IN THE COURT OF APPEALS OF IOWA
No. 19-1359 Filed October 9, 2019
IN THE INTEREST OF Q.N., Minor Child,
B.K., Mother, Appellant,
J.N., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Marion County, Steven Guiter,
District Associate Judge.
Parents separately appeal the termination of their parental rights.
AFFIRMED ON BOTH APPEALS.
Bryan J. Tingle, Des Moines, for appellant mother.
Terzo R. Steves, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Anna T. Stoeffler (until withdrawal)
and Mary A. Triick, Assistant Attorneys General, for appellee State.
William E. Sales III of Sales Law Firm, P.C., Des Moines, attorney and
guardian ad litem for minor child.
Considered by Potterfield, P.J., Greer, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2
SCOTT, Senior Judge.
The child came to the attention of the Iowa Department of Human Services
(DHS) in early May 2018 when the child tested positive for methamphetamine and
amphetamines at birth. The mother has a long history of substance abuse,
criminal activity, and founded child-abuse assessments as to her other two
children, who are not in her care.1 The mother refused to cooperate with DHS. On
May 4, the juvenile court entered an order removing the child from the parents’
care and placing him in the legal custody of DHS.2 The child was placed with his
paternal grandmother a week later but was placed with his paternal aunt and uncle
in July because the grandmother could no longer care for the child.3 The child was
adjudicated a child in need of assistance.
The mother completed substance-abuse treatment in June but tested
positive for methamphetamine and amphetamines in July. The father tested
negative for drugs in July, but his continuing sobriety could not be verified because
he largely evaded or obstructed drug testing thereafter. The mother again tested
positive for the substances on two occasions in August and a third occasion in
September. The mother agreed to engage in substance-abuse treatment. She
again tested positive for illegal substances upon her entry into treatment in
October. The mother provided clean drug tests while in treatment. She was
released from treatment at the end of November.
1 The mother’s other two children were previously placed in a guardianship with their maternal grandfather and step-grandmother. 2 The parents and child could not be located at this time. They were ultimately located on May 9 in the home of a known drug user, whom the father had been living with for some time. 3 In its August dispositional order, the court placed the child in the legal custody of the paternal aunt and uncle. 3
The mother participated in aftercare and continued to provide negative
urinalysis screens. However, it was reported the mother was cleansing her system
prior to her aftercare appointments. In February 2019, the mother tested positive
for methamphetamine; the father tested positive for methamphetamine and
amphetamines. The mother discontinued attending her aftercare appointments
thereafter. The father declined to undergo a substance-abuse evaluation and
refused further drug testing. DHS requested the mother to return to treatment; she
responded “What’s the point?” The mother admitted in her testimony at the
termination hearing that she used methamphetamine again in March.
In April, the State petitioned for termination of both parents’ parental rights.
Following a termination hearing in June, the juvenile court terminated the parental
rights of both parents under Iowa Code section 232.116(1)(h) (2019). Both parents
appeal. They each challenge the sufficiency of the evidence supporting the
statutory ground for termination cited by the juvenile court, argue termination is not
in the best interests of the child due to the closeness of the parent-child bonds,
maintain the court should have applied the statutory exception to termination
contained in Iowa Code section 232.116(3)(a) and (c), and request a six-month
extension to work toward reunification.
Our review is de novo. In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our
primary consideration is the best interests of the child, In re J.E., 723 N.W.2d 793,
798 (Iowa 2006), the defining elements of which are the child’s safety and need
for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).
As to the statutory ground for termination cited by the juvenile court, the
parents only appear to challenge the State’s establishment of the final element— 4
that the children could not be returned to their care at the time of the termination
hearing. See Iowa Code § 232.116(1)(h)(4) (requiring clear and convincing
evidence that the child cannot be returned to the custody of the child’s parents at
the present time); In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the
statutory language “at the present time” to mean “at the time of the termination
hearing”). The mother unequivocally testified at the termination hearing the child
could not be returned to her care at that time. The evidence is clear and convincing
that both parents have unresolved substance-abuse issues and neither is willing
to commit to treatment to alleviate the same. A de novo review of the record
discloses that returning the child to the parents’ care at the present would expose
the child to a risk of adjudicatory harm. See In re R.R.K., 544 N.W.2d 274, 277
(Iowa Ct. App. 1995) (noting children cannot be returned to their parents’ care if
they would remain in need of assistance or would be at risk of adjudicatory harm),
overruled on other grounds by In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). We
conclude the state met its burden for termination under section 232.116(1)(h).
