IN THE COURT OF APPEALS OF IOWA
No. 22-0439 Filed May 25, 2022
IN THE INTEREST OF G.B., Minor Child,
A.A., Mother, Appellant,
L.B., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Warren County, Mark F. Schlenker,
District Associate Judge.
The mother and father separately appeal the termination of their parental
rights. REVERSED AND REMANDED ON BOTH APPEALS.
Nancy L. Pietz, Des Moines, for appellant mother.
Thomas G. Crabb, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Toby J. Gordon, Assistant Attorney
General, for appellee State.
Magdalena Reese of the Juvenile Public Defenders Office, Des Moines,
attorney and guardian ad litem for minor child.
Considered by May, P.J., and Greer and Chicchelly, JJ. 2
GREER, Judge.
The mother and father separately appeal the termination of their respective
parental rights to their child, G.B., born in 2015. The juvenile court relied on Iowa
Code section 232.116(1)(f) (2021) for termination. The mother challenges the
statutory ground, claims the loss of her rights is not in the child’s best interests,
and maintains the parent-child bond is so strong that termination will harm G.B.
Alternatively, she asks for six more months to reunify with G.B. As it pertains to
his parental rights, the father seems to focus on a best-interests argument and a
request for more time.1
I. Background Facts and Proceedings.
The Iowa Department of Human Services (DHS) became involved with this
family in February 2019 after receiving allegations the father was using
methamphetamine and taking the mother’s prescription Adderall—an
amphetamine. The mother reported the father had a history of taking opiates and
was previously prescribed methadone2 for a period of time. The father agreed to
submit to a drug test, which was positive for fentanyl—a drug he is not prescribed.
1 The father also makes some arguments on behalf of the mother. The father cannot rely on the mother’s alleged fitness to parent as a reason his rights should not be terminated. See In re K.R., 737 N.W.2d 321, 323 (Iowa Ct. App. 2007) (“[The father] did not have standing to assert that argument on her behalf in an effort to ultimately gain a benefit for himself, that is, the reversal of the termination of his parental rights.”). He also cannot make arguments to bolster the mother’s case. See In re S.O., 967 N.W.2d 198, 206 (Iowa Ct. App. 2021) (“[O]ne parent cannot assert facts or legal positions pertaining to the other parent because the juvenile court makes a separate adjudication as to each parent.” (citing In re D.G., 704 N.W.2d 454, 460 (Iowa Ct. App. 2005))). 2 Methadone is “a synthetic addictive narcotic drug C H NO used especially in 21 27 the form of its hydrochloride for the relief of pain and as a substitute narcotic in the treatment of heroin addiction.” Methadone, Merriam-Webster, https://www. merriam-webster.com/dictionary/methadone (last visited Apr. 13, 2022). 3
When asked, the father told DHS it was not his urine that was tested; he said he
purchased synthetic urine from a store that promised it was free from substances.
He maintained he would only test positive for marijuana if his urine was tested.
On March 4, with the father’s consent, G.B. was removed from only his care.
The father agreed to leave the family home so G.B. could stay with the mother and
was told he needed to address his substance-abuse issues and come up with a
plan for pain management3 that would allow him to safely parent G.B. before
returning to live in the family home. The father maintained he handled pain
management through his marijuana usage.
The DHS social worker authored a report to the court leading up to the child-
in-need-of-assistance (CINA) review hearing in October 2019. In it, he reported
the father continued to openly use marijuana for his ongoing pain—admitting it to
both his medical doctors and DHS. The father maintained he did not use marijuana
around G.B. Still, the father missed both of the drug tests DHS asked of him—one
in August and one in September.
In a February 2020 report, the social worker noted the father also skipped
the third and fourth drug test DHS asked him to complete. When asked, the father
admitting skipping the fourth test—on December 30—because it would be positive
for Ecstasy.4 The social worker praised the mother in the report, noting she had
3 The father admitted he used marijuana daily over the past eight or so years and attributed his use to pain relief aid because he suffers from injuries to his shoulders that required several shoulder surgeries. 4 Ecstasy, also known as MDMA, is “a synthetic amphetamine analog C H NO 11 15 2 used illicitly for its mood-enhancing and hallucinogenic properties.” Ecstasy, Merriam-Webster, https://www.merriam-webster.com/dictionary/ecstasy (last visited Apr. 13, 2022). 4
done well to meet G.B.’s needs on her own while the father was out of the home.
Also, the mother was allowed to supervise visits between the father and G.B., and
the father was generally spending time in the family home daily, both in the morning
before school and again in the evening for a family meal. The social worker
recommended an extension in the case
so that [the parents] may evaluate their expectations regarding their relationship since [the father] has been unsuccessful in showing an ability to not use illicit drugs. [The mother] will need to determine if they will go their separate ways or how she is going to maintain an appropriate environment for the children.[5]
The court granted the extension in March, concluding the need for removal
would no longer exist in six months if the father participated in substance-abuse
treatment, which he was ordered to do.
