IN THE COURT OF APPEALS OF IOWA
No. 23-0252 Filed April 26, 2023
IN THE INTEREST OF D.R., W.R., R.R. and G.Y., Minor Children,
J.R., Mother, Appellant,
J.R., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Clarke County, Monty W. Franklin,
District Associate Judge.
A mother and father separately appeal the termination of their parental
rights to their children. AFFIRMED ON BOTH APPEALS.
Shireen L. Carter of Shireen Carter Law Office, PLC, Norwalk, for appellant
mother.
Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, for appellant father.
Brenna Bird, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Tamara Lea Knight, Greenfield, attorney and guardian ad litem for minor
children.
Considered by Vaitheswaran, P.J., and Greer and Chicchelly, JJ. 2
CHICCHELLY, Judge.
A mother and father separately appeal the termination of their parental
rights to their children.1 The father challenges the grounds for termination. Both
the mother and the father contend termination is not in the children’s best interests
and ask us to preserve their parental rights based on one of the circumstances
listed in Iowa Code section 232.116(3) (2022). After a de novo review of the
record, see In re J.H., 952 N.W.2d 157, 166 (Iowa 2020), we affirm the termination
of both the mother’s and father’s parental rights.
The record shows there is a long history of concern for the children’s safety.
The children were adjudicated children in need of assistance (CINA) as part of
proceedings dismissed in 2017. Five protective services child abuse assessments
followed. In 2021, the children were removed from the home and again
adjudicated CINA.
The 2021 CINA adjudication was based on the mother and father using
marijuana and methamphetamine in the home. There were also concerns about
physical abuse by the father. The mother and father needed to address their
mental health and substance abuse before the children could be returned to them.
But their participation with the services offered was inconsistent, and neither made
significant progress in addressing those concerns during the CINA proceedings.
As a result, the State petitioned to terminate parental rights in July 2022. After a
1 This appeal involves four children between the ages of seven and fifteen. All four children share a mother. Three of the children, D.R., W.R., and R.R., share a father. The State did not seek to terminate the parental right of G.Y.’s father, who is custodian of G.Y. For simplicity, we refer to the father of D.R., W.R., and R.R. as “the father.” 3
November hearing, the juvenile court terminated both the mother’s and father’s
parental rights under Iowa Code section 232.116(1)(e) and (f).
We begin by addressing the father’s challenge to the grounds for
termination.2 Because the juvenile court terminated his parental rights on two
grounds, we may affirm if sufficient evidence supports either ground. See In re
A.B., 815 N.W.2d 764, 774 (Iowa 2012). Before terminating parental rights to a
child under section 232.116(1)(f), the juvenile court must find:
(1) The child is four years of age or older. (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 twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days. (4) There is 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.
The father concedes the first three elements but challenges the evidence showing
his children cannot be returned to him at the time of the termination hearing without
facing risk of harm sufficient for a CINA adjudication. See Iowa Code § 232.102(8)
(stating that the court can return a child to the home if a preponderance of the
evidence shows the child will not suffer harm that would lead to a CINA
adjudication); In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting “at the
present time” to mean at the time of the termination hearing).
Clear and convincing evidence shows the children cannot be returned to
the father due to his unresolved substance-abuse issues. In September 2021, the
2 The mother concedes the grounds for termination under section 232.116(1)(e) but contends that termination of her parental rights “is not in the children’s best interest nor necessary” under section 232.116(3)(a). 4
father’s drug test showed a “high positive result” for methamphetamine and
amphetamine. A substance abuse evaluation recommended an inpatient
treatment program and that the father continue with outpatient treatment until an
inpatient bed became available. Although the father highlights that he “briefly
participate[d] in outpatient treatment,” he attended only two appointments. As a
result, he was unsuccessfully discharged from outpatient treatment for failing to
attend. The father was referred to multiple inpatient treatment programs but never
followed through to attend any. His positive test for methamphetamine in May
2022, one of the few drug tests he complied with during the CINA proceedings,
shows that his methamphetamine use persists, endangering the children. See,
e.g., State v. Petithory, 702 N.W.2d 854, 859 (Iowa 2005) (stating that “the hazards
are too great” to leave children in the care of a methamphetamine user). Because
the father’s substance abuse would expose the children to harm leading to another
CINA adjudication, the grounds for termination under section 232.116(1)(f) have
been met.