We turn to the child’s best interests. Each parent argues termination is
contrary to the best interests of the child, see Iowa Code § 232.116(2), due to the
closeness of the parent-child bond. See id. § 232.116(3)(c). We choose to
separately address the best-interests and statutory-exception issues. See In re
A.S., 906 N.W.2d 467, 472–73 (Iowa 2019) (discussing three-step termination
framework); In re A.R., 932 N.W.2d 588, 591 (Iowa Ct. App. 2019) (same).
In determining whether termination is in the best interests of a child, we
“give primary consideration to the child’s safety, to the best placement for
furthering the long-term nurturing and growth of the child, and to the physical, 5
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IN THE COURT OF APPEALS OF IOWA
No. 19-1359 Filed October 9, 2019
IN THE INTEREST OF Q.N., Minor Child,
B.K., Mother, Appellant,
J.N., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Marion County, Steven Guiter,
District Associate Judge.
Parents separately appeal the termination of their parental rights.
AFFIRMED ON BOTH APPEALS.
Bryan J. Tingle, Des Moines, for appellant mother.
Terzo R. Steves, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Anna T. Stoeffler (until withdrawal)
and Mary A. Triick, Assistant Attorneys General, for appellee State.
William E. Sales III of Sales Law Firm, P.C., Des Moines, attorney and
guardian ad litem for minor child.
Considered by Potterfield, P.J., Greer, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2
SCOTT, Senior Judge.
The child came to the attention of the Iowa Department of Human Services
(DHS) in early May 2018 when the child tested positive for methamphetamine and
amphetamines at birth. The mother has a long history of substance abuse,
criminal activity, and founded child-abuse assessments as to her other two
children, who are not in her care.1 The mother refused to cooperate with DHS. On
May 4, the juvenile court entered an order removing the child from the parents’
care and placing him in the legal custody of DHS.2 The child was placed with his
paternal grandmother a week later but was placed with his paternal aunt and uncle
in July because the grandmother could no longer care for the child.3 The child was
adjudicated a child in need of assistance.
The mother completed substance-abuse treatment in June but tested
positive for methamphetamine and amphetamines in July. The father tested
negative for drugs in July, but his continuing sobriety could not be verified because
he largely evaded or obstructed drug testing thereafter. The mother again tested
positive for the substances on two occasions in August and a third occasion in
September. The mother agreed to engage in substance-abuse treatment. She
again tested positive for illegal substances upon her entry into treatment in
October. The mother provided clean drug tests while in treatment. She was
released from treatment at the end of November.
1 The mother’s other two children were previously placed in a guardianship with their maternal grandfather and step-grandmother. 2 The parents and child could not be located at this time. They were ultimately located on May 9 in the home of a known drug user, whom the father had been living with for some time. 3 In its August dispositional order, the court placed the child in the legal custody of the paternal aunt and uncle. 3
The mother participated in aftercare and continued to provide negative
urinalysis screens. However, it was reported the mother was cleansing her system
prior to her aftercare appointments. In February 2019, the mother tested positive
for methamphetamine; the father tested positive for methamphetamine and
amphetamines. The mother discontinued attending her aftercare appointments
thereafter. The father declined to undergo a substance-abuse evaluation and
refused further drug testing. DHS requested the mother to return to treatment; she
responded “What’s the point?” The mother admitted in her testimony at the
termination hearing that she used methamphetamine again in March.
In April, the State petitioned for termination of both parents’ parental rights.
Following a termination hearing in June, the juvenile court terminated the parental
rights of both parents under Iowa Code section 232.116(1)(h) (2019). Both parents
appeal. They each challenge the sufficiency of the evidence supporting the
statutory ground for termination cited by the juvenile court, argue termination is not
in the best interests of the child due to the closeness of the parent-child bonds,
maintain the court should have applied the statutory exception to termination
contained in Iowa Code section 232.116(3)(a) and (c), and request a six-month
extension to work toward reunification.
Our review is de novo. In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our
primary consideration is the best interests of the child, In re J.E., 723 N.W.2d 793,
798 (Iowa 2006), the defining elements of which are the child’s safety and need
for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).
