IN THE COURT OF APPEALS OF IOWA
No. 20-0995 Filed October 7, 2020
IN THE INTEREST OF O.P., Minor Child,
R.P., Father, Appellant,
J.V., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,
District Associate Judge.
The mother and father separately appeal the termination of their respective
parental rights to their child. AFFIRMED ON BOTH APPEALS.
Blake D. Lubinus of Lubinus & Merrill, P.L.C. (until withdrawal), Des Moines,
and Marshall Orsini, Des Moines for appellant father.
Cole J. Mayer of Macro & Kozlowski, L.L.P., West Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant
Attorney General, for appellee State.
Paul White of the Juvenile Public Defender’s Office, Des Moines, attorney,
and guardian ad litem for minor child.
Considered by Doyle, P.J., and Mullins and Greer, JJ. 2
GREER, Judge.
The mother and father separately appeal the termination of their respective
parental rights to their child, O.P., born in July 2017. The juvenile court terminated
each parent’s rights under Iowa Code section 232.116(1)(h) (2020). On appeal,
the mother maintains the State failed to prove the statutory ground for termination,
the loss of her rights is not in the child’s best interests, and two exceptions to
termination are applicable and should preclude termination. Alternatively, she
asks for a six-month extension to work on reunification. The father echoes the
mother’s claims and also challenges the court’s March 2020 permanency order,
claiming the court should have delayed permanency and given him a six-month
extension rather than ordering the termination-of-parental-rights petition to be filed.
Our review of termination proceedings is de novo. In re D.G., 704 N.W.2d
454, 457 (Iowa Ct. App. 2005). And our primary concern is the best interests of
the child at issue. Id. Here we combine our analysis where the parents raise the
same or similar claims, but we make our determination about each parent
separately. Id. at 459 (“[I]n termination of parental rights proceedings each
parent’s parental rights are separate adjudications, both factually and legally.”)
Each parent claims the State did not prove termination under section
232.116(1)(h). They concede the first three elements are met but challenge the
fourth, which requires proof the child could not be returned to parental custody at
the time of the termination hearing in July 2020. See Iowa Code § 232.116(1)(h)(4)
(requiring “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”); 3
In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the term “at the present
time” to mean “at the time of the termination hearing”).
Each parent contests the court’s finding that their continued use of
methamphetamine prevented O.P. from being safely returned to their care. The
mother focuses her argument on the fact that she has been consistently involved
in substance-abuse treatment. She argues that if she needed more or different
treatment, it was up to the Iowa Department of Human Services (DHS) or the court
to tell her so before the termination hearing. The father claims that his use of
methamphetamine alone is not enough to show the child could not be safely
returned to his care; he argues there must be a nexus shown between his
continued substance abuse and threat of harm to the child. We are not persuaded
by either of these arguments.
Both parents have a long history of methamphetamine use. The mother,
who was thirty-four years old at the time of the termination hearing, testified she
first used methamphetamine at age nineteen and then began using about monthly
after that. She described her past use as a “recreational, every now and then
thing” at parties. But from age twenty-seven to thirty, she used “once a week.”
Since she met the father around age thirty, she testified they used “very minimal,”
“maybe once a month.” The mother maintained she did not have a substance-
abuse problem, but she continued to test positive for methamphetamine despite
DHS involvement with her family. The mother was also aware she needed to
maintain sobriety so O.P. could be returned to her care. The father, who was forty-
one at the time of the termination hearing, testified he also first tried
methamphetamine in his late teens. He continued to use until age twenty-seven, 4
when his mother died from a methamphetamine overdose. After that, he stopped
using methamphetamine for several years. He admitted he and the mother have
been using together “once, twice a month maybe” since he met her at age thirty-
eight. The father minimized the significance of their decision to continue using
methamphetamine after the birth of their child, testifying, “I mean, it really wasn’t
like we were looking for it every day. We weren’t selling pictures off the wall, selling
TVs or robbing little old ladies at ATMs get a fix.”
The mother’s ongoing participation in substance-abuse counseling, while a
positive thing, is not sufficient to establish that she can safely care for O.P. We
acknowledge the counselor seems encouraged by the mother’s progress, but the
counselor does not independently drug test the mother and relies on the mother’s
self-reports about her sobriety. The mother continues to report to the counselor
(and testified at the termination hearing) that after she completed an extended
outpatient substance-abuse program in August 2019, she used methamphetamine
only once—when she relapsed in October 2019. Yet, she has several drug tests
positive for methamphetamine after her treatment program—testing positive in
October and December 2019 and January and March 2020. The mother’s general
denials of ongoing use of methamphetamine lack credibility, and O.P. could not be
safely returned to her care. See In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App.
2016) (noting a child cannot be returned to the custody of the parent if doing so
would expose the child to any harm amounting to a new child-in-need-of-
assistance adjudication).
The father argues that his continuing use of methamphetamine does not
mean O.P. cannot be returned to his care. The father cites M.S. in support of his 5
claim. 889 N.W.2d at 682. But that case required the State to establish a nexus
between the parent’s use of cannabis and an appreciable risk of adjudicatory harm.
