In the Interest of S.H., Minor Child

• Court: Court of Appeals of Iowa
• Decided: November 8, 2023
• Docket: 23-1337
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1337 Filed November 8, 2023

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

D.S., Mother, Appellant,

T.H., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Linn County, Carrie J. Bryner, District

Associate Judge.

A mother and father separately appeal the termination of their parental

rights. AFFIRMED ON BOTH APPEALS.

Annette F. Martin, Cedar Rapids, for appellant mother.

Michael M. Lindeman of Lindeman Law, Cedar Rapids, for appellant father.

Brenna Bird, Attorney General, and Natalie Jean Hedberg, Assistant

Attorney General, for appellee State.

Julie Gunderson Trachta of Linn County Advocate, Cedar Rapids, attorney

and guardian ad litem for minor child.

Considered by Badding, P.J., Buller, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023). 2

BLANE, Senior Judge.

The parents of S.H. separately appeal the termination of their parental

rights. They contend that the State failed to prove the statutory grounds for

termination, termination was not in S.H.’s best interests, and an exception applies

to prevent termination. We find no merit in any contention and affirm termination

on both appeals.

I. Facts and Prior Proceedings

S.H. was born in 2008. This is the third time she has been the subject of a

child-in-need-of-assistance (CINA) proceeding.1 The court removed her from

parental care in February 2022 when her father, Tony, took her to buy illegal drugs

and then smoked the drugs in their van with her present. Tony and S.H. were

living with Tony’s mother at the time. Tony has legal custody through an order in

the district court.2 During the child abuse investigation, S.H. disclosed that in

January, her mother, Deb, left her alone in a hotel room where they were staying

with an adult acquaintance, Kevin, who started rubbing S.H.’s arms and legs. The

department believed the man was grooming S.H. for sexual abuse. Deb later sent

S.H. a long text blaming her for the incident with Kevin based on her clothing and

behavior and chastising her for disclosing the incident to authorities. After removal,

S.H. went to live with her adult half-sister and her husband, where she has

remained throughout this case.3

1 The previous CINA’s were in 2009 and 2016. The mother also has four other

children who are no longer in her custody. 2 At the time of the hearing, Tony was sixty-eight years of age. 3 Both precipitating incidents were brought to light by S.H.’s adult half-sister, who

often cared for S.H. when either her father or her grandmother were unable. 3

Both parents completed court-ordered substance-abuse evaluations but

were inconsistent with follow-up care and drug testing. Deb’s evaluation stated no

recommended treatment, but she regularly tested positive for methamphetamine

and marijuana in random drug tests throughout the case.4 Deb has a laundry list

of physical ailments for which she is prescribed numerous medications, including

oxycodone. Tony’s evaluation recommended outpatient treatment, but he did not

do that. He also never took a drug test.5

Tony also never did an ordered mental-health evaluation. Deb completed

an evaluation that recommended individual counselling. But Deb has been seeing

a therapist since before this case. The court reviewed paperwork and a letter from

her therapist, Mindy O’Leary. O’Leary testified that she has been treating Deb off-

and-on for twenty-five years. In the letter she expressed concerns about the

department’s interference with Deb’s family. She described Deb as a good parent

and contradicted factual statements in the GAL report. And she questioned S.H.’s

diagnoses and treatment with her mental-healthcare providers. She also

questioned whether the sexual grooming took place and asked for “proof.” Still,

her testimony was that she had not seen S.H. in several years and only very briefly

before that. When asked, she described herself as both Deb’s therapist and friend

and agreed she had attended social events with Deb in the past. Even so, in her

4 Deb claimed the test was positive for methamphetamine because she had been

taking Sudafed. 5 Tony claimed he was drug tested through his employment, although those results

were never produced and he was not working much of the time this case was pending. 4

testimony, O’Leary opined that she didn’t believe S.H. could presently be returned

to Deb’s care as she would not be able to provide appropriate resources.

The parents continue to blame S.H. for the removal and say she is lying

about the inappropriate touching from Kevin. Tony also said she made up his drug

use because she didn’t want to live with him. Deb testified expressing skepticism

that the incidents with Tony using drugs in front of S.H. and with Kevin touching

S.H. inappropriately actually happened. The department case manager testified

that, during a break in testimony, Deb told S.H. not to say anything negative about

Kevin or herself when it was her turn to testify.6

Visitations have not gone well and have never progressed beyond the fully

supervised stage. Tony consistently showed up late and left early. At the time of

the termination hearing, he had not seen S.H. in two months. Deb has not attended

consistently either. Deb’s behavior throughout the case was erratic and

disordered. She has multiple mental-health diagnoses and sought treatment but

continued to act out and bring up inappropriate topics at visitation. There is a no-

contact order between the parents and S.H.’s placement because of threats the

parents have made. Tony said he is self-employed as a mechanical contractor but

did not disclose his income. He continues to live with his elderly mother. When

asked about supporting S.H., Tony complained that he could not afford to give her

part of his $800 monthly social security he lives on. Deb lives with another adult

daughter and does not have her own housing or employment. According to Deb,

her contribution to supporting S.H. is $10 per month.

6 S.H. did not testify. 5

S.H.’s guardian ad litem (GAL) reported S.H. feels secure in the home of

her adult sister. S.H. has been seeing a therapist and is up-to-date on her health

and dental needs. She loves her parents but believes she will not be safe in their

care due to their unmet mental-health and substance-abuse needs. She wants

parental rights to be terminated so she can be adopted by her sister and her

husband.