In July, the court ordered the father to obtain a substance-abuse evaluation
and comply with any recommended treatment. It also ordered that a hair-stat test
be performed on G.B.6
During the August family team meeting, the father agreed to apply for a
medical cannabidiol registration card so he could legally treat his pain. See Iowa
Code § 124E.4 (listing requirements to apply for and obtain card). He also
5 The mother’s older child from another relationship lived in the home on an every- other-week basis. 6 It is unclear from the record before us when DHS received the information from
the father’s substance-abuse treatment facility, but the facility reported the father completed four drug tests between July 8, 2020, and September 25, 2020, and each of the four tests was reported as positive for amphetamines and THC. The father’s substance-abuse counselor later informed DHS that the facility’s drug-test results do not differentiate between amphetamines and methamphetamine. After the September 25 test, the father completed six additional drug tests, which were all negative for amphetamines. At some point, the father revoked his release, preventing the treatment facility from sharing further information with DHS. 5
suggested he would move to Texas if the next court hearing did not go well, leaving
the mother and G.B. in Iowa. At the same meeting, it was learned that the father
and G.B. never submitted to drug testing, as ordered by the juvenile court on
July 8. The social worker took them both for testing after the meeting.
Those tests showed positive results for amphetamine and
methamphetamine for both the father and G.B. The mother was tested shortly
after; her test was only positive for amphetamine, which was expected because of
her Adderall prescription. Both parents denied the father used illegal substances
in the home and claimed they could not explain how G.B. could have ingested
methamphetamine. They admitted another man, a friend of the father’s, was living
in the home with G.B. and the mother. But the father denied this man could be the
cause, stating the man’s drug of choice was heroin and the friend was involved in
substance-abuse treatment. DHS expressed concern that either the mother “was
oblivious to her surroundings and allow[ed G.B.] to have contact with
methamphetamine or has allowed [the father] to be around [G.B.] while under the
influence”; the county attorney moved to modify disposition to remove G.B. from
the mother’s care.
As a result of the child’s positive drug test, the court modified disposition,
placing G.B. in the custody of the maternal grandparents under the supervision of
DHS on September 25. Once G.B. was removed from both parents’ custody and
the family home, the father moved back in.
In October, both the mother and father had positive sweat-patch tests for
methamphetamine. 6
In December, the mother again had a sweat patch test positive for
methamphetamine. The parents continued to deny any use of methamphetamine.
They claimed the sweat patch results were erroneous and pointed to results from
urinalysis, which were not positive for methamphetamine.
In January 2021, the grandparents gave notice they were no longer able to
be G.B.’s full-time caregivers. The child was moved to a foster family—his first,
but not his last.7
In late March, the mother again tested positive for methamphetamine.
The State petitioned to terminate the parents’ rights in August 2021, and the
termination trial took place over three days: October 27, November 23, and
December 21, 2021.
The mother did not test positive for any illegal or unprescribed substances
after the March positive for methamphetamine through the final day of the
termination trial, December 21—a period of nearly nine months. The father, who
was open about his continued use of marijuana to self-treat his chronic pain, was
participating in continuing care with a substance-abuse counselor from June 2021
through the final date of the termination trial. The counselor testified the father
was required to meet with her at least one time in a three-month period but they
were generally meeting monthly. She saw no signs of him using
methamphetamine or other stimulants and, from June through December 21, the
father tested positive for marijuana and his prescribed methadone but did not test
positive for any other substances.
7By the time of the termination hearing, the child had resided in two different foster homes. 7
The mother’s former romantic partner testified at the termination trial. He is
the father of her thirteen-year-old child—G.B.’s half-sibling. He explained that he
and the mother share physical care of the teenager. DHS never removed the
teenager from the mother’s care. The half-sibling’s father and the mother wrongly
believed they were required to keep the teenager from the mother’s care for a
period of time, and the father followed what he believed was a requirement; but as
of approximately August 2021, the half-sibling’s father realized it was just a
recommendation that the half-sibling be removed from the mother’s care. At that
point, the half-sibling’s father and the mother returned to their normal, joint physical
care schedule. The half-sibling’s father testified he has contact with the mother
several times per week and does not believe she uses illegal substances; he has
no “concerns regarding [the mother’s] ability to safely parent” the half-sibling.
The family support specialist (FSS) also testified. She supervises visits
between G.B. and the parents twice per week. During these visits, she never
noticed any behavioral indicators from either parent of any drug usage. She
testified the visits go well and she thinks it is safe for G.B. to be returned to the
parents’ care.
The family’s social worker testified at the termination trial. For the first time,
he raised the theme of the father controlling the mother as a reason G.B. could not
safely be returned to the mother’s care.
