IN THE COURT OF APPEALS OF IOWA
No. 24-1632 Filed January 23, 2025
IN THE INTEREST OF E.B.-R., Minor Child,
N.W., Father, Appellant,
B.W., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Korie Talkington,
Judge.
A mother and father separately appeal a juvenile court order terminating
their parental rights. AFFIRMED ON BOTH APPEALS.
G. Brian Weiler, Davenport, for appellant father.
Jennifer Triner Olsen, Davenport, for appellant mother.
Brenna Bird, Attorney General, and Natalie Hedberg, Assistant Attorney
General, for appellee State.
Brian Patrick Donnelly, Clinton, attorney and guardian ad litem for minor
child.
Considered by Schumacher, P.J., and Badding and Chicchelly, JJ. 2
BADDING, Judge.
The Iowa Department of Health and Human Services has been involved
with this family since February 2022, when the child was just one year old. After
more than two years of reunification services, the juvenile court terminated the
parents’ rights under Iowa Code section 232.116(1)(e) and (h) (2024), finding the
“child is in need of permanency and should not have to wait any longer.” We agree
and affirm on both parents’ appeals.
I. Background Facts and Proceedings
The parents’ child,1 who was born in November 2020, has seen little
consistency in his short life. In early 2022, law enforcement executed a search
warrant at the mother’s home and found methamphetamine in her bedroom. The
State petitioned to have the child adjudicated as a child in need of assistance in
March. Although the mother was uncooperative with the department, the child
remained in her custody until May, when the mother brought the child and his then
thirteen-year-old sister to a house where people were using drugs. While they
were there, a shooting took place. Under a safety plan with the mother, the two
children were moved to their maternal great-grandmother’s home. They stayed
there until August, after their father tested negative for drugs. The parents
stipulated to the children’s adjudication, and a September dispositional order
placed them in the father’s custody under the department’s supervision.
1 The parents are married and share two children together—the child involved in
this appeal and a daughter, born in 2009. The mother also has an older child, born in 2005, from a different relationship. The permanency plan for the middle child was a guardianship, and the oldest child turned eighteen in 2023, so neither are involved here. 3
But in January 2023, the children were removed from the father’s custody
after he was arrested for five felonies, including third-degree burglary and first-
degree theft. Before his arrest, the father had been avoiding drug testing for the
department and acting erratically. The children were placed with the same foster
family until May, when that family notified the department that they could no longer
care for the children. Since then, the child at issue in this case has been placed
apart from his older sister, moving to three homes before finding one where he
“blossomed,” according to the department’s case manager. The child has been
settled in that home for more than one year. Meanwhile, his parents have
remained unsettled.
The mother was in and out of jail for most of these proceedings. In between
her incarcerations, she was discharged from two outpatient substance-use
treatment programs in 2023. Although she completed a twenty-one-day inpatient
treatment program in December, the mother did not comply with drug testing,
attending just four of the nineteen tests that were offered. She also missed several
visits with the child, who struggled behaviorally after seeing her. And the mother
was sporadically employed, with no stable housing.
The father remained in jail until July 2023, when he pled guilty to first-degree
theft and received a suspended sentence with five years of probation. He started
visits with the children almost immediately after his release and secured housing,
employment, and a substance-use evaluation. But his first drug test after his
release was positive for methamphetamine, and he missed multiple tests after that.
Yet after a permanency hearing in October, the juvenile court granted the parents
a short extension “to work toward reunification,” requiring them to “comply with all 4
requests for drug testing,” follow recommendations for substance-use and mental-
health treatment, and otherwise establish stability.
By the end of December, the court found the father had
completely failed to comply with the court’s order. He failed to attend the scheduled drug tests. He claims that on one occasion he was in the middle of a work project that he could not leave, and that he did not receive the second notification. It is time for him to quit playing games. The court order was clear. If he wants to demonstrate his sobriety then he must comply.
