
concerns about domestic violence in the parents’ relationship. The child was
placed in the care of the maternal great-grandparents. Je.H. was adjudicated to
be a child in need of assistance pursuant to Iowa Code section 232.2(6)(c)(2) and
(n) (2017).
The parents participated in Family Safety, Risk, and Permanency services.
The father had a substance-abuse evaluation in January 2018 and a
recommendation was made for extended outpatient services. In March, the
father’s drug patch was positive for methamphetamine. A search was conducted
of the father’s home on March 13, which resulted in charges on two counts of
possession of a controlled substance and two counts of possession of drug
paraphernalia. Officers also found a fraudulent urine system. The father started
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a substance-abuse treatment program in May but left after a few days. He began
a new treatment program in July, which he successfully completed.
When the second child, A.H., was born, he was immediately removed from
the parents’ care. There were concerns the father was intoxicated at the hospital
when the child was born, as he was disruptive and caused a scene. The second
child was also placed with the maternal great-grandparents, where the older child
was living. A.H. was adjudicated to be in need of assistance under section
232.2(6)(b), (c)(2), and (n) (2018).
During a visit in January 2019, a social worker became concerned because
the father seemed to be under the influence of alcohol. The father was often a “no
show” for random drug tests. The father had a drug test in June that was positive
for methamphetamine. In addition, in July he tested positive for alcohol, having a
blood alcohol level of .228. Social workers recommended the father have a new
substance-abuse evaluation, but he refused. The father began attending an Iowa
Domestic Abuse Program in August.
On August 5, 2019, the State filed a petition seeking termination of the
parents’ rights. At the termination hearing, held on October 2, the father stated he
had decided to stop using illegal drugs “about a month ago.” The juvenile court
terminated the father’s parental rights under section 232.116(1)(e) and (h) (2019).
The court found termination of the father’s parental rights was in the children’s best
interests. The court noted the father continued to struggle with substance abuse.
The father now appeals the juvenile court order terminating his parental rights. 1
1The mother also appealed the termination of her parental rights, but her petition
on appeal appeal was determined to be untimely and her appeal was dismissed.
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II. Standard of Review
Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d
764, 773 (Iowa 2012). “‘Clear and convincing evidence’ means there are no
serious or substantial doubts as to the correctness [of] conclusions of law drawn
from the evidence.” In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). Our primary
concern is the best interests of the child. In re J.S., 846 N.W.2d 36, 40 (Iowa
2014).
III. Motion to Reopen the Record
During the termination hearing, held on October 2, 2019, the father testified
he was two classes short of finishing his domestic abuse education program. He
had attended twenty-two out of twenty-four classes. The termination order was
filed on November 22, and the court noted the father had not completed domestic
violence education.
On December 4, the father filed a motion to reopen the record. He sought
to present evidence he completed the domestic abuse program on October 10.
The father asked the court to reconsider the termination of his parental rights in
light of this evidence. The juvenile court denied the motion to reopen the record.
The father claims the court abused its discretion by denying his motion to
reopen the record. “We review the denial of motions to reopen the record for an
abuse of discretion. In order to show an abuse of discretion, a party must show
the juvenile court’s action was unreasonable under the attendant circumstances.”
In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). “When a juvenile court diligently
enters a termination order after a hearing, there is generally no basis to complain
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about a discretionary refusal of the juvenile court to reopen the record, particularly
when the evidence was available to the parties at the time of the hearing.” Id.In L.T., the Iowa Supreme Court found the juvenile court abused its
discretion by refusing to reopen the record when there was an inordinately long
time between the termination hearing and the termination order, about twenty
months. 924 N.W.2d at 525. In that circumstance, the court found “the mother’s
situation may well have materially changed.” Id. at 526. Additionally, in L.T., the
mother sought to reopen the record before a final order was entered. 924 N.W.2d
at 527.
In the present action, there was not a lengthy delay between the termination
hearing and the filing of the termination order. The father testified he had nearly
completed the domestic abuse education program. We find the information that
he wanted to present by reopening the record was within the contemplation of the
court from the evidence presented at the hearing. Also, the father waited until after
the court entered the termination order before requesting to reopen the record,
although he completed the program shortly after the termination hearing. We
acknowledge the termination order would have been more accurate to recite that
the father had nearly completed domestic abuse education classes. Nonetheless,
for the reasons noted, we conclude the juvenile court did not abuse its discretion
in denying the father’s motion to reopen the record.
