In the Interest J.H. and J.H., Minor Child

• Court: Court of Appeals of Iowa
• Decided: November 17, 2022
• Docket: 22-1290
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1290 Filed November 17, 2022

IN THE INTEREST OF J.H. and J.H., Minor Children,

J.H., Father, Appellant,

A.T., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Jason A. Burns,

District Associate Judge.

A mother and father appeal the termination of their parental rights.

AFFIRMED.

Sarah Hradek, Iowa City, for appellant father.

Sara Strain Linder of Bray & Klockau, Iowa City, for appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Anthony Haughton of Linn County Advocate, Cedar Rapids, attorney and

guardian ad litem for minor children.

Considered by Bower, C.J., and Greer and Badding, JJ. 2

GREER, Judge.

The juvenile court terminated the parental rights of A.T., the mother, and

J.J.H., the father, to their two children—who both are under the age of three. This

appeal addresses the parents’ objections to that determination.

The father and mother each maintain the State failed to prove the statutory

grounds for termination, specifically that the children could not be returned to their

custody at the time of the termination hearing; that termination of their parental

rights is not in the children’s best interests; and that the juvenile court should have

avoided termination via the permissive exception found in Iowa Code section

232.116(3)(c) (2022). Additionally, the mother argues the juvenile court should

have granted her a six-month extension.

Because the State proved the statutory ground for termination, termination

is in the best interests of the children, no permissive exception was warranted in

this case, and a six-month extension for the mother would have been

inappropriate, we affirm.

I. Facts and Prior Proceedings.

On July 11, 2021, the mother tested positive for marijuana,

methamphetamine, and amphetamine just before giving birth to the younger child;

the mother admitted to using methamphetamine that day. The Iowa Department

of Health and Human Services (DHHS)1 was alerted. While in the hospital, the

child’s umbilical cord also tested positive for methamphetamine and

1In 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, with the transition starting July 1, 2022. See 2022 Iowa Acts ch. 1131 § 51. 3

amphetamines. In the days following, the father tested positive for

methamphetamine and marijuana. About two weeks later, the mother left the

shelter where the family was staying to go see a friend, leaving the older child, who

was ten-months old, crying and alone in the family’s room. Now, with combined

concerns about supervision and drug use, the State filed for temporary removal on

July 26, which the juvenile court granted. The children were placed in foster care

and adjudicated children in need of assistance (CINA).

On a positive note, the parents began participating in Family Treatment

Court in the fall of 2021. The mother completed a substance-abuse evaluation

and was recommended to complete inpatient treatment, which she began in

December 2021. But the steps forward stalled when she was discharged within

the month after a series of behavioral violations. The father was also evaluated

and began attending intensive outpatient treatment in February 2022, but he too

stalled progress when he was discharged in April for non-attendance. In March,

after continuing to deny drug use despite positive tests and allegations, it was

learned that the mother was trying to sell mushrooms to others in treatment.2 With

no progress on the substance-abuse concerns, the parents were discharged from

Family Treatment Court.

Both parents received a second evaluation, the mother in March and the

father in May, but they did not provide the results to their DHHS caseworker.

2 In February, the individual administering the parents’ drug tests reported the mother had asked if mushrooms would show up on the screening. A few weeks later, workers at the substance-abuse-treatment center the mother attended received word from one of their participants that the mother attempted to sell them mushrooms. 4

Instead, the caseworker saw the evaluations for the first time when the parents

each submitted them as evidence at the termination hearing. The evaluations

each recommended relapse preventions groups; the mother asserted she was

attending as needed and the father said he was signed up to begin as well.3 Both

parents said they were attending weekly virtual Alcoholics Anonymous meetings

together. Still, DHHS’s last report to the court ahead of the June 16 termination

hearing stated that, of the tests the mother appeared for, she had fourteen positive

drug tests and three negative tests; on the father’s part, he had eleven positive

and five negative tests. Both parents had also missed some drug tests and had

multiple tests that appeared to have been tampered. At that time, the most recent

drug test—June 8—was positive for both parents and showed signs of tampering.