Because of the parents’ lack of progress, the court changed the permanency goal
for the child to termination of parental rights.
The father tested positive for methamphetamine twice after that order, once
in January 2024 and again in February, although he denied use. At the beginning
of February, the State petitioned to terminate the parents’ rights. The mother was
arrested for possession of methamphetamine, among other charges, in April. She
was still in jail when the termination hearing began the next month. The father’s
circumstances, however, had improved. He had maintained housing since the
beginning of the year and was working as a self-employed contractor. The father
attended nearly every visit offered to him, missing just one in the eight months
before the hearing. And his visits with the child went well. But the father’s
compliance with drug testing remained poor. Although he had a negative urinalysis
in February and a negative sweat patch in April, the father missed tests in March
and May. The case manager testified, “he’s choosing which tests to attend and
which ones not to, so I don’t have consistent drug test results that are negative.”
At the second day of the termination hearing in June, the father was wearing
another sweat patch. The department had not received the results from that test 5
because the father had interfered with the removal of the patch by trying to take
pictures of the process. The court denied the father’s request to keep the record
open for the test results, reasoning:
Your motion assumes he’s going to show up, number one. It assumes he will be tested timely. I have no idea how long I’ll be waiting, and that delays my decision, which delays permanency for these children. . . . If it happens to be there before I hit file, I will consider it, and if not, I’m not going to wait.
Less than two weeks after the hearing, the State moved to reopen the record to
submit additional evidence about the results of that sweat patch. The court granted
that motion and set a hearing. But at the hearing in September, the State withdrew
its motion, and the parties agreed the court should “not consider any docket entries
filed after June 10, 2024.”
On that evidence, the juvenile court terminated both parents’ rights under
Iowa Code section 232.116(1)(e) and (h). The mother and father separately
appeal.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF IOWA
No. 24-1632 Filed January 23, 2025
IN THE INTEREST OF E.B.-R., Minor Child,
N.W., Father, Appellant,
B.W., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Korie Talkington,
Judge.
A mother and father separately appeal a juvenile court order terminating
their parental rights. AFFIRMED ON BOTH APPEALS.
G. Brian Weiler, Davenport, for appellant father.
Jennifer Triner Olsen, Davenport, for appellant mother.
Brenna Bird, Attorney General, and Natalie Hedberg, Assistant Attorney
General, for appellee State.
Brian Patrick Donnelly, Clinton, attorney and guardian ad litem for minor
child.
Considered by Schumacher, P.J., and Badding and Chicchelly, JJ. 2
BADDING, Judge.
The Iowa Department of Health and Human Services has been involved
with this family since February 2022, when the child was just one year old. After
more than two years of reunification services, the juvenile court terminated the
parents’ rights under Iowa Code section 232.116(1)(e) and (h) (2024), finding the
“child is in need of permanency and should not have to wait any longer.” We agree
and affirm on both parents’ appeals.
I. Background Facts and Proceedings
The parents’ child,1 who was born in November 2020, has seen little
consistency in his short life. In early 2022, law enforcement executed a search
warrant at the mother’s home and found methamphetamine in her bedroom. The
State petitioned to have the child adjudicated as a child in need of assistance in
March. Although the mother was uncooperative with the department, the child
remained in her custody until May, when the mother brought the child and his then
thirteen-year-old sister to a house where people were using drugs. While they
were there, a shooting took place. Under a safety plan with the mother, the two
children were moved to their maternal great-grandmother’s home. They stayed
there until August, after their father tested negative for drugs. The parents
stipulated to the children’s adjudication, and a September dispositional order
placed them in the father’s custody under the department’s supervision.