Id. Our case law distinguishes between use of cannabis and addictions to
methamphetamine. See, e.g., In re J.S., 846 N.W.2d 36, 42 (Iowa 2014) (“[A]
juvenile court could reasonably determine that a parent’s active addiction to
methamphetamine is ‘imminently likely’ to result in harmful effects to the physical,
mental, or social wellbeing of the child[] in the parent’s care.”). And here, the case
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IN THE COURT OF APPEALS OF IOWA
No. 20-0995 Filed October 7, 2020
IN THE INTEREST OF O.P., Minor Child,
R.P., Father, Appellant,
J.V., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,
District Associate Judge.
The mother and father separately appeal the termination of their respective
parental rights to their child. AFFIRMED ON BOTH APPEALS.
Blake D. Lubinus of Lubinus & Merrill, P.L.C. (until withdrawal), Des Moines,
and Marshall Orsini, Des Moines for appellant father.
Cole J. Mayer of Macro & Kozlowski, L.L.P., West Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant
Attorney General, for appellee State.
Paul White of the Juvenile Public Defender’s Office, Des Moines, attorney,
and guardian ad litem for minor child.
Considered by Doyle, P.J., and Mullins and Greer, JJ. 2
GREER, Judge.
The mother and father separately appeal the termination of their respective
parental rights to their child, O.P., born in July 2017. The juvenile court terminated
each parent’s rights under Iowa Code section 232.116(1)(h) (2020). On appeal,
the mother maintains the State failed to prove the statutory ground for termination,
the loss of her rights is not in the child’s best interests, and two exceptions to
termination are applicable and should preclude termination. Alternatively, she
asks for a six-month extension to work on reunification. The father echoes the
mother’s claims and also challenges the court’s March 2020 permanency order,
claiming the court should have delayed permanency and given him a six-month
extension rather than ordering the termination-of-parental-rights petition to be filed.
Our review of termination proceedings is de novo. In re D.G., 704 N.W.2d
454, 457 (Iowa Ct. App. 2005). And our primary concern is the best interests of
the child at issue. Id. Here we combine our analysis where the parents raise the
same or similar claims, but we make our determination about each parent
separately. Id. at 459 (“[I]n termination of parental rights proceedings each
parent’s parental rights are separate adjudications, both factually and legally.”)
Each parent claims the State did not prove termination under section
232.116(1)(h). They concede the first three elements are met but challenge the
fourth, which requires proof the child could not be returned to parental custody at
the time of the termination hearing in July 2020. See Iowa Code § 232.116(1)(h)(4)
(requiring “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”); 3
In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the term “at the present
time” to mean “at the time of the termination hearing”).
Each parent contests the court’s finding that their continued use of
methamphetamine prevented O.P. from being safely returned to their care. The
mother focuses her argument on the fact that she has been consistently involved
in substance-abuse treatment. She argues that if she needed more or different
treatment, it was up to the Iowa Department of Human Services (DHS) or the court
to tell her so before the termination hearing. The father claims that his use of
methamphetamine alone is not enough to show the child could not be safely
returned to his care; he argues there must be a nexus shown between his
continued substance abuse and threat of harm to the child. We are not persuaded
by either of these arguments.
Both parents have a long history of methamphetamine use. The mother,
who was thirty-four years old at the time of the termination hearing, testified she
first used methamphetamine at age nineteen and then began using about monthly
after that. She described her past use as a “recreational, every now and then
thing” at parties. But from age twenty-seven to thirty, she used “once a week.”
Since she met the father around age thirty, she testified they used “very minimal,”
“maybe once a month.” The mother maintained she did not have a substance-
abuse problem, but she continued to test positive for methamphetamine despite
DHS involvement with her family. The mother was also aware she needed to
maintain sobriety so O.P. could be returned to her care. The father, who was forty-
one at the time of the termination hearing, testified he also first tried
methamphetamine in his late teens. He continued to use until age twenty-seven, 4
when his mother died from a methamphetamine overdose. After that, he stopped
using methamphetamine for several years. He admitted he and the mother have
been using together “once, twice a month maybe” since he met her at age thirty-
eight. The father minimized the significance of their decision to continue using
methamphetamine after the birth of their child, testifying, “I mean, it really wasn’t
like we were looking for it every day. We weren’t selling pictures off the wall, selling
TVs or robbing little old ladies at ATMs get a fix.”
The mother’s ongoing participation in substance-abuse counseling, while a
positive thing, is not sufficient to establish that she can safely care for O.P. We
acknowledge the counselor seems encouraged by the mother’s progress, but the
counselor does not independently drug test the mother and relies on the mother’s
self-reports about her sobriety. The mother continues to report to the counselor
(and testified at the termination hearing) that after she completed an extended
outpatient substance-abuse program in August 2019, she used methamphetamine
only once—when she relapsed in October 2019. Yet, she has several drug tests
positive for methamphetamine after her treatment program—testing positive in
October and December 2019 and January and March 2020. The mother’s general
denials of ongoing use of methamphetamine lack credibility, and O.P. could not be
safely returned to her care. See In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App.