We next turn to the claim raised by both the mother and father that
termination is not in their children’s best interests. In determining the children’s
best interests, we use the framework described in section 232.116(2). See In re
A.H.B., 791 N.W.2d 687, 690–91 (Iowa 2010). That provision requires that we
“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.” Iowa Code § 232.116(2).
The “defining elements” of the best-interests analysis are the child’s safety and 5
“need for a permanent home.” In re H.S., 805 N.W.2d 737, 748 (Iowa 2011)
(citation omitted).
The record shows the safety concerns that led to the CINA adjudication
continued to exist at the time of the termination hearing. Because the mother and
father failed to address their substance-abuse and mental-health issues, neither
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IN THE COURT OF APPEALS OF IOWA
No. 23-0252 Filed April 26, 2023
IN THE INTEREST OF D.R., W.R., R.R. and G.Y., Minor Children,
J.R., Mother, Appellant,
J.R., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Clarke County, Monty W. Franklin,
District Associate Judge.
A mother and father separately appeal the termination of their parental
rights to their children. AFFIRMED ON BOTH APPEALS.
Shireen L. Carter of Shireen Carter Law Office, PLC, Norwalk, for appellant
mother.
Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, for appellant father.
Brenna Bird, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Tamara Lea Knight, Greenfield, attorney and guardian ad litem for minor
children.
Considered by Vaitheswaran, P.J., and Greer and Chicchelly, JJ. 2
CHICCHELLY, Judge.
A mother and father separately appeal the termination of their parental
rights to their children.1 The father challenges the grounds for termination. Both
the mother and the father contend termination is not in the children’s best interests
and ask us to preserve their parental rights based on one of the circumstances
listed in Iowa Code section 232.116(3) (2022). After a de novo review of the
record, see In re J.H., 952 N.W.2d 157, 166 (Iowa 2020), we affirm the termination
of both the mother’s and father’s parental rights.
The record shows there is a long history of concern for the children’s safety.
The children were adjudicated children in need of assistance (CINA) as part of
proceedings dismissed in 2017. Five protective services child abuse assessments
followed. In 2021, the children were removed from the home and again
adjudicated CINA.
The 2021 CINA adjudication was based on the mother and father using
marijuana and methamphetamine in the home. There were also concerns about
physical abuse by the father. The mother and father needed to address their
mental health and substance abuse before the children could be returned to them.
But their participation with the services offered was inconsistent, and neither made
significant progress in addressing those concerns during the CINA proceedings.
As a result, the State petitioned to terminate parental rights in July 2022. After a
1 This appeal involves four children between the ages of seven and fifteen. All four children share a mother. Three of the children, D.R., W.R., and R.R., share a father. The State did not seek to terminate the parental right of G.Y.’s father, who is custodian of G.Y. For simplicity, we refer to the father of D.R., W.R., and R.R. as “the father.” 3
November hearing, the juvenile court terminated both the mother’s and father’s
parental rights under Iowa Code section 232.116(1)(e) and (f).
We begin by addressing the father’s challenge to the grounds for
termination.2 Because the juvenile court terminated his parental rights on two
grounds, we may affirm if sufficient evidence supports either ground. See In re
A.B., 815 N.W.2d 764, 774 (Iowa 2012). Before terminating parental rights to a
child under section 232.116(1)(f), the juvenile court must find:
(1) The child is four years of age or older. (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 twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days. (4) There is 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.
The father concedes the first three elements but challenges the evidence showing
his children cannot be returned to him at the time of the termination hearing without
facing risk of harm sufficient for a CINA adjudication. See Iowa Code § 232.102(8)
(stating that the court can return a child to the home if a preponderance of the
evidence shows the child will not suffer harm that would lead to a CINA
adjudication); In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting “at the
present time” to mean at the time of the termination hearing).