At trial, both parents questioned the validity of the tests. The mother stated her

last use of methamphetamine and marijuana was in November; she claimed she

had not used any substances after finding out she was now again pregnant. The

father also stated his last methamphetamine use was in November and he last

used marijuana in January. The children’s maternal grandmother and the mother’s

employer—who each regularly see the parents—both testified they had not noticed

behavioral indicators of use by the parents.

To her credit, the mother completed a mental-health evaluation, which

recommended individual therapy. At the time of the termination hearing, she was

attending therapy once a month. The father was also supposed to receive an

3 The DHHS caseworker had not received verification that the parents were attending. 5

evaluation, but the caseworker had no indication the father had complied at the

time of the termination hearing.

Early in the case, the parents struggled to attend visits with the children.

Even as their attendance became more regular, there were issues with the parents

coming unprepared or allowing other adults, not approved by DHHS, to be present.

The parents did successfully complete the Nurturing Parent Program and visits

typically went well—the parents were attentive to the children and the children

were not fearful of them. But the continued positive drug tests caused visitation to

remain fully supervised.

The parents have not been able to maintain stable housing during the case.

After they left the homeless shelter, they fluctuated between staying with friends

and family or short-term rentals. Often, DHHS had no information about where the

parents were living. At the time of the termination hearing, the parents reported

they intended to move in with the children’s paternal grandmother because of a

tumultuous relationship with their landlord while applying for another apartment.

The juvenile court referenced a “common theme” from the parents—they have

many plans but often fail to follow through with the stated intentions. Yet, at the

termination trial, the parents had employment, meeting one of the goals

established by DHHS.

The State filed for termination of parental rights in January 2022, citing

concerns about the parents’ housing stability and continued substance abuse.

After a hearing, both parents’ parental rights were terminated under Iowa Code

section 232.116(1)(h). 6

II. Analysis.

We review termination of parental rights de novo. In re P.L., 778 N.W.2d

33, 40 (Iowa 2010). Each parent separately appeals the termination of their

parental rights. Both parents argue the State failed to prove the ground for

termination, termination is not in the children’s best interests, and the court should

have used the permissive exception found in Iowa Code section 232.116(3)(c) to

avoid termination; the mother additionally asserts the court should have granted

her a six-month extension. We address each in turn.

A. Statutory Grounds for Termination.

Each parent argues the State did not prove, “[t]here 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,” a necessary element to terminate

their parental rights under section 232.116(1)(h).4 See In re D.W., 791 N.W.2d

703, 707 (Iowa 2014) (using the termination hearing as the benchmark time for

section 232.116(1)(h)).

The father argues the juvenile court erred in relying on Iowa Code section

232.102(5) when finding the children could not be safely returned to his care. The

father is correct that this code section was deleted as of July 1, 2022. See 2022

4Section 232.116(1)(h) also requires the court to find: (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. Neither parent contests these other elements. 7

Iowa Acts ch. 1198 § 47. Setting aside the fact this petition for termination was

filed before the change in law, section 232.102(5) dealt with allowing children to

participate in extracurricular activities while in foster care—we believe this was a

scrivener’s error on the part of the juvenile court. We assume the juvenile court

meant to reference section 232.102(4)(a)(2), which dictates:

Custody of the child[ren] should not be transferred unless the court finds there is clear and convincing evidence that: (1) The child[ren] cannot be protected from physical abuse without transfer of custody; or (2) The child[ren] cannot be protected from some harm which would justify the adjudication of the child[ren] as a [CINA] and an adequate placement is available.

The father also argues he has been addressing his substance abuse and

has maintained sobriety by the time of the termination hearing despite his positive

drug tests. Further, he argued the children could live with him and the mother at

the paternal grandmother’s home. The mother similarly argues her substance

abuse does not prevent the children from being safely returned to her because she

is participating in the recommended treatment. Both parents point to their

concerns about the validity of the drug testing and the testimony of witnesses who

said the parents were not displaying behavioral indicators of use.

