In the Interest of J.H., Minor Child, C.H., Father, J.M., Mother

• Court: Court of Appeals of Iowa
• Decided: November 9, 2016
• Docket: 16-1501
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-1501 Filed November 9, 2016

IN THE INTEREST OF J.H., Minor child,

C.H., Father, Appellant,

J.M., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Calhoun County, Adria A.D. Kester,

District Associate Judge.

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

AFFIRMED ON BOTH APPEALS.

Joseph L. Tofilon of Thatcher, Tofilon & Livingston, P.L.C., Fort Dodge, for

appellant father.

Jeffrey S. Kuchel of Shors & Thomas, Pocahontas, for appellant mother.

Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

Martha A. Sibbel of the Law Office of Martha Sibbel P.L.C., Carroll,

guardian ad litem for minor child.

Considered by Danilson, C.J., and Doyle and McDonald, JJ. 2

DOYLE, Judge.

The mother and the father of J.H. appeal the order terminating their

parental rights. We review their claims de novo. See In re P.L., 778 N.W.2d 33,

40 (Iowa 2010). On de novo review, we are not bound by the juvenile court’s fact

findings, although we give them deference. See In re D.W., 791 N.W.2d 703,

706 (Iowa 2010). “We will uphold an order terminating parental rights if there is

clear and convincing evidence of grounds for termination under Iowa Code

section 232.116 [(2015)].” Id.

The Iowa Department of Human Services removed the child from the

parents’ care at birth after the child tested positive for methamphetamine and

oxycodone. The mother admitted she and the father actively used

methamphetamine throughout her pregnancy. After several months in foster

care, the child was placed in the care of a paternal uncle and his wife, where the

child remains.

After delaying termination for six months, the juvenile court eventually

terminated the mother’s and the father’s parental rights under Iowa Code section

232.116(1)(h). There is no dispute that the State proved the grounds for

termination under this section. See P.L., 778 N.W.2d at 40 (noting that the court

need not analyze whether the grounds for termination exist under section

232.116(1) where the parent does not dispute the existence of the grounds for

termination). Neither parent was in a position to care for the child at the time of

the termination-of-parental-rights hearing. Both admitted to substance abuse

and addiction issues. Neither had completed the recommended mental health or

substance abuse treatment. The mother tested positive for methamphetamine 3

just three weeks before the hearing and was facing charges for possession of

methamphetamine. The father pled guilty to four felony charges and, as a result,

faced a sentence of up to forty-five years in prison.

The parents instead argue termination is not in the child’s best interests,

citing their bond with the child.1 See Iowa Code § 232.116(2) (listing the child’s

emotional condition and needs as factors to consider in determining whether to

terminate parental rights). We disagree. Although delaying the termination

decision may serve the parents’ best interests, it is not in the best interests of the

child.

The record shows the paternal uncle and his wife have bonded with the

child, provided a safe home, and met the child’s physical and emotional needs.

They have a bond with the child and are willing to adopt the child to provide a

permanent home. In contrast to the stability and consistency the paternal uncle

and his wife have provided the child, the parents can offer nothing more than the

hope that they may one day be able to do better.

“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.” P.L., 778 N.W.2d at 41. Children require permanency. See

In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially)

1 The mother argues that placing the child in the guardianship of the paternal uncle and aunt is in the child’s best interests. See Iowa Code § 232.104(2)(d)(1) (providing that after a permanency hearing, the court may enter an order transferring guardianship and custody of the child to a suitable person). However, before the court may enter a guardianship order, it must first find that terminating parental rights is not in the child’s best interests. See id. § 232.104(3)(a). Our resolution of the best interests argument forecloses this claim. 4

(noting the “defining elements in a child’s best interest” are the child’s safety and

“need for a permanent home”). Here, the juvenile court gave the parents six

additional months to demonstrate they could provide a home for the child, and

they were unable to do so. Delaying permanency any further is not in the child’s

best interests. As we have stated numerous times, children are not equipped

with pause buttons. “The crucial days of childhood cannot be suspended while

parents experiment with ways to face up to their own problems.” In re A.C., 415

N.W.2d 609, 613 (Iowa 1987); see also In re D.J.R., 454 N.W.2d 838, 845 (Iowa

1990) (“We have long recognized that the best interests of a child are often not

served by requiring the child to stay in ‘parentless limbo.’” (citation omitted)); In re

Kester, 228 N.W.2d 107, 110-11 (Iowa 1975) (refusing to “gamble with the

children’s future” or force the children to “await their [parent]’s maturity” where

the parent’s history shows “good intentions, but feeble resistance to temptation

and wrongdoing”).

The parents also seek to avoid termination of their parental rights under

one of the exceptions set forth in section 232.116(3). These exceptions are

permissive, not mandatory. See also In re C.L.H., 500 N.W.2d 449, 454 (Iowa

Ct. App. 1993), overruled on other grounds by P.L., 778 N.W.2d at 39-40. We

may apply the exceptions in our discretion based on the circumstances of each

case and the child’s best interests. See id. Having found termination is in the

child’s best interests, we decline to apply any exception to termination provided

in section 232.116(3). Accordingly, we affirm.