2016) (noting a child cannot be returned to the custody of the parent if doing so
would expose the child to any harm amounting to a new child-in-need-of-
assistance adjudication).
The father argues that his continuing use of methamphetamine does not
mean O.P. cannot be returned to his care. The father cites M.S. in support of his 5
claim. 889 N.W.2d at 682. But that case required the State to establish a nexus
between the parent’s use of cannabis and an appreciable risk of adjudicatory harm.
Id. Our case law distinguishes between use of cannabis and addictions to
methamphetamine. See, e.g., In re J.S., 846 N.W.2d 36, 42 (Iowa 2014) (“[A]
juvenile court could reasonably determine that a parent’s active addiction to
methamphetamine is ‘imminently likely’ to result in harmful effects to the physical,
mental, or social wellbeing of the child[] in the parent’s care.”). And here, the case
began with a founded child abuse report as to both parents after it was determined
they were using methamphetamine in their home where O.P. resides. The father’s
continued use of methamphetamine and his failure to engage in substance-abuse
treatment means O.P. cannot be safely returned to his care.
Second, each parent argues loss of their rights is not in O.P.’s best
interests. See Iowa Code § 232.116(2). Each focuses on their strong relationship
with O.P. and the parenting skills they exhibited during supervised visits. DHS had
no concerns with the parents’ ability to care for and supervise O.P. while sober.
And the parents’ visits with O.P. went well; they had activities planned and played
together as a family. This was recognized as a strength of the family’s in family
safety, risk, and permanency reports. But O.P. had been out of his parents’ care
approximately fifteen months at the time of the termination hearing, and the
parents continued to test positive for methamphetamine and downplay the harm
their ongoing use played on themselves and their family.1 Considering both O.P.’s
1 DHS became involved with this family this time after the mother experienced cardiac arrest at her workplace—a daycare center—following a weekend where she and the father used methamphetamine multiple times. The mother had to have a defibrillator implanted, and she testified her doctor told her “[a]ny kind of 6
long-term and immediate needs, permanency is in O.P.’s best interests, and the
parents are unable to provide that stability. See In re J.E., 723 N.W.2d 793, 801
(Iowa 2006) (Cady, J., concurring specially) (“A child’s safety and the need for a
permanent home are now the primary concerns when determining a child’s best
interests.”); see also In re P.L., 778 N.W.2d 33, 41 (Iowa 2010) (concluding
termination was appropriate under the best-interests analysis because “we cannot
deprive a child of permanency after the State has proved a [statutory] ground for
termination”).
Third, both parents argue the juvenile court should have applied the
exceptions to termination in Iowa Code section 232.116(3)(a) or (c) to save the
parent-child relationships. The court may avoid termination if a relative has legal
custody of the child, see Iowa Code § 232.116(3)(a), or if termination would be
detrimental to the child because of the closeness of the parent-child relationship.
See id. § 232.116(3)(c). After considering the “unique circumstances of [this] case
and the best interests of” O.P., the juvenile court declined to apply an exception to
save the parent-child relationships here. In re A.M., 843 N.W.2d 100, 113 (Iowa
2014) (citation omitted). We agree that the parents have not proved an exception
should be applied in this case.
Next, the mother argues she should be given a six-month extension to work
on reunification. See Iowa Code §§ 232.104(2)(b), .117(5). But we cannot say
more time would allow the mother to resume caring for O.P. We do not believe
the mother’s claims that all but one of her positive drug tests are inaccurate. If the
smoking, cigarettes, marijuana, alcohol, is bad for my heart nowadays” though she continued to test positive for THC and admitted consuming alcohol. 7
mother cannot be honest with herself and her substance-abuse counselor about
her use, she cannot get the help she needs to achieve sobriety. As the juvenile
court found:
Neither parent has honestly addressed their substance abuse nor mental health issues and both continue to use illegal substance and alcohol to this date. The parents show no insight into how their substance abuse has negatively affected their ability to parent [O.P.] They characterize their use as “recreational,” yet neither can stop using despite the impact on [the mother’s] own health, or the impact on their ability to regain custody of [O.P.].
Finally, the father challenges the juvenile court’s permanency order. He
challenges the court’s instruction to the State to file a petition to terminate the
father’s rights. He contends that the court should have returned O.P. to his care
or, alternatively, given him a six-month extension because he was making
“reasonable progress” with the case plan. See id. § 232.104(1)(c). But the father
was not making reasonable progress, and O.P. could not then be returned to his
care. As of the March 31, 2020 permanency hearing, the father had just tested
positive for methamphetamine again a few days earlier. He was not in substance-
abuse treatment or mental-health treatment. And while the court did include in its
order that the State should file the petition to terminate, the State had already done
so a few days before the permanency hearing—following both parents’ positive
drug tests for methamphetamine. We find no error in the juvenile court’s
permanency order.
We affirm the termination of each parent’s rights to O.P.
AFFIRMED ON BOTH APPEALS.