In the Interest of J.H., Minor Child

• Court: Court of Appeals of Iowa
• Decided: April 10, 2024
• Docket: 23-2108
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-2108 Filed April 10, 2024

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

A.H., Father, Appellant,

R.H., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Wapello County, Richelle Mahaffey,

Judge.

A mother and father separately appeal the termination of their parental

rights to their child. AFFIRMED ON BOTH APPEALS.

Jonathan Willier, Centerville, for appellant father.

Patricia J. Lipski, Washington, for appellant mother.

Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney

General, for appellee State.

Samuel K. Erhardt, Ottumwa, attorney and guardian ad litem for minor child.

Norman L. Springer Jr., Council Bluffs, attorney for intervenors K.F. and

V.F.

Considered by Bower, C.J., and Greer and Chicchelly, JJ. 2

GREER, Judge.

A mother with a long history of involvement with the Iowa Department of

Health and Human Services (the department) and a father separately appeal the

termination of their respective parental rights to their child, J.H., born in May 2022.

The mother challenges the statutory grounds for termination and wraps a request

for the application of a permissive exception and six more months of time into a

best-interests argument. The father challenges the statutory ground for

termination. We affirm on both appeals.

I. Background Facts and Prior Proceedings.

The mother has been involved with the department off and on since 2011.

In August 2021, her parental rights to an older child were terminated. Another of

her children, L.M., was adjudicated in need of assistance (CINA) in the same

month; he was previously placed with his father but his father passed away.1 When

J.H. was born, the department was already in monthly contact with the mother due

to the CINA proceedings involving L.M. In July 2022, during the monthly visit, the

department social work case manager believed that the mother was using

methamphetamine and struggling with mental health. The department attempted

to perform a child-abuse assessment, but the mother did not respond to phone

calls or text messages over three days, and when the maternal grandfather

attempted to convince her to cooperate with the department by speaking with her

at her home, the mother drove off with J.H. J.H. was removed from the mother’s

care via ex parte removal order and placed with her maternal grandparents. After

1 L.M. aged out of services through the department in October 2022. 3

removal, the mother admitted that she had used methamphetamine; she declined

any visitation with J.H. for many months. The father participated in paternity testing

in September that established that he was J.H.’s biological father. While the

mother has a history of methamphetamine use, the father has a history of alcohol

and marijuana use and a criminal history of alcohol-related charges.

In September, J.H. was adjudicated CINA pursuant to Iowa Code

section 232.96A(3)(b) and (14) (2022). The mother had only one visit with the child

since her birth and indicated she would consent to the termination of her parental

rights. In October, the father was arrested and held in jail on charges of assault

with intent to commit sex abuse, first-degree attempted burglary, third-degree

criminal mischief, and going armed with intent; two charges of first-degree

harassment were later filed. Following a November review hearing where the

mother confirmed she did not want to participate in services or visitations, the

juvenile court stated that, “based on the [mother’s] request—[the department] need

not engage [her] in services or whether she wishes to have interaction/visitation

with the child.”

The juvenile court held a permanency hearing in January 2023. The State

filed a petition to terminate the parents’ parental rights the same month. In

February, the father pleaded guilty to second-degree attempted burglary, two

counts of first-degree harassment, third-degree criminal mischief, and going armed

with intent; he was placed on supervised probation. He completed a substance-

use evaluation, which recommended continuing care; he met the diagnostic criteria

for alcohol abuse. Ultimately, he admitted that he was intoxicated at the time of 4

the October charges. The mother was also on probation from a previous

conviction.

In March, the mother began participating in family treatment court and

checked herself into residential treatment for substance use. At this time, the

mother asked to resume visitation with J.H. but said to the caseworker: “Can you

please make sure you bring the right baby? Because the last time they brought

the wrong baby to my visit.” This was concerning to the department. But both

parents began having in-person visits with J.H., and the court agreed to continue

the termination hearing to give the parents time to work toward reunification. Still,

the father did not participate in mental-health therapy. To her credit, the mother

completed residential treatment, transitioned to extended outpatient treatment,

and began seeing a mental-health therapist. The mother moved into the father’s

home in May, and they began to have visits with J.H. jointly in June; visits

eventually progressed to three, six-hour visits and one overnight per week.

In June, the father’s probation officer found marijuana in the parents’ home.

The father was tested, and the results came back negative for any substances.

The father reported that the marijuana was the mother’s. Yet, he also reported

that it was his brother’s. Then he changed his story to a carpenter doing work in

the home owned the marijuana. The mother was pregnant at the time and, in July,

reported that she was feeling depressed and needed to change her medication.