Like the juvenile court, we do not find the parents’ denials of active and

continuing methamphetamine use to be credible in the face of their consistent

positive drug tests. Each parent regularly tested positive for methamphetamine as

late as the weeks leading up to the termination hearing, which itself would prevent

the children from being returned to their parents’ care. See In re A.B., 815 N.W.2d

764, 776 (Iowa 2012) (“We have long recognized that an unresolved, severe, and

chronic drug addiction can render a parent unfit to raise children.”); In re P.D., 8

No. 19-1824, 2019 WL 6894420, at *1 (Iowa Ct. App. Dec. 18, 2019) (“Given the

mother’s continued use of methamphetamine, the child would be at risk of

adjudicatory harm.”). Neither parent presented any evidence the tests provided

were faulty or were repeatedly generating false positives; we, like the juvenile

court, do not find their concerns credible. And even if we take the parents’ word

for it that they are actively engaging in treatment to combat their drug use, they

have not met success in the battle of achieving and maintaining sobriety. See

A.B., 815 N.W.2d at 776 (“[B]ecause of [the parent’s denial of drug use, the

parent’s] drug problem was unresolved, and thus, he was ‘not in a position to

provide the safe and stable home [the children] need and deserve.’”).

On top of the substance abuse, though the parents found a place to land

for the moment, they have not shown an ability to maintain safe, stable housing for

these children. See In re J.A., No. 21-0157, 2021 WL 1399770, at *2 (Iowa Ct.

App. Apr. 14, 2021) (“We acknowledge well-established case law that a parent’s

impoverished condition should not be the sole basis of a termination decision. That

said, a parent must be able to provide children with the basic necessities of life,

including a roof over their heads and food on the table.” (internal citations omitted)).

We applaud the progress the parents have made in completing parenting

programing and finding employment, as well as the mother’s efforts to address her

mental-health concerns. Still, because the parents have not yet tackled their

substance abuse and housing instability, we find clear and convincing evidence on

our de novo review that the children could not be returned to their care at the time

of the termination hearing. 9

B. Best Interests.

The parents each argue termination is not in their children’s best interest.

In determining the children’s best interests, we “give primary consideration to the

child[ren]’s safety, to the best placement for furthering the long-term nurturing and

growth of the child[ren], and to the physical, mental, and emotional condition and

needs of the child[ren].” Iowa Code § 232.116(2). The “defining elements in a

child’s best interest[s]” are their safety and need for permanency. See In re A.M.,

843 N.W.2d 100, 113 (Iowa 2014) (citation omitted).

Both parents argue that the strength of the bond between them and their

children is strong, meaning termination is not in the children’s best interests. They

also argue there was no evidence the children have integrated into their foster

family. See Iowa Code § 232.116(2)(b). The parents mischaracterize the

relationship between the foster parents and the children. While the relationship

was not widely discussed at trial and the foster parents have been supportive of

reunification, the DHHS caseworker testified the children were bonded with the

foster parents and are having their needs met. And, the most recent review of the

home stated the foster parents would adopt. The children have lived in their

current foster home since October 2021, and the DHHS caseworker testified at the

termination hearing that the children have bonded with their foster parents.

Moreover, the children’s integration into their foster family is only one of the

considerations when determining if termination is in their best interests. And the

parents continue to dodge the steps necessary to provide for the children’s “long-

term nurturing,” “growth,” or their “physical, mental, and emotional condition and

needs.” See Iowa Code § 232.116(2); see also In re C.S., No. 16-1593, 2017 WL 10

362008, at *2 (Iowa Ct. App. Jan. 25, 2017) (noting unresolved substance abuse,

even after receiving treatment, prevents a parent from providing safe conditions

for their children). The parents have not meaningfully changed the dangerous

behavior that led to the children’s initial removal. See In re C.B., 611 N.W.2d 489,

495 (Iowa 2000) (“Insight for the determination of the child’s long-range best

interests can be gleaned from ‘evidence of the parent’s past performance for that

performance may be indicative of the quality of the future care that parent is

capable of providing.’” (citation omitted)). Termination will put the children another

step closer to the permanency their parents have not yet provided for them. See

In re C.K., 558 N.W.2d 170, 175 (Iowa 1997) (“It is simply not in the best interests

of children to continue to keep them in temporary foster homes while the natural

parents get their lives together.”).

