In the Interest of P.S., Minor Child, P.S., Father

• Court: Court of Appeals of Iowa
• Decided: November 12, 2015
• Docket: 15-1476
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-1476 Filed November 12, 2015

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

P.S., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Daniel L.

Block, Associate Juvenile Judge.

A father appeals from the order terminating his parental rights.

AFFIRMED.

Linda A. Hall of Linda Hall Law Firm, P.L.L.C., Cedar Falls, for appellant

father.

Andrew Abbott of Abbott Law Office, P.C., Waterloo, for mother.

Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant

Attorney General, for appellee State.

Melissa Anderson-Seeber of the Juvenile Public Defender’s Office,

Waterloo, for minor child.

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

DANILSON, Chief Judge.

A father appeals the termination of his parental rights.1 He contends no

statutory grounds for termination exist. In the alternative, the father argues he

should have been granted an additional six months to seek reunification. He also

contends termination need not occur because the child is placed with a relative.

We review termination proceedings de novo. In re A.M., 843 N.W.2d 100,

110 (Iowa 2014). P.S. was born in April 2013. This family came to the attention

of the department of human services (DHS) in July 2014 due to concerns of

parental drug use and domestic violence. In August 2014, the child was

voluntarily placed with the paternal grandparents. On November 21, 2014, the

child was adjudicated a child in need of assistance (CINA) and was placed in the

custody with DHS.2 The adjudication order noted the father had a lengthy history

of substance abuse (he reported first using marijuana at age nine and

methamphetamine at age thirteen). He had previously participated in inpatient

and outpatient substance abuse programming. The father was ordered to

complete substance abuse and mental health evaluations, follow any

recommended treatment, and comply with random drug testing.

The father was jailed in September 2014 and charged with failure to

appear, eight forgery charges, theft in the second degree, and possession of

drug paraphernalia. He reported at a December family team meeting that he was

hoping to be accepted into drug court—he was not. On February 6, 2015, the

father was sent to the Iowa Medical Classification Center. On April 7, 2015, the

1 The mother’s parental rights were also terminated. She does not appeal. 2 On appeal, the father claims there has been no “removal” from his custody because the child was voluntarily placed with the grandparents. 3

father participated in a dispositional review hearing by telephone, and in the

dispositional review order, the court noted the father was in prison and would be

unavailable for “the next several months, at least.” A permanency order was

entered on May 19, 2015. The father was still in prison and unavailable to parent

the child.

A petition to terminate parental rights was filed June 16, 2015. At the

August 6, 2015 termination hearing, the father testified he hoped to be paroled in

the near future, had completed a substance abuse evaluation and a mental

health evaluation while incarcerated, and was involved with substance abuse

programming (AA) in the institution. He stated he would participate in court-

ordered services upon his release and requested additional time to seek

reunification.

On August 19, 2015, the juvenile court entered an order terminating the

father’s parental rights pursuant to Iowa Code section 232.116(1)(e), (h), and (l)

(2015). The court rejected the father’s request for additional time, finding:

[The father] has been using illegal substances since he was nine years of age. [He] has had the opportunity to participate in numerous substance abuse treatment programs and make the changes in his life that would allow him to be a parent for his child. [The father] has chosen to not make the changes required. [He] remains incarcerated and unavailable to his child. [The father] believes he will be eligible for parole in October, 2015, however, this remains uncertain. Case history records are entitled to much probative force when a parent’s record is being examined. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). [The father]’s history is not supportive of his assertions. . . . [The father]’s request that the court defer permanency an additional six months pursuant to Iowa Code section 232.104(2)(b), so he can have additional time to make the changes to have the child returned to his care is clearly not in the child’s best interests. Further, based upon the father’s history of substance abuse, history of unavailability and instability and services offered through the 4

Department of Human Services, the court finds that it would be extremely unlikely that the child could be returned to the care of [the father] in six months.

The juvenile court found the child was doing well and was integrated into

the home of the grandparents, who expressed a desire to adopt the child. The

court concluded termination and adoption would best ensure the child’s safety

and long-term nurturing and growth needs. The father appeals.

When the juvenile court terminates parental rights on more than one

statutory ground, we may affirm the order on any ground we find supported in the

record. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). Iowa Code section

232.116(1)(h) provides termination may be ordered when the child is three years

of age or younger, has been adjudicated a CINA, has been removed from the

physical custody of the parent for at least six of the last twelve months, and

cannot be returned to the parent’s custody at the time of the termination hearing.

The father contends because the child was voluntarily placed with the

grandparents, the child has not been “removed” from custody. This is not

correct. The adjudication order removed the child from the parents’ custody and

placed her in the custody of DHS. Section 232.116(1)(h) has been proved.

The father argues he is participating in substance abuse programming and

should be allowed an additional six months. In order to continue placement for

an additional six months, Iowa Code section 232.104(2)(b) requires the juvenile

court be able to make a determination the need for removal will no longer exist at

the end of the extension. We agree with the juvenile court that in light of the

father’s long history of substance use and previous treatment history, his ability

to remain substance free in a controlled environment does not translate into 5

confidence that he can do so upon his release. Moreover, once DHS became

involved, the father did not participate in services or exercise visitation that may

have permitted a flicker of hope. We are not convinced an extension of time

would result in the child being able to be returned to the father’s care within six

months. See In re J.B.L., 844 N.W.2d 703, 706 (Iowa Ct. App. 2014) (“[T]he

court may continue placement of the child for an additional six months if the need

for removal will no longer exist at the end of this period.”).

Finally, the father contends termination may be avoided because the child

is placed with relatives. However, Iowa Code section 232.116(3)(a) allows a

court to defer termination if a child is placed in the legal custody of a relative.

See A.M., 843 N.W.2d at 113. The child is in the legal custody of DHS, and thus

section 232.116(3)(a) is not applicable. The child has become integrated into the

grandparents’ home, and they desire to adopt the child. We affirm the

termination of the father’s parental rights.