In the Interest of P.H., Minor Child

• Court: Court of Appeals of Iowa
• Decided: November 6, 2019
• Docket: 19-1115
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-1115 Filed November 6, 2019

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

T.H., Father, Appellant,

S.H., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Chickasaw County, Linnea M.N.

Nicol, District Associate Judge.

A mother and father both appeal the termination of their parental rights to

their one-year-old daughter. AFFIRMED ON BOTH APPEALS.

Ann M. Troge, Charles City, for appellant father.

Becky Wilson of Elwood, O’Donohoe, Braun, White, LLP, Charles City, for

appellant mother.

Thomas J. Miller, Attorney General, and Anna T. Stoeffler (until withdrawal)

and Mary A. Triick, Assistant Attorneys General, for appellee State.

Andrew Thalacker of the Juvenile Public Defender Office, Waterloo,

guardian ad litem for minor child.

Considered by Tabor, P.J., and Mullins and May, JJ. 2

TABOR, Presiding Judge.

This appeal arises from the termination of parental rights of Samantha and

Travis to their one-year-old daughter, P.H. Each parent appeals separately.

Samantha contends the State did not prove the statutory grounds for termination.

Additionally she contends the court erred in finding an additional period of

rehabilitation would not remedy the situation. Travis appeals on similar grounds.

The juvenile court found P.H. could not be returned to her parents now or in the

foreseeable future and their rights should be terminated. After reviewing the record

and legal arguments presented,1 we reach the same result as the juvenile court.

I. Facts and Prior Proceedings

P.H. was born in May 2018. Her family came to the attention of the Iowa

Department of Human Services (DHS) in December 2017 when Samantha was

pregnant with P.H. Because Samantha tested positive for methamphetamine

during her pregnancy and Travis was uncooperative, the court granted the DHS’s

request for a temporary removal of P.H. following her birth. The DHS returned the

child to her parents in mid-June 2018. But the next month, the DHS requested the

temporary removal of P.H. again after both parents missed multiple drug

screenings. Travis tested positive during a screening, and Samantha provided a

contaminated test. In late July, the DHS placed P.H. with Samantha’s sister and

1 We review termination-of-parental-rights cases de novo. In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). While not bound by the juvenile court’s fact findings, we give them weight, particularly on credibility issues. Id. The State must present clear and convincing evidence to support the termination. In re A.M., 843 N.W.2d 100, 110–11 (Iowa 2014). Evidence satisfies that standard if no serious or significant doubts exist about the correctness of conclusions of law drawn from the proof. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The child’s best interests remain our primary concern. In re L.T., 924 N.W.2d 521, 529 (Iowa 2019). 3

her husband.2 Samantha and Travis maintained contact with P.H. through

supervised visits.

In mid-August 2018 the court adjudicated P.H. as a child in need of

assistance (CINA), as defined in Iowa Code section 232.2(6)(c)(2) (2018), because

both parents tested positive for methamphetamine and Travis had been violent

toward Samantha.

In early October 2018, the court adopted a permanency plan listing changes

that Samantha and Travis had to make for P.H. to return to their custody safely.

The plan directed Samantha to participate in a substance-abuse evaluation and

follow through with the recommendations, individual therapy, medication

management, and random drug testing. The plan also required Samantha to meet

with the DHS worker monthly; meet with the family safety, risk, and permanency

(FSRP) provider weekly; follow recommendations of the child’s early access

evaluation; attend and participate in visitation; and maintain safe and stable

housing. The plan included the same requirements for Travis—minus individual

therapy and medication management. Also if the couple planned to remain

together they needed to participate in couples counseling and address their

domestic-violence issue.

Neither parent followed through with the plan. They attended only four of

thirteen requested drug tests. One time Samantha went to the testing facility but

she refused to submit to testing when the monitor requested a hair sample. The

2 This maternal aunt and uncle adopted Samantha’s previous child with Travis after the court terminated their legal rights. 4

parents also failed to address the issue of Travis’s violence toward Samantha. And

they were inconsistent in their visitations.

The State filed a petition to terminate parental rights in January 2019. The

court held a hearing in May and issued its order terminating rights in June 2019.

The order relied on Iowa Code section 232.116(1)(g) and (h) (2019) for both

Samantha and Travis. The parents challenge that order in separate petitions on

appeal.

II. Analysis

The termination of parental rights follows three steps. In re D.W., 791

N.W.2d 703, 706–07 (Iowa 2010). First, we must decide if the evidence satisfies

a ground for termination asserted under section 232.116(1). Id. If so we then

apply the best-interests framework of section 232.116(2). Id. at 707. If termination

is in the child’s best interests, then we consider whether any factor in section

232.116(3) should preclude termination. Id.

Statutory Ground for Termination

Both parents argue the State failed to prove by clear and convincing

evidence that their rights should be terminated under paragraphs (g) and (h). On

appeal we only need to find sufficient evidence of one of the grounds to affirm the

ruling. See In re J.B.L., 844 N.W.2d 703, 704 (Iowa Ct. App. 2014). Here, we

focus our analysis on paragraph (h).