The juvenile court filed a written ruling terminating the mother’s and the
father’s parental rights under Iowa Code section 232.116(1)(f). The court
concluded G.B. could not be returned to the parents’ care, ruling: 8
A parent has a duty to keep a child free from harm, and the record before this Court is such that [the mother] has failed to provide [a] consistent and convincing case that she could keep this child safe from the conduct of and controlling voice of the child’s substance- abusing father, as well as from her own struggle with illegal substances.
Each parent appeals.
II. Standard of Review.
Our review of termination proceedings is de novo. D.G., 704 N.W.2d at
457.
III. Discussion.
We recognize each parent has their own rights to and relationship with G.B.
See id. at 459 (“[I]n termination of parental rights proceedings each parent’s
parental rights are separate adjudications, both factually and legally.”). But we
also know that these parents live together and remain in a relationship. Each has
the goal to share in co-parenting G.B. with the other. We cannot ignore reality and
the extent these parents’ lives are intermixed when deciding their respective legal
challenges.
Here, we only find it necessary to address the parents’ request for additional
time to work toward reunification. See In re K.R., No. 19-0090, 2019 WL 1486612,
at *1 (Iowa Ct. App. Apr. 3, 2019) (declining to consider the section 232.116 three-
step analysis for termination of parental rights when the court determined an
extension of time was appropriate); In re R.M., No. 12-1886, 2013 WL 264326, at
*1 (Iowa Ct. App. Jan. 24, 2013) (same).
To start, we are not unconcerned about the parents’ use of illegal
substances. The mother tested positive for methamphetamine three times; the 9
father admitted to taking Ecstasy and other people’s prescription amphetamines,
and he also tested positive for methamphetamine. And it is inexcusable that then-
five-year-old G.B. tested positive for methamphetamine after apparently ingesting
the substance.8 But past positive drug tests alone are not sufficient to terminate
parental rights. See In re M.S., 889 N.W.2d 675, 682 (Iowa Ct. App. 2016) (ruling
positive drug tests are not sufficient to terminate; “the mere fact of use does not
establish adjudicatory harm”).
When G.B. was removed from the father’s care but still living with the
mother, DHS commended the mother’s parenting skills. The FSS worker testified
supervised visits go well and she believes G.B. could safely be returned to the
parent’s care. And when asked about the mother’s parenting, even the social
worker begrudgingly admitted that the mother is able to meet G.B.’s needs and
none of the FSS workers ever expressed concerns about her ability to parent G.B.
Additionally, G.B.’s school teacher indicated there were some minor behavioral
concerns with G.B. in the classroom but opined those would improve if G.B. was
returned to his parents. Some of the other common indicators of drug use are not
present in this case; the mother maintained the family home and employment
throughout DHS involvement.
From our perspective, the only fly in the ointment is the mother’s positive
tests for methamphetamine. We do not minimize these results. But the mother
went nearly nine months without testing positive for any unprescribed or illegal
8G.B.’s hair-stat results for methamphetamine were 3982 pg/mg, with a screening cut-off of 500 pg/mg. At the trial, the maternal grandfather testified he was told G.B. tested positive for methamphetamine “[b]ecause it was ingested.” 10
substances by the final date of the termination trial. 9 DHS expressed frustration
that the mother never took responsibility for or admitted to use that would result in
positive drug tests. But we do not terminate parental rights because a parent
refuses to make certain admissions. See In re C.H., 652 N.W.2d 144, 150 (Iowa
2002) (“[The State] may not specifically require an admission of guilt as part of the
treatment.”). And we also do not terminate parental rights just because a parent
failed to comply with DHS’s plans; we do not require compliance for compliance’s
sake. See M.S., 889 N.W.2d at 681 (“The failure to comply with the case plan is
not enough [to terminate parental rights].”). Rather, the operative question is
whether the parent can now, or within a short extension of time will be able to,
safely care for the child so that the need for removal will no longer exist. See Iowa
Code §§ 232.104(2)(b), 232.116(f)(4); M.S., 889 N.W.2d at 681 (reversing
termination where the State failed to establish a nexus between the father’s drug
use and an appreciable risk of adjudicatory harm to the child within the meaning
of section 232.102).
Additionally, with his testimony at the termination trial, the social worker
raised concerns about the power dynamic in the parents’ relationship—suggesting
the father controls the mother, which is another hurdle preventing G.B.’s return.