IV. Sufficiency of the Evidence
The father claims there is not sufficient evidence in the record to support
termination of his parental rights under section 232.116(1)(e) or (h). “When the
juvenile court terminates parental rights on more than one statutory ground, we
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may affirm the juvenile court’s order on any ground we find supported by the
record.” A.B., 815 N.W.2d at 774. We will consider the termination of the father’s
rights under section 232.116(1)(h).
The juvenile court may terminate a parent’s rights under section
232.116(1)(h) under the following circumstances:
(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 disputes only the fourth element, claiming the children could be
safely returned to his care. We consider whether the children could be returned to
the parent’s care at the time of the termination hearing. See In re M.W., 876
N.W.2d 212, 224 (Iowa 2016). The father claims he has not used drugs since
May 15, 2018. The father had a positive drug test in June 2019, after he completed
a substance-abuse treatment program. He was a “no show” for several random
drug tests. Additionally, there were concerns about the father’s use of alcohol. At
the termination hearing, the father stated he had decided to stop using illegal drugs
“about a month ago.” The father refused recommendations to have a new
substance-abuse evaluation or to attend further treatment.
We agree with the juvenile court’s conclusion that the father failed to
appropriately address his substance-abuse issues. His statement that he decided
to give up illegal drugs a month before the termination speaks to his failure to make
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efforts to change and affirmatively assume the duties of a parent. The father also
never progressed to an overnight visit or unsupervised visits over the lengthy
period this case was pending. We conclude the children could not be safely
returned to the father’s care. There is clear and convincing evidence to support
termination of the father’s parental rights under section 232.116(1)(h).
V. Best Interests
The father claims termination of his parental rights is not in the children’s
best interests. He states he has a very strong bond with the children and is a very
good father. He points out the maternal great-grandparents are elderly and claims
this raises concerns about long-term stability in that placement. The father states
he has contact with his four older children from a previous relationship. We
acknowledge he has stable housing and employment but we have other concerns.
“When we consider whether parental rights should be terminated, we ‘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. (quoting Iowa Code § 232.116(2)).
“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.” In re P.L., 778 N.W.2d 33, 41 (Iowa 2010).
At the termination hearing, the father testified his four older children were in
a guardianship with his parents. These children do not live with the father, although
he has contact with them. The maternal great-grandfather testified he was
seventy-seven years old and was in “pretty fair” health. He stated he could adopt
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the children. The maternal great-grandfather testified he did not believe the father
had a bond with the children at issue. However, he also stated the father was “a
pretty good dad.”
We determine that termination of the father’s parental rights is in the
children’s best interests. The juvenile court noted the father had not prioritized the
children over his use of illegal substances throughout the case. Although the father
had relapsed into drug use at least once after he completed a substance-abuse
treatment program and had engaged in problematic alcohol use, he refused to
engage in an evaluation or treatment for substance abuse. It would not be in the
children’s best interests to further delay this case. See id. The children need
permanency and stability, which the father is not able to provide. Most importantly,
the children need safety, and the evidence does not support that he can provide a
safe and nurturing environment for the children.
VI. Exceptions
Under section 232.116(3), “[t]he court need not terminate the relationship
between the parent and child” under certain circumstances. Iowa Code
§ 232.116(3). A finding under subsection 3 allows the court not to terminate. In
re A.M., 843 N.W.2d 100, 113 (Iowa 2014). “The factors weighing against
termination in section 232.116(3) are permissive, not mandatory,” and the court
may use its 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.” Id. (quoting In re D.S., 806 N.W.2d 458, 474–75 (Iowa
Ct. App. 2011)).
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The father claims the juvenile court should have decided not to terminate
his parental rights based on the factors in section 232.116(3). He notes the
children are living with relatives, the maternal great-grandparents. He also claims
to have a close bond with the children. The court may decide to not terminate a
parent’s rights if “[a] relative has legal custody of the child,” Iowa Code
§ 232.116(3)(a), or “[t]here 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.” Id. § 232.116(3)(c).
As already noted, the maternal great-grandfather testified the father did not
have a close bond with the children. Furthermore, although the children are living
with the maternal great-grandparents, we find it would not be in the children’s best
interests to apply the factors in section 232.116(3) to save the parent-child
relationship under the circumstances in this case. The evidence shows the father
has not been able to overcome his problems with substance abuse in order to
provide a safe and secure home for the children.
We affirm the juvenile court’s decision to terminate the father’s parental
rights.
AFFIRMED.