Clear and convincing evidence shows the children cannot be returned to
the father due to his unresolved substance-abuse issues. In September 2021, the
2 The mother concedes the grounds for termination under section 232.116(1)(e) but contends that termination of her parental rights “is not in the children’s best interest nor necessary” under section 232.116(3)(a). 4
father’s drug test showed a “high positive result” for methamphetamine and
amphetamine. A substance abuse evaluation recommended an inpatient
treatment program and that the father continue with outpatient treatment until an
inpatient bed became available. Although the father highlights that he “briefly
participate[d] in outpatient treatment,” he attended only two appointments. As a
result, he was unsuccessfully discharged from outpatient treatment for failing to
attend. The father was referred to multiple inpatient treatment programs but never
followed through to attend any. His positive test for methamphetamine in May
2022, one of the few drug tests he complied with during the CINA proceedings,
shows that his methamphetamine use persists, endangering the children. See,
e.g., State v. Petithory, 702 N.W.2d 854, 859 (Iowa 2005) (stating that “the hazards
are too great” to leave children in the care of a methamphetamine user). Because
the father’s substance abuse would expose the children to harm leading to another
CINA adjudication, the grounds for termination under section 232.116(1)(f) have
been met.
We next turn to the claim raised by both the mother and father that
termination is not in their children’s best interests. In determining the children’s
best interests, we use the framework described in section 232.116(2). See In re
A.H.B., 791 N.W.2d 687, 690–91 (Iowa 2010). That provision requires that we
“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.” Iowa Code § 232.116(2).
The “defining elements” of the best-interests analysis are the child’s safety and 5
“need for a permanent home.” In re H.S., 805 N.W.2d 737, 748 (Iowa 2011)
(citation omitted).
The record shows the safety concerns that led to the CINA adjudication
continued to exist at the time of the termination hearing. Because the mother and
father failed to address their substance-abuse and mental-health issues, neither
parent can meet the children’s needs or nurture their growth. As the juvenile court
found, “Any potential problems that may be caused by the termination of parental
rights will be far outweighed by the stability, certainty, and permanency that
termination will provide,” and the children’s “need for structure, consistency,
stability, and permanency far outweighs any negative effects that might be caused
by termination.” We agree that terminating the mother’s and father’s parental
rights serves the children’s best interests.
In arguing that termination goes against the children’s best interests, both
the mother and father cite Iowa Code section 232.116(3). That provision lists
circumstances under which the court “need not terminate the relationship between
the parent and child.” The mother relies on section 232.116(3)(a), which applies
when a relative has legal custody of the child. The father relies on
section 232.116(3)(c), which applies when there is clear and convincing evidence
that termination would harm the child based on the closeness of the parent-child
relationship. He argues the children’s best interests would be served by granting
his request for a guardianship rather than terminating his parental rights.
The decision to avoid termination based on the provisions of
section 232.116(3) is “permissive, not mandatory.” In re A.S., 906 N.W.2d 467,
475 (Iowa 2018). Whether to apply it to determine whether to save the parent- 6
child relationship depends on the unique facts of the case before us. Id. The
parent resisting termination bears the burden of establishing one of the
circumstances listed under section 232.116(3). Id. at 476.
We decline to preserve parental rights based any of the criteria listed in
section 232.116(3). We have found termination is in the children’s best interests,
and the relatives’ willingness to take the children does not change that. See id. at
475. Nor has the father shown his bond with the children is so strong that
terminating his parental rights would harm them. Even so, a guardianship
inherently lacks permanence and is not preferred to termination of parental rights.
See id. at 477–78.
Because clear and convincing evidence establishes the grounds for
termination and shows termination is in the children’s best interests, we affirm the
termination of the mother’s and father’s parental rights.
AFFIRMED ON BOTH APPEALS.