IN THE COURT OF APPEALS OF IOWA
No. 16-1338 Filed October 12, 2016
IN THE INTEREST OF D.G. AND D.G., Minor children,
R.G., Father, Appellant,
W.H., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,
District Associate Judge.
Mother and father appeal from the order terminating their respective
parental rights in their children pursuant to Iowa Code chapter 232 (2015).
AFFIRMED ON BOTH APPEALS.
Eric W. Manning of Manning Law Office, P.L.L.C., Urbandale, for appellant
father.
Aaron H. Ginkens of Ginkens Law Firm, P.L.C., West Des Moines, for
appellant mother.
Thomas J. Miller, Attorney General, and Janet L. Hoffman, Assistant
Attorney General, for appellee State.
Charles S. Fuson of Youth Law Center, Des Moines, guardian ad litem for
minor children.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ. 2
MCDONALD, Judge.
A mother and father appeal from the order terminating their respective
parental rights in their children, D.G. and D.G. The district court terminated the
mother’s parental rights pursuant to Iowa Code section 232.116(1)(g) and (h)
(2015) and the father’s parental rights pursuant to section 232.116(1)(h). The
standard of review and controlling framework are well-established and need not
be repeated herein. See, e.g., In re M.W., 876 N.W.2d 212, 219–20 (Iowa 2016)
(stating review is de novo and setting forth the applicable “three-step analysis”);
In re A.M., 843 N.W.2d 100, 110–11 (Iowa 2014) (same).
We turn our attention to the statutory ground authorizing termination of the
parent’s respective rights, specifically section 232.116(1)(h). See 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.”). As relevant here, the State
was required to prove the children could not be returned to the parent's custody
“at the present time.” Iowa Code § 232.116(1)(h)(4). “At the present time”
means at the time of the termination hearing. See A.M., 843 N.W.2d at 111.
Children cannot be returned to the parent’s care if the children would remain in
need of assistance or would be at risk of adjudicatory harm. See In re R.R.K.,
544 N.W.2d 274, 277 (Iowa Ct. App. 1995), overruled on other grounds by In re
P.L., 778 N.W.2d 33, 39 (Iowa 2010).
On de novo review, we conclude clear and convincing evidence supports
termination of the parent’s respective rights pursuant to section 232.116(1)(h).
This family has a long history of involvement with the Iowa Department of Human 3
Services (“IDHS”). The mother has had her rights in four other children
terminated in two separate cases due to her inability to care for them because of
her cocaine and methamphetamine abuse. In this case, the family came to the
attention of IDHS in December 2015 when the younger child tested positive for
amphetamines and methamphetamine at birth. The parents consented to the
removal of the children, who were placed with their maternal grandmother and
then with their paternal aunt. At the time of the termination hearing, both parents
continued to have unaddressed substance abuse problems, as evidenced by
repeated positive drug test results for methamphetamine and the father
appearing for court under the influence of alcohol. The prospect of either parent
achieving sobriety is close to zero: The parents have a long history of substance
abuse; the mother completed treatment but continued to use; and the father
denies use despite test results establishing the fact of use. The prospect of
either parent being able to care for the children is also close to zero. The parents
did not participate in parenting services offered to address their respective
deficiencies in caregiving. The record establishes the parents were unable to
exercise appropriate supervision of and care for the children at the time of the
termination hearing.