The same month, she told the social work case manager that she had used

methamphetamine. Visits went back to fully-supervised with no overnight visits.

But shortly after, the visits returned to semi-supervised in August with overnights

added in September. 5

The court held a joint termination and permanency hearing in September

and October. As of the time of the hearing, J.H. was sixteen months old and had

been removed from her parents’ custody for fourteen months. At the hearing, the

social work case manager testified. She stated that by March 2023, “there was no

bond” between the mother and J.H. because the mother “hadn’t seen her in eight

months almost” before she reengaged with visits that month. She also testified

that although the mother and father had made significant progress, especially in

the weeks leading up to the hearing, she did not think that the mother was in long-

term recovery and therefore was recommending termination. She also felt that the

parents “just have more changes they need to make, and they need to be long-

lasting changes.”

Both the mother and the father also testified. The mother testified that she

had “had [her] rights terminated on [her] second boy.” And she did not “want to

feel that again.” At the same time, she admitted to relapsing by again using

methamphetamine two months prior to the hearing. She added that marijuana was

never her drug of choice; she only struggles with methamphetamine use. The

father testified that he has ten other children; yet none of them live with him. He

stated that he had not smoked marijuana since he was released from jail: “I don’t

use it. I don’t need it, so it wouldn’t be in my home.” At the same time, he admitted

that he had a barbecue at his home in July, and “one of the guys helping” him put

marijuana in a box in his room. “He left it because he was drunk or whatever.” He

also admitted to at least ten charges for public intoxication in the last ten years and

three charges for operating while intoxicated. Even though the department raised

concerns about the safety of the child due to the people invited into the home, the 6

father admitted that he allowed an acquaintance he met while in jail to stop by his

home during a visit with J.H. in spite of that person’s criminal history. Overall, he

insisted that he was relying on his own willpower to remain sober and was fighting

to “stay clean and have [his] baby in [his] life.” Lastly, the family support worker

testified and agreed that both parents have had substance-use and criminal issues

for over ten years, but have been making progress for the six months prior to the

hearing.

In December, the court terminated the mother’s and father’s parental rights

pursuant to Iowa Code 232.116(1)(h) and the mother’s rights under 232.116(1)(g).

The father filed his notice of appeal. After the father appealed, the mother filed a

motion to reconsider, enlarge, or amend, which the court dismissed, finding that it

no longer had jurisdiction. The mother then filed her notice of appeal.

II. Standard of Review.

We review the termination of parental rights de novo. In re Z.K., 973 N.W.2d

27, 32 (Iowa 2022). We give careful consideration to the court’s factual findings

and determinations based on in-person observations, but we are not bound by

them. In re W.M., 957 N.W.2d 305, 312 (Iowa 2021). “[O]ur fundamental concern”

in review of termination proceedings “is the child’s best interests.” In re J.C., 857

N.W.2d 495, 500 (Iowa 2014).

III. Analysis.

In general, we follow a three-step analysis in reviewing the termination of a

parent’s rights. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). We first consider

whether there is a statutory ground for termination of the parent’s rights under

section 232.116(1). Id. Second, we look to whether termination of the parent’s 7

rights is in the child’s best interests. Id. (citing Iowa Code § 232.116(2)). Third,

we consider whether any of the exceptions to termination in section 232.116(3)

should be applied. Id. We review only those steps that are actually raised and

briefed on appeal by the parent challenging termination. See Hyler v. Garner, 548

N.W.2d 864, 870 (Iowa 1996). We address the mother’s and the father’s appeals

separately.

A. Mother’s Appeal.

1. Statutory Ground for Termination. First, the mother asserts that the State

failed to prove termination under Iowa Code section 232.116(1)(h) by clear and

convincing evidence. However, she also stated that she “acknowledges that the

grounds for termination of her parental rights under Iowa Code

[section] 232.116(1)(g) have each been met by clear and convincing evidence.”

“On appeal, we may affirm the juvenile court’s termination order on any ground

that we find supported by clear and convincing evidence.” In re D.W., 791 N.W.2d

703, 707 (Iowa 2010). Thus, we summarily affirm termination of the mother’s

parental rights under paragraph (g). See P.L., 778 N.W.2d at 40.

2. Best Interests, Permissive Exception, and Six Additional Months. Next,

the mother contends that termination of her parental rights is not in J.H.’s best

interests due to the closeness of the mother-daughter bond or because the need

for termination would no longer exist after six additional months. In this way, the

mother packages an argument for the court to rely on the permissive exception to

avoid termination and a request for six additional months into a best-interests

argument. But, the best-interests analysis is distinct from both the permissive

exception and a request for six additional months. See In re A.B., No. 23-0235, 8

2023 WL 3335422, at *2 (Iowa Ct. App. May 10, 2023) (“In considering the best

interests of the children, we are required to use the best-interests framework set

out by our legislature. And that framework does not include the word ‘bond.’”