But we have not found anywhere in the record where the parents were alerted
DHS believed this was an issue before the termination trial, and the parents were
never recommended to participate in couple’s counseling or individual therapy. If
9Several witnesses testified, including the FSS and the mother’s parents; none observed any associated behaviors suggesting drug use by the mother. The mother also offered a letter from her medical doctor who confirmed similar observations. 11
DHS believes there is an issue that weighs in favor of terminating parental rights,
it needs to alert the parents of the problem and offer services to help early enough
in the proceedings that real change may be accomplished. See In re J.H., No. 17-
1101, 2017 WL 4570544, at *2 (Iowa Ct. App. Oct. 11, 2017) (“The core of the
reasonable efforts mandate is the child welfare agency must make reasonable
efforts to ‘facilitate reunification while protecting the child from the harm
responsible for the removal.’” (quoting In re M.B., 553 N.W.2d 343, 345 (Iowa Ct.
App. 1996)); cf. In re A.H., No. 21-1189, 2022 WL 246258, at *2 (Iowa Ct. App.
Jan. 27, 2022) (requiring parents to “ask for the services they believe they need to
achieve reunification early enough in the process that those services can
obtained—if possible—and provide a benefit to the parent within the statutory
timeline set out for terminations”). Moving the goalposts during the termination
trial is setting families up for failure. Unlike the juvenile court, we are not persuaded
the alleged power imbalance should prevent G.B.’s return to the mother’s care.
Under these facts, we conclude G.B. will be able to return to the mother’s
care after six additional months of negative drug tests. In reaching this conclusion,
we focus less on how the mother achieved sobriety and more on the fact that she
continues to live a sober life. And we note DHS never removed the mother’s
teenager from her custody and that child has continued to do well. We recognize
DHS and the juvenile court have been involved with this family for much of G.B.’s
life, but an extension is in G.B.’s best interests. See In re W.T., 967 N.W.2d 315,
323 (Iowa 2021) (“Not only must [the parent] show the impediments to placing [the
child] with [them] will not exist in six months, we must also consider whether further
delay is in [the child’s] best interests.”). G.B. and the mother are strongly bonded. 12
And, in the year after the child was removed from the mother’s care, G.B. lived
with his grandparents and then with two different foster families. We question how
integrated into another family G.B. could be. See Iowa Code § 232.116(2)(b)(1)
(determining the child’s best interests includes “whether the child has become
integrated into the foster family” and “the length of time the child has lived in a
stable, satisfactory environment”). For these reasons, we reverse the termination
of the mother’s parental rights and give her a six-month extension.
Next, we consider the father’s parental rights. But for the testing for illegal
substances, no concerns over the actual parenting skills of the father were noted
or observed by DHS.10 Yet the father continued to test positive for marijuana up
through the final date of the termination trial. We do not condone his use of the
illegal substance, but we note his substance-abuse counselor did not seem to be
concerned about this form of pain management. DHS also did not seem
concerned; the department’s focus was on the father obtaining a medical
cannabidiol registration card so his use would be legal—not on his ability to
function while using marijuana.11 See M.S., 889 N.W.2d at 683 (“The record does
not establish a nexus between [the father’s] cannabis use and an appreciable risk
of adjudicatory harm to the child.”). To support his progress, the father testified to
a close therapeutic relationship with his current drug counselor, who also testified
at the termination trial. Under her watch, other than marijuana and the methadone
10 Even after the father removed himself from the home, the case notes reflect positive parenting by both parents. Likewise, the child seemed happy and healthy. 11 In his petition on appeal, the father asserts he received his medical cannabidiol
registration card after the termination trial. This is outside our record, and we do not consider it. 13
he is prescribed, the father’s drug tests were negative from June 2021 through the
final day of the termination trial, which is a period of about six months. The father
needs to show he can continue to abstain from other, unprescribed drugs. And,
after an additional six months of otherwise negative drug tests, we conclude G.B.
could be returned to the father’s care. See Iowa Code § 232.104(2)(b). We also
reverse the termination of the father’s parental rights and grant him a six-month
extension.
IV. Conclusion.
We reverse the termination of the mother’s and the father’s parental rights;
we grant each parent a six-month extension.
REVERSED AND REMANDED ON BOTH APPEALS.
Chicchelly, J., concurs; May, P.J., dissents. 14
MAY, Presiding Judge (dissenting)
I must respectfully dissent. Like the juvenile court, I think the clock has run
out for these parents. I cannot justify giving them still more time to work toward
reunification. I agree with the majority that it was “inexcusable that then-five-year-
old G.B. tested positive for methamphetamine after apparently ingesting the
substance.” Indeed, given the dangers of methamphetamine, a five-year-old’s
ingestion of the substance should cause us all to exclaim, “Outrageous!” And yet
these parents take no accountability for G.B.’s methamphetamine-poisoning.
Instead, they are focused on deflecting blame from themselves. So I question
what “specific factors, conditions, or expected behavioral changes” are likely to
occur over the next six months that would allow for safe reunification with either
parent. See Iowa Code § 232.104(2)(b) (2021). Conversely, like the juvenile court,
I think the statutory ground for termination under section 232.116(1)(f) is met and
termination is in G.B.’s best interest as to each parent. So I would affirm the
juvenile court as to both parents.