The father contends the juvenile court should have granted him an
additional six months’ time to work toward reunification. The plain language of
section 232.104(2)(b) provides that additional time shall not be granted unless
the juvenile court specifically finds the basis for the need for removal of the child
will no longer exist at the end of the six-month period. See Iowa Code §
232.104(2)(b). We conclude the juvenile court did not err in denying the request. 4
As stated above, there is little prospect of the father addressing the issues giving
rise to removal. The father has criminal drug history. He denied any use or even
knowledge of what methamphetamine was despite repeatedly testing positive for
the same. Rather than addressing his substance abuse, the father blames lab
contamination, among other things, for the positive test results. What's past is
prologue. See In re J.E., 723 N.W.2d 793, 798 (Iowa 2006) (“When making this
decision, we look to the parent’s past performance because it may indicate the
quality of care the parent is capable of providing in the future.” (internal
quotations omitted)); In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998)
(“When the issue is a parent’s drug addiction, we must consider the treatment
history of the parent to gauge the likelihood that the parent will be in a position to
parent the child in the foreseeable future.”); id. (“Where the parent has been
unable to rise above the addiction and experience sustained sobriety in a
noncustodial setting, and establish the essential support system to maintain
sobriety, there is little hope of success in parenting.”); In re R.D., No. 14–0252,
2014 WL 1714959, at *2–3 (Iowa Ct. App. Apr. 30, 2014) (affirming termination of
parental rights where mother sought more time pursuant to section 232.104(2)(b)
but continued use during proceedings).
The father also contends the closeness of his relationship with the children
should serve to preclude termination. Section 232.116(3)(c) provides the court
may avoid termination if “[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.” The factor is permissive, and the court may use its
discretion in deciding whether to apply the factor to continue the parent-child 5
relationship. See A.M., 843 N.W.2d at 113. Our consideration is not merely
whether there is a parent-child bond, “our consideration must center on whether
the child would be disadvantaged by termination, and whether the disadvantage
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IN THE COURT OF APPEALS OF IOWA
No. 16-1338 Filed October 12, 2016
IN THE INTEREST OF D.G. AND D.G., Minor children,
R.G., Father, Appellant,
W.H., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,
District Associate Judge.
Mother and father appeal from the order terminating their respective
parental rights in their children pursuant to Iowa Code chapter 232 (2015).
AFFIRMED ON BOTH APPEALS.
Eric W. Manning of Manning Law Office, P.L.L.C., Urbandale, for appellant
father.
Aaron H. Ginkens of Ginkens Law Firm, P.L.C., West Des Moines, for
appellant mother.
Thomas J. Miller, Attorney General, and Janet L. Hoffman, Assistant
Attorney General, for appellee State.
Charles S. Fuson of Youth Law Center, Des Moines, guardian ad litem for
minor children.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ. 2
MCDONALD, Judge.
A mother and father appeal from the order terminating their respective
parental rights in their children, D.G. and D.G. The district court terminated the
mother’s parental rights pursuant to Iowa Code section 232.116(1)(g) and (h)
(2015) and the father’s parental rights pursuant to section 232.116(1)(h). The
standard of review and controlling framework are well-established and need not
be repeated herein. See, e.g., In re M.W., 876 N.W.2d 212, 219–20 (Iowa 2016)
(stating review is de novo and setting forth the applicable “three-step analysis”);
In re A.M., 843 N.W.2d 100, 110–11 (Iowa 2014) (same).
We turn our attention to the statutory ground authorizing termination of the
parent’s respective rights, specifically section 232.116(1)(h). See 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.”). As relevant here, the State
was required to prove the children could not be returned to the parent's custody
“at the present time.” Iowa Code § 232.116(1)(h)(4). “At the present time”
means at the time of the termination hearing. See A.M., 843 N.W.2d at 111.
Children cannot be returned to the parent’s care if the children would remain in
need of assistance or would be at risk of adjudicatory harm. See In re R.R.K.,
544 N.W.2d 274, 277 (Iowa Ct. App. 1995), overruled on other grounds by In re
P.L., 778 N.W.2d 33, 39 (Iowa 2010).
On de novo review, we conclude clear and convincing evidence supports
termination of the parent’s respective rights pursuant to section 232.116(1)(h).