(citations omitted)). Put another way, “[c]onsideration of the parent-child bond is

not a part of our best-interests analysis.” In re E.S., No. 23-0590, 2023 WL

4104126, at *2 (Iowa Ct. App. June 21, 2023). Rather, the consideration of the

bond between the family members implicates the permissive exception under

section 232.116(3)(c).

So, we first consider the mother’s best-interests argument and direct our

focus to the primary considerations of the child’s safety; the best placement for

furthering the long-term nurturing and growth of the child; and the physical, mental,

and emotional condition and needs of the child. See Iowa Code § 232.116(2); In

re J.E., 723 N.W.2d 793, 798 (Iowa 2006). Here, the best interests of J.H. require

termination of the mother’s parental rights. Without looking at the existence of any

bond or what the mother’s parenting abilities could look like in six months, at the

time of the termination trial, the mother had recently used methamphetamine after

completing residential substance-use treatment. As noted by the social work case

manager, the mother’s struggle with her mental health was related to her choice

to continue her methamphetamine usage. And in July 2023, when she relapsed,

the mother blamed it on feeling sad. Commenting on the July relapse, the social

work case manager observed the mother, who was pregnant at the time of the

relapse, had not used methamphetamine while pregnant in the past, so this new

pattern of use was concerning. The mother’s history showed her use of drugs

often lead to struggles with processing information and tracking with reality. And 9

although she had done well in residential drug treatment in early 2023 until her

release in May, in each of the other six times she had residential placements she

experienced the same pattern of doing well in the facility and relapsing upon

release. The social work case manager believed that the mother had not achieved

the long-term recovery necessary for J.H.’s safety and physical, mental, and

emotional health. Instead, the mother shared a home with the father, where

marijuana was also recently located and unclaimed. Although the mother has

made significant progress since her first involvement with the department many

years ago, we still find that termination is in J.H.’s best interests.

Returning to the permissive exception under section 232.116(3)(c), the

legislature allows the court to decline to terminate if it “would be detrimental to the

child at the time due to the closeness of the parent-child relationship.” A parent

resisting termination has the burden to prove this permissive exception by clear

and convincing evidence, and our case law recognizes that—without more—

neither a parent’s love nor the mere existence of a bond is enough to prevent

termination. See In re A.B., 956 N.W.2d 162, 169–70 (Iowa 2021). Rather, “our

consideration must center on whether the child will be disadvantaged by

termination, and whether the disadvantage overcomes [the mother’s] inability to

provide for [the child’s] developing needs.” D.W., 791 N.W.2d at 709. In addition,

turning back to the mother’s request for six additional months, after the termination

trial, the juvenile court may decide to not terminate parental rights if it finds there

is clear and convincing evidence that CINA proceedings should continue and

enters an order to extend the time for reunification in accordance with section

232.104(2)(b). Iowa Code § 232.117(5). The court may continue the proceedings 10

for an additional six months if it finds “the need for removal . . . will no longer exist

at the end of the additional six-month period.” Id. § 232.104(2)(b). It is up to the

parent to show “the impediments to placing” the child with them “will not exist in six

months.” In re W.T., 967 N.W.2d 315, 323 (Iowa 2021).

Here, we decline to apply the permissive exception to avoid termination of

the mother’s parental rights or to order an additional six months of time to work

towards reunification. The mother has not met her burden to prove that the

strength of her bond with J.H. overcomes the potential advantage of termination.

J.H. was sixteen months old at the time of the termination hearing and had been

removed from the mother’s care for the fourteen months prior to the hearing; she

had only been in the mother’s care for the first two months of her life. Initially after

her removal, J.H. had one supervised visit with the mother, and the mother did not

even recognize J.H. Yet, the connection improved given the mother’s renewed

interest. Still, regular visitation—including overnight—only began a few months

before the termination hearing with a gap of a few weeks after marijuana was found

in the home and the level of supervision fluctuated. The mother also recently used

methamphetamine—only a few weeks before the termination trial—and had not

demonstrated any significant period of sobriety. See In re C.B., 611 N.W.2d 489,

495 (Iowa 2000) (stating the parent “waited too long to respond [to services], and

the underlying problems which adversely affected her ability to effectively parent

were too serious to be overcome in the short period of time prior to the termination

hearing”). This relapse came after extended residential treatment. Thus, the

strength of any bond between J.H. and the mother does not outweigh the

advantage of termination for J.H., and the mother has failed to demonstrate that 11

the need for removal due to the mother’s methamphetamine use and safety issues

in the home would not exist after another extension and six additional months of

services.