In this case, it is clear the parents care for their children. Still, the younger

child has never been in the parents’ care and the older one was removed at only

ten months old; even if a strong bond exists, it does not outweigh our other

considerations.

C. Permissive Exceptions.

Both parents argue the juvenile court should have exercised the

section 232.116(3)(c) exception, which allows the court to forgo termination upon

finding “[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.” Iowa Code § 232.116(3)(c). The exception is permissive rather than

mandatory, In re W.T., 967 N.W.2d 315, 324 (Iowa 2021), and after the State

proves the grounds for termination, “the parent resisting termination bears the 11

burden to establish an exception to termination.” See In re A.S., 906 N.W.2d 467,

476 (Iowa 2018). “[O]ur consideration must center on whether the child will be

disadvantaged by termination, and whether the disadvantage overcomes [the

parent’s] inability to provide for [the child’s] developing needs.” D.W., 791 N.W.2d

at 709.

Though the parents argue they have a close bond with their children

because the children get upset at the end of their visits, neither parent has shown

this bond was strong enough to overcome the need for termination founded in the

parents’ inability to maintain sobriety or stable housing. On our de novo review,

the application of the section 232.116(3)(c) permissive exception is not warranted.

D. Six-Month Extension.

The final argument, raised only by the mother, is that the juvenile court

should have granted her a six-month extension to work toward reunification. See

Iowa Code § 232.104(2)(b). This option requires the parent seeking the extension

show the “impediments to placing [the child] with [the parent would] not exist in six

months.” W.T., 967 N.W.2d at 323. The juvenile court would then have to enter

an order “enumerat[ing] the specific factors, conditions, or expected behavioral

changes which comprise the basis for the determination that the need for removal

of the child from the child’s home will no longer exist at the end of the additional

six-month period.” Iowa Code § 232.104(2)(b). This balance takes into account

the time for reunification already built into the code. See C.B., 611 N.W.2d at 494

(“While we recognize the law requires a ‘full measure of patience with troubled

parents who attempt to remedy a lack of parenting skills,’ Iowa has built this

patience into the statutory scheme of Iowa Code chapter 232.” (citation omitted)); 12

P.L., 778 N.W.2d at 39 (“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.”).

The mother argues six additional months would give her time to

demonstrate her sobriety and figure out her housing situation. She points

specifically to a recent case by a panel of this court, In re G.B., No. 22-0439, 2022

WL 1657190, at *5 (Iowa Ct. App. May 25, 2022), where a positive drug test was

“the only fly in the ointment” preventing a six-month extension. But, G.B. involved

a parent who had a positive test nine months before termination and then only

negative tests afterwards. 2022 WL 1657190, at *5–6. That demonstrated

sobriety is a far cry from the case at hand. This record does not establish that six

more months would allow the mother to safely regain custody of her children,

especially when she has made no meaningful progress toward sobriety or stable

housing in the nearly a year this case was pending. See C.B., 611 N.W.2d at 495

(“Time is a critical element. A parent cannot wait until the eve of termination, after

the statutory time periods for reunification have expired, to begin to express an

interest in parenting.”); In re K.G., No. 18-1187, 2019 WL 7190047, at *2 (Iowa Ct.

App. Feb. 20, 2019) (“The burden is not on the State to prove an extension is not

appropriate as the mother asserts. Rather, the court needs evidence to support a

finding the mother would be able to care for the children within six months in order

to grant an extension.”). Without any indication in the record that six months would

be enough time for the mother to take care of the impediments to reunification, a

six-month extension is inappropriate. 13

III. Conclusion.

On our de novo review of the termination of the mother’s and father’s

parental rights to these two children, we find the State established the ground for

termination, the children’s best interests are served by termination, the requested

permissive exception to termination does not apply, and an additional six-months

for the mother to work toward reunification is not warranted. We affirm the juvenile

court.