Section 232.116(1)(h) permits the court to terminate parental rights when:

(1) The child is three years of age or younger; (2) the child has been adjudicated

a CINA under section 232.96; (3) the child has been removed from the physical

custody of the parents for at least six months of the past twelve months, or for the 5

last six consecutive months and any trial period at the home was less than thirty

days; and (4) there is clear and convincing evidence that the child cannot be

returned to the parents as provided in section 232.102 at the present time.

The first three elements are uncontested. P.H. was one year old,

adjudicated as a CINA in August 2018, and living with her maternal aunt for at least

six months.

i. Samantha’s rights

Samantha argues the State failed to prove by clear and convincing

evidence that she lacks the ability or willingness to respond to services that would

remedy the situation and that P.H. could not be returned to her within a reasonable

time. That argument appears to address paragraph (g).3

Samantha does not address the fourth element of subsection (h), that the

child cannot be returned “at the present time.” See A.M., 843 N.W.2d at 111

(interpreting statutory language “at the present time” as the time of the termination

hearing). Even if Samantha had contested this element, the record supports the

juvenile court’s decision that P.H. could not be safely returned to her mother’s care.

3 The court finds that all of the following have occurred: (1) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (2) The court has terminated parental rights pursuant to section 232.117 with respect to another child who is a member of the same family or a court of competent jurisdiction in another state has entered an order involuntarily terminating parental rights with respect to another child who is a member of the same family. (3) There is clear and convincing evidence that the parent continues to lack the ability or willingness to respond to services which would correct the situation. (4) There is clear and convincing evidence that an additional period of rehabilitation would not correct the situation. Iowa Code § 232.116(1)(g). 6

Samantha failed to show up for many drug tests, missed visits with P.H., and

overall failed to comply with the permanency plan.

We recognize Samantha has demonstrated some good parenting skills and

has made an effort to access certain services she needs. But P.H. is still very

young and cannot protect herself in a risky situation. And the record reveals

persistent problems surrounding Samantha’s drug use, her fraught relationship

with Travis, her financial instability, and housing. Because Samantha has not

adequately addressed these problems, we find termination of parental rights is

proper under section 232.116(1)(h). See In re Dameron, 306 N.W.2d 743, 755

(Iowa 1981) (finding insights into what the future holds if a child is returned from

evidence of the parent’s past performance).

ii. Travis’s rights

Travis also argues the State has not provided clear and convincing

evidence that P.H. could not be returned to him in a reasonable time. He contends

he is sober and has attended “multiple counseling sessions as directed by the

court.” Like Samantha, Travis fails to argue P.H. could be returned to his care at

the “present time.”

We agree with the juvenile court’s decision to terminate Travis’s rights under

paragraph (h). Travis failed to appear for many drug tests ordered as part of the

permanency plan, and he tested positive for methamphetamines at least once.4

Travis has shown hostility toward DHS workers and others. See In re M.B., 595

4 Travis maintains the DHS tampered with test results and argues he has tested “clean” through a different service. The record does not support his claim that DHS tampered with the test results. 7

N.W.2d 815, (Iowa Ct. App. 1999) (finding threatening behavior towards social

workers as equivalent to rejecting services). In the same vein, Travis did not take

any action to address his abuse toward Samantha. In fact, he denied any domestic

violence in the relationship. And he was inconsistent with visitations with P.H. On

this record, P.H. could not have been safely returned to his care at the time of the

termination hearing.

B. Best Interests of the Child

Both parents argue it is not in P.H.’s best interests to have their rights

terminated. See Iowa Code § 232.116(2) (requiring courts to give primary

consideration to the child’s safety; to the best placement to further her long-term

nurturing and growth; and to her physical, mental, and emotional needs). Both

parents claim P.H. has a strong bond with them and that they have exhibited good

parenting skills.

The record does show glimpses of good parenting skills, such as concern

for the child’s safety while in a car seat and attention to her various health

concerns. But after reviewing the record as a whole, we conclude termination of

parental rights will best advance the child’s safety and long-term well-being. While

we recognize the love and bond the parents have with their child, the substance-

abuse issues and relationship instability render the parents unable to care for her.

See In re J.K., 495 N.W.2d 108, 113 (Iowa 1993).

P.H. is currently living with her maternal aunt who has already adopted

P.H.’s biological sibling. See In re of A.M.S., 419 N.W.2d 723, 734 (Iowa 1988)

(extolling preference for keeping siblings together). 8

C. Additional Time for Reunification

Finally, both parents argue the juvenile court erred in denying them an

additional six months to reunify under section 232.104(2)(b). Under that section,

the court can only delay permanency if it can “enumerate the specific factors,

conditions, or expected behavioral changes which comprise the basis for the

determination that the need for removal of the child from the child’s home will no

longer exist at the end of the additional six-month period.” A parent’s past

performance gives insight into the future care they may provide. In re R.K.B., 572

N.W.2d 600, 601 (Iowa 1998).

Here, the parents insist they have been pursuing different therapy and

treatment options. But we are mindful of their failure to follow the previous

reunification plan. Both Samantha and Travis have had their relationships with

other children terminated under previous juvenile proceedings. And their

continuing substance abuse indicates an additional six months will not be sufficient

to gain the stability necessary to resume custody of P.H. A child should not have

to wait in the limbo of foster care because of a parent’s inability to provide a safe

and drug-free home. In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). We agree with

the district’s decision denying additional time.

AFFIRMED ON BOTH APPEALS.