As to the statutory ground for termination cited by the juvenile court, the
parents only appear to challenge the State’s establishment of the final element— 4
that the children could not be returned to their care at the time of the termination
hearing. See Iowa Code § 232.116(1)(h)(4) (requiring clear and convincing
evidence that the child cannot be returned to the custody of the child’s parents at
the present time); In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the
statutory language “at the present time” to mean “at the time of the termination
hearing”). The mother unequivocally testified at the termination hearing the child
could not be returned to her care at that time. The evidence is clear and convincing
that both parents have unresolved substance-abuse issues and neither is willing
to commit to treatment to alleviate the same. A de novo review of the record
discloses that returning the child to the parents’ care at the present would expose
the child to a risk of adjudicatory harm. See In re R.R.K., 544 N.W.2d 274, 277
(Iowa Ct. App. 1995) (noting children cannot be returned to their parents’ care if
they would remain in need of assistance or would be at risk of adjudicatory harm),
overruled on other grounds by In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). We
conclude the state met its burden for termination under section 232.116(1)(h).
We turn to the child’s best interests. Each parent argues termination is
contrary to the best interests of the child, see Iowa Code § 232.116(2), due to the
closeness of the parent-child bond. See id. § 232.116(3)(c). We choose to
separately address the best-interests and statutory-exception issues. See In re
A.S., 906 N.W.2d 467, 472–73 (Iowa 2019) (discussing three-step termination
framework); In re A.R., 932 N.W.2d 588, 591 (Iowa Ct. App. 2019) (same).
In determining whether termination is in the best interests of a child, we
“give primary consideration to the child’s safety, to the best placement for
furthering the long-term nurturing and growth of the child, and to the physical, 5
mental, and emotional condition and needs of the child.” Iowa Code § 232.116(2).
The child has been out of the parents’ care his entire life, more than a year at the
time of the termination hearing. The parents have simply failed to progress to a
point where this child can be returned to the care of either or both of them. “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 . . . be able to provide a stable home for the child.” In re A.B., 815
N.W.2d 764, 777 (Iowa 2012) (quoting P.L., 778 N.W.2d at 39). We conclude
these parents have been given enough time to get their affairs in order and this
child’s best interests are best served by providing permanency and stability now.
See id. at 778 (“It is simply not in the best interests of children to continue to keep
them in temporary foster homes while the natural parents get their lives together.”
(quoting In re C.K., 558 N.W.2d 170, 175 (Iowa 1997))). The child is in a relative
placement that is willing and has been approved to adopt. The child is integrated
into this familial setting and is thriving. Continued stability and permanency in this
home are in this child’s best interests. See Iowa Code § 232.116(2)(b); cf. In re
M.W., 876 N.W.2d 212, 224–25 (2016) (concluding termination was in best
interests of children where children were well-adjusted to placement, the
placement parents were “able to provide for their physical, emotional, and financial
needs,” and they were prepared to adopt the children).
Next, the parents argue for the application of the statutory exceptions to
termination contained in Iowa Code section 232.116(3)(a) and (c). The application
of the statutory exceptions to termination is “permissive, not mandatory.” M.W.,
876 N.W.2d at 225 (quoting In re A.M., 843 N.W.2d 100, 113 (Iowa 2014)). As to 6
the latter provision, we find the parents failed to meet their evidentiary burden to
show “termination would be detrimental to the child . . . due to the closeness of the
parent-child relationship.” See A.S., 906 N.W.2d at 476 (noting the parent bears
the burden to establish an exception to termination). As to both exceptions, we
conclude their application would be contrary to the child’s best interests, which is
our principal concern. See J.E., 723 N.W.2d at 798.
We turn to the parents’ request for a six-month extension. If, following a
termination hearing, the court does not terminate parental rights but finds there is
clear and convincing evidence that the child is a child in need of assistance, the
court may enter an order in accordance with section 232.104(2)(b). Iowa Code
§ 232.117(5). Section 232.104(2)(b) affords the juvenile court the option to
continue placement of a child for an additional six months if the court finds “the
need for removal . . . will no longer exist at the end of the additional six-month
period.” The juvenile court was unable to make such a finding. Upon our de novo
review of the record, and given these parents’ past performance, neither are we.
Consequently, we affirm the termination of both parents’ parental rights.