Along with her other contentions, the mother also argues that the court

should have placed custody and care of J.H. with the father. The mother is not

allowed to raise arguments on the father’s behalf. See In re D.G., 704 N.W.2d

454, 460 (Iowa Ct. App. 2005) (holding one parent cannot argue facts or legal

positions pertaining to the other parent); see also In re K.R., 737 N.W.2d 321, 323

(Iowa Ct. App. 2007) (determining a father did not have standing to raise

arguments on the mother’s behalf in an effort to obtain a reversal of the termination

of his parental rights). Finding no reasons to reverse, we affirm the termination of

the mother’s parental rights.

B. Father’s Appeal.

1. Statutory Ground for Termination. The father contests whether the State

proved the statutory ground for termination under Iowa Code section 232.116(1)(h)

by clear and convincing evidence. See Iowa Code § 232.116(1)(h)(4) (“There is

clear and convincing evidence that the child cannot be returned to the custody of

the child’s parents as provided in section 232.102 at the present time.”); D.W., 791

N.W.2d at 707 (interpretating “at the present time” to mean at the time of the

termination hearing.). “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.” J.E., 723 N.W.2d at 798 (citation omitted).

Here, it is a closer question but in the end, we find that there was clear and

convincing evidence presented by the State that J.H. could not be returned to the 12

father’s custody at the time of the termination hearing. The father has never cared

for the child full-time and he was in jail because of criminal behavior associated

with his alcohol use for about four months during the child’s removal. Prior to his

incarceration in October 2022, the father had contact with the child at one

supervised visit and at the August 2022 adjudication hearing. Thus, for the first

eight months of the child’s life, the father only visited her once. After his release

from jail in February 2023, the father became more involved, but he was noted to

be consuming alcohol and marijuana despite having faced serious charges

because of excessive use of intoxicants.

Throughout the tenure of this case, the department requested that the father

engage in services to help with his care of J.H. which he refused, indicating he

knew how to be a father. After submitting to mental-health evaluations that

recommended therapy as beneficial, the father refused to participate even though

there were traumatic events in his past left unresolved. But, the father had

completed all court-ordered services before the termination hearing. Although he

completed another outpatient treatment course for substance use shortly before

the termination hearing, the father did not acknowledge his alcohol abuse problem

or have any strategies for maintaining his sobriety other than not going to bars.

The father testified he could simply stop drinking, was not an alcoholic, and the

criminal charges over the previous ten years involving his alcohol use were just

bad decisions. The social case worker testified to concerns over this lack of

recognition of a problem and the failure to address long-term recovery strategies

as the father told her he was not an alcoholic and should be able to drink because

it is legal. The father also admitted having a “drink of alcohol” on two different 13

occasions following his release from jail, and the “one drink” was half a pint of hard

liquor. And impacting his behavior during the months leading up to the termination

hearing, the father was monitored by “high risk probation” officers.

But alcohol was not the only substance use issue the father faced. In July,

just two months before the termination hearing, the father’s probation officer found

marijuana in the home. And although the father told the probation officer there

was marijuana in the box before it was opened, the father did not admit that the

marijuana was his and shifted blame for it being in the home to the mother, his

brother, and eventually to the carpenter. Even assuming that the father has been

sober since that date, short stints of sobriety are insufficient to establish a child

can be safely returned to the parent’s custody. See In re C.M., No. 18-0600, 2018

WL 3650355, at *2 (Iowa Ct. App. Aug. 1, 2018) (“The father’s failure to attain long-

lasting sobriety has a direct, negative impact on his ability to provide for this child’s

long-term growth and physical, mental, and emotional well-being.”). We also note

here that the marijuana was found during the time following the continuation of the

termination hearing, which was intended to give the father more time to achieve

sobriety. Lastly, the father did not accept responsibility for the marijuana being in

his home—even if not being his—nor recognize his history of alcohol-related

criminal charges and current charges leading to his probation. Thus, we find that

the State presented clear and convincing evidence that J.H. could not be returned

to the father’s custody at the time of the termination hearing.

IV. Conclusion.

Because we summarily affirm on the statutory ground not challenged by the

mother and decline to rely on the permissive exception to avoid termination or to 14

order an additional six months of time, we affirm the termination of the mother’s

parental rights. Because we find that the State proved that J.H. could not be safely

returned to the father’s custody at the time of the termination hearing, we also

affirm the termination of the father’s parental rights.

AFFIRMED ON BOTH APPEALS.