The State petitioned to terminate parental rights in January 2023. The

termination hearing was held in March, and the court ordered parental rights

terminated in August. The court terminated both parents’ rights under Iowa Code

section 232.116(1)(e) and (f) (2023). The parents appeal separately.

II. Standard of Review

We review termination decisions de novo. In re P.L., 778 N.W.2d 33, 40

(Iowa 2010). We will uphold an order when there is clear and convincing evidence

of the statutory grounds for termination. In re T.S., 868 N.W.2d 425, 434 (Iowa Ct.

App. 2015). We give careful consideration to the juvenile court’s factual findings

and in-person observations, but we are not bound by them. See In re W.M., 957

N.W.2d 305, 312 (Iowa 2021). Our top priority is the child’s best interests. See In

re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially)

(identifying safety and the need for a permanent home as the “defining elements”

in the best-interests determination).

III. Statutory Grounds

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

parent's rights. P.L., 778 N.W.2d at 39. We first consider whether there is a

statutory ground for termination of the parent’s rights under section 232.116(1). Id. 6

Second, we look to whether termination of the parent’s 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. But

when the parent does not raise a claim relating to one of the three steps, we limit

our review to the claims presented. See id. at 40 (recognizing we do not consider

a step the parent does not challenge).

The juvenile court terminated the parents’ rights on two grounds. We need

only find sufficient proof of one ground to affirm. See In re A.B., 815 N.W.2d 764,

774 (Iowa 2012). We focus on paragraph (f). The parents contest only the final

element of the statutory ground in paragraph (f), that the child cannot be returned

to their custody at the present time. Iowa Code § 232.116(1)(f)(4); see In re A.S.,

906 N.W.2d 467, 473 (Iowa 2018) (interpreting “at the present time” to mean the

date of termination hearing).

Tony argues he has a stable residence, has addressed his substance-

abuse, and is able to financially support his child. While it appears Tony has a

stable residence at his mother’s house, the State proved that he cannot resume

care of S.H. at the present time. He has unaddressed substance-abuse and

mental-health issues. And Tony admits he “understands he cannot actively

engage in substance abuse and properly parent S.H.” Yet he has never drug

tested for the department and has not sought any substance-abuse treatment

despite the recommendation that he do outpatient treatment. He also never

obtained a mental-health evaluation. And it is not clear that he can financially 7

support S.H. because he claimed both to be working and unable to work after he

was struck by a car while walking across a road.7

Deb argues she has stable housing and attends to her mental-health needs.

She also claims to have clean drug tests. But she submitted seven positive drug

tests in the three months before the termination hearing. And while Deb argues

she is seeing a therapist, the juvenile court found “O’Leary’s testimony to be

colored by her friendship” with Deb and did not “give it much weight.” Upon our

review, we agree. O’Leary’s observations are limited to what Deb has told her,

and their therapy has not stabilized Deb’s behavior or contributed to her sobriety

in twenty-five years, so we too find it deserves no weight. Deb also has no home

of her own if S.H. were returned to her and no employment to support her.

Finally, both parents fail to acknowledge or show sufficient care for S.H.

regarding the trauma of witnessing her father abuse drugs and experiencing

inappropriate physical contact from an adult her mother exposed her to. Both

parents think S.H. is lying and neither shows no genuine interest in protecting her

from like harm. The State proved she cannot be returned to parental care at the

present time.

IV. Best Interests

Next, the parents argue that termination is not in the child’s best interests.

To determine whether termination is in the child’s best interests, we consider her

safety, as well as the best placement for furthering her “long-term nurturing and

7 This occurred on February 1, 2023, two months before the termination hearing.

Tony also claimed that while the case was pending, he was involved in a traffic collision on the interstate and sustained injuries that prevented him from working. 8

growth” and “physical, mental, and emotional condition and needs.” Iowa Code

§ 232.116(2). Neither parent has done anything to curb their substance-abuse or

mental-health concerns. They have continually put themselves first and

disregarded S.H.’s needs. Her best interests, both long- and short-term require

termination of their parental rights. S.H., now a teenager, also prefers termination

of their rights, so she can be adopted by her sister and her husband. See id.

§ 232.116(2)(b)(2) (permitting consideration of the “reasonable preference of the

child, if the court determines that the child has sufficient capacity to express a

reasonable preference”). We find she is intelligent and mature enough to give her

opinion weight in our decision. She has been doing very well in her sister and

brother-in-law’s home, and they want to adopt her. Before and after removal, they

consistently looked out for her best interests to an extent that her parents have

not. See id. § 232.116(2)(b) (requiring consideration of the child’s integration into

the foster family and whether the foster family is able and willing to provide a

permanent home to the child). After well over a year, the parents have achieved

no progress, and S.H.’s best interests will be best served by termination.

V. Statutory Exception

Finally, the parents argue their strong bond with S.H. should preclude

termination. Section 232.116(3)(c) allows the court to forgo termination when

“[t]here is clear and convincing evidence that the termination would be detrimental

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

parents bear the burden to persuade us to apply this factor. A.S., 906 N.W.2d at

475–76. S.H. expressed that she loves her parents, and they each testified they

love her. But they have not shown a bond strong enough that it would be to S.H.’s 9

detriment if broken. As an example, the parents were inconsistent with visitation.

Tony had not set up a visitation for two months before the termination hearing.

And he consistently showed up late and left early from those visits. Providers also

noted little bond between S.H. and Deb during visits. They observed S.H. does

not talk to her mother about anything personal or important and that Deb “talks at”

S.H. rather than with her. The parents have not carried their burden to prove the

statutory exception.

Finding no grounds of merit in either appeal, we affirm.

AFFIRMED ON BOTH APPEALS.