1 The parents are married and share two children together—the child involved in
this appeal and a daughter, born in 2009. The mother also has an older child, born in 2005, from a different relationship. The permanency plan for the middle child was a guardianship, and the oldest child turned eighteen in 2023, so neither are involved here. 3
But in January 2023, the children were removed from the father’s custody
after he was arrested for five felonies, including third-degree burglary and first-
degree theft. Before his arrest, the father had been avoiding drug testing for the
department and acting erratically. The children were placed with the same foster
family until May, when that family notified the department that they could no longer
care for the children. Since then, the child at issue in this case has been placed
apart from his older sister, moving to three homes before finding one where he
“blossomed,” according to the department’s case manager. The child has been
settled in that home for more than one year. Meanwhile, his parents have
remained unsettled.
The mother was in and out of jail for most of these proceedings. In between
her incarcerations, she was discharged from two outpatient substance-use
treatment programs in 2023. Although she completed a twenty-one-day inpatient
treatment program in December, the mother did not comply with drug testing,
attending just four of the nineteen tests that were offered. She also missed several
visits with the child, who struggled behaviorally after seeing her. And the mother
was sporadically employed, with no stable housing.
The father remained in jail until July 2023, when he pled guilty to first-degree
theft and received a suspended sentence with five years of probation. He started
visits with the children almost immediately after his release and secured housing,
employment, and a substance-use evaluation. But his first drug test after his
release was positive for methamphetamine, and he missed multiple tests after that.
Yet after a permanency hearing in October, the juvenile court granted the parents
a short extension “to work toward reunification,” requiring them to “comply with all 4
requests for drug testing,” follow recommendations for substance-use and mental-
health treatment, and otherwise establish stability.
By the end of December, the court found the father had
completely failed to comply with the court’s order. He failed to attend the scheduled drug tests. He claims that on one occasion he was in the middle of a work project that he could not leave, and that he did not receive the second notification. It is time for him to quit playing games. The court order was clear. If he wants to demonstrate his sobriety then he must comply.
Because of the parents’ lack of progress, the court changed the permanency goal
for the child to termination of parental rights.
The father tested positive for methamphetamine twice after that order, once
in January 2024 and again in February, although he denied use. At the beginning
of February, the State petitioned to terminate the parents’ rights. The mother was
arrested for possession of methamphetamine, among other charges, in April. She
was still in jail when the termination hearing began the next month. The father’s
circumstances, however, had improved. He had maintained housing since the
beginning of the year and was working as a self-employed contractor. The father
attended nearly every visit offered to him, missing just one in the eight months
before the hearing. And his visits with the child went well. But the father’s
compliance with drug testing remained poor. Although he had a negative urinalysis
in February and a negative sweat patch in April, the father missed tests in March
and May. The case manager testified, “he’s choosing which tests to attend and
which ones not to, so I don’t have consistent drug test results that are negative.”
At the second day of the termination hearing in June, the father was wearing
another sweat patch. The department had not received the results from that test 5
because the father had interfered with the removal of the patch by trying to take
pictures of the process. The court denied the father’s request to keep the record
open for the test results, reasoning:
Your motion assumes he’s going to show up, number one. It assumes he will be tested timely. I have no idea how long I’ll be waiting, and that delays my decision, which delays permanency for these children. . . . If it happens to be there before I hit file, I will consider it, and if not, I’m not going to wait.
Less than two weeks after the hearing, the State moved to reopen the record to
submit additional evidence about the results of that sweat patch. The court granted
that motion and set a hearing. But at the hearing in September, the State withdrew
its motion, and the parties agreed the court should “not consider any docket entries
filed after June 10, 2024.”
On that evidence, the juvenile court terminated both parents’ rights under
Iowa Code section 232.116(1)(e) and (h). The mother and father separately
appeal.