This family has a long history of involvement with the Iowa Department of Human 3
Services (“IDHS”). The mother has had her rights in four other children
terminated in two separate cases due to her inability to care for them because of
her cocaine and methamphetamine abuse. In this case, the family came to the
attention of IDHS in December 2015 when the younger child tested positive for
amphetamines and methamphetamine at birth. The parents consented to the
removal of the children, who were placed with their maternal grandmother and
then with their paternal aunt. At the time of the termination hearing, both parents
continued to have unaddressed substance abuse problems, as evidenced by
repeated positive drug test results for methamphetamine and the father
appearing for court under the influence of alcohol. The prospect of either parent
achieving sobriety is close to zero: The parents have a long history of substance
abuse; the mother completed treatment but continued to use; and the father
denies use despite test results establishing the fact of use. The prospect of
either parent being able to care for the children is also close to zero. The parents
did not participate in parenting services offered to address their respective
deficiencies in caregiving. The record establishes the parents were unable to
exercise appropriate supervision of and care for the children at the time of the
termination hearing.
The father contends the juvenile court should have granted him an
additional six months’ time to work toward reunification. The plain language of
section 232.104(2)(b) provides that additional time shall not be granted unless
the juvenile court specifically finds the basis for the need for removal of the child
will no longer exist at the end of the six-month period. See Iowa Code §
232.104(2)(b). We conclude the juvenile court did not err in denying the request. 4
As stated above, there is little prospect of the father addressing the issues giving
rise to removal. The father has criminal drug history. He denied any use or even
knowledge of what methamphetamine was despite repeatedly testing positive for
the same. Rather than addressing his substance abuse, the father blames lab
contamination, among other things, for the positive test results. What's past is
prologue. See In re J.E., 723 N.W.2d 793, 798 (Iowa 2006) (“When making this
decision, we look to the parent’s past performance because it may indicate the
quality of care the parent is capable of providing in the future.” (internal
quotations omitted)); In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998)
(“When the issue is a parent’s drug addiction, we must consider the treatment
history of the parent to gauge the likelihood that the parent will be in a position to
parent the child in the foreseeable future.”); id. (“Where the parent has been
unable to rise above the addiction and experience sustained sobriety in a
noncustodial setting, and establish the essential support system to maintain
sobriety, there is little hope of success in parenting.”); In re R.D., No. 14–0252,
2014 WL 1714959, at *2–3 (Iowa Ct. App. Apr. 30, 2014) (affirming termination of
parental rights where mother sought more time pursuant to section 232.104(2)(b)
but continued use during proceedings).
The father also contends the closeness of his relationship with the children
should serve to preclude termination. Section 232.116(3)(c) provides the court
may avoid termination if “[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.” The factor is permissive, and the court may use its
discretion in deciding whether to apply the factor to continue the parent-child 5
relationship. See A.M., 843 N.W.2d at 113. Our consideration is not merely
whether there is a parent-child bond, “our consideration must center on whether
the child would be disadvantaged by termination, and whether the disadvantage
overcomes” the father’s inability to provide for the children’s developing needs.
See In re D.W., 791 N.W.2d 703, 709 (Iowa 2010). Like the juvenile court, we
decline to exercise the permissive exception to termination of the father’s rights.
The children are young, and they have been removed from the father’s care for a
substantial period of time. The father has little to no bond with the younger child.
The father’s limited bond with the older child does not outweigh the risk of harm
the father poses to the child or the child’s need for permanency.
The mother raises six challenges to the termination of her parental rights.
While the mother identifies the issues, she does not present any argument in
support of the identified issues. To address the issues under these
circumstances, we would be obliged “to assume a partisan role and undertake
the appellant’s research and advocacy.” Inghram v. Dairyland Mut. Ins. Co., 215
N.W.2d 239, 240 (Iowa 1974). We decline to do so. The mother has waived the
issues. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of
an issue may be deemed waiver of that issue.”); Soo Line R.R. v. Iowa Dep’t of
Transp., 521 N.W.2d 685, 691 (Iowa 1994) (stating “random mention of [an]
issue, without elaboration or supportive authority, is insufficient to raise the issue
for [appellate] consideration”).
In the end, on de novo review, we conclude the State established by clear
and convincing evidence termination of each parent’s rights was authorized
pursuant to section 232.116(1)(h), termination of parental rights was in the best 6
interests of the children, and no countervailing considerations weighed in favor of
continuing the parental relationships. We affirm the judgment of the district court.