II. Standard of Review
We review terminations of parental rights de novo, using a three-step
analysis that asks whether (1) a statutory ground for termination is satisfied, (2) the
child’s best interests are served by termination, and (3) a statutory exception
applies and should be exercised to preclude termination. In re L.B., 970
N.W.2d 311, 313 (Iowa 2022); see also Iowa Code § 232.116(1)–(3). Our review
is confined to the steps raised by each parent on appeal. In re P.L., 778
N.W.2d 33, 40 (Iowa 2010). 6
III. Analysis
The mother’s petition on appeal contains one issue: “The Juvenile Court
erred in finding clear and convincing evidence that it was in the child’s best interest
to terminate parental rights . . . .” Under that issue heading, she challenges each
of the three steps involved in our analysis. But she does so on the father’s behalf,
arguing “there was no clear and convincing evidence that the children could not be
returned safely to [the father]”; the “father was having significant and meaningful
contact with the child”; and termination “is not in the best interest of the child herein
in that he is so very bonded to his father and he has complied with the services
offered to him.” Because the mother lacks standing to assert arguments on the
father’s behalf, we do not consider those arguments and summarily affirm the
termination of her parental rights. See In re C.T., No. 18-2199, 2019 WL 1055897,
at *1 n.1 (Iowa Ct. App. Mar. 6, 2019) (collecting cases where we “rejected
challenges to termination of one parent’s rights based solely on the assertion that
the child could or should be returned to the other parent”).
Turning to the father’s appeal, he only challenges the sufficiency of the
evidence supporting the statutory grounds for termination. “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.” In re
A.B., 815 N.W.2d 764, 774 (Iowa 2012). We find termination of the father’s
parental rights was proper under section 232.116(1)(h).
The father contests the fourth element of that ground, which requires clear
and convincing evidence “that the child cannot be returned to the custody of the
child’s parent[] . . . at the present time.” Iowa Code § 232.116(1)(h)(4); In re D.W., 7
791 N.W.2d 703, 707 (Iowa 2010) (interpreting the statutory language “at the
present time” to mean “at the time of the termination hearing”). The juvenile court
found that element had been met, ruling the father
has never addressed his substance use. He missed many more tests tha[n] he attended. The court lectured him about the importance of attending testing in January, but he continued to routinely miss. Only [the father] knows whether he is sober. That is because [he] has not taken advantage of the chances he has been given to provide samples for testing. As stated by [the case manager], when tests are missed, they are presumed to be positive.
We agree that the father is not entitled to the benefit of the doubt with respect to
tests he declined to submit. See In re R.A., No. 21-0746, 2021 WL 4891011, at *1
(Iowa Ct. App. Oct. 20, 2021) (“We presume these missed tests would have been
positive for illegal substances.”).
The father argues that his “job sometimes interfered with request[s] to drug
test.” But he was self-employed, and the case manager testified that she “tried to
work with his work schedule and schedule them in the evening.” The father also
argues that he complied with all case plan expectations, pointing out that he
obtained substance-use and mental-health evaluations, maintained stable housing
and employment, and complied with his probation requirements. Those efforts,
however, do not outweigh the concerns for the father’s sobriety. As the case
manager explained: “Regardless of . . . how he believes those tests were positive,
they were positive, and he has not demonstrated honesty in his substance use and
has not demonstrated long-term sobriety.”
“We cannot turn a blind eye to the [father’s] history of use.” In re E.H.,
No. 21-0467, 2021 WL 2709486, at *2 (Iowa Ct. App. June 30, 2021). The father
refused to acknowledge that history, instead blaming his three positive tests over 8
several months on the specter of contamination at the testing center. But the father
presented no evidence of contamination, and we do not find his account credible.
As the case manager testified, “If it was a space that was contaminated, . . .
everybody would be testing positive. There are precautions.” Since the father
refused to admit that he used methamphetamine, he never received any treatment.
This leads us to fear that his use is likely to continue. See id. Because a “parent’s
methamphetamine use, in itself, creates a dangerous environment,” we find
sufficient evidence that the child could not safely be returned to the father’s care.
In re J.P., No. 19-1633, 2020 WL 110425, at *2 (Iowa Ct. App. Jan. 9, 2020).
For these reasons, we affirm the termination of the parents’ rights to their
AFFIRMED ON BOTH APPEALS.