In the Interest of S.W., Minor Child

• Court: Court of Appeals of Iowa
• Decided: December 19, 2018
• Docket: 18-1767
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-1767 Filed December 19, 2018

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

P.W., Father, Appellant,

H.W., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Colin J. Witt, District

Associate Judge.

The mother and father appeal the termination of their parental rights to their

child. AFFIRMED ON BOTH APPEALS.

Raya D. Dimitrova of Carr Law Firm, P.L.C., Des Moines, for appellant

father.

David Barajas of Macro & Kozlowski, LLP, West Des Moines, for appellant

mother.

Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney

General, for appellee State.

Paul L. White of the Des Moines Juvenile Public Defender’s Office, Des

Moines, guardian ad litem for minor child.

Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ. 2

VOGEL, Presiding Judge.

The father and mother separately appeal the termination of their parental

rights to S.W., born in July 2015. The father argues the State failed to prove by

clear and convincing evidence that grounds for termination exist under Iowa Code

section 232.116(1)(h) (2018). Both argue the district court should have granted a

six-month extension and should have found termination was not in S.W.’s best

interests. We find the State has proved the grounds for termination by clear and

convincing evidence, a six-month extension would not have extinguished the need

for removal, and termination is in S.W.’s best interests.

I. Background Facts and Proceedings

The family first came to the attention of the Iowa Department of Human

Services (DHS) in April 2017 after the mother reported a domestic assault to law

enforcement. On April 19, the mother and father, who are not married, visited the

home of a known drug dealer with S.W. in their vehicle. As the father drove away

from the home, he and the mother began to argue. According to a report from law

enforcement, the father “became very aggressive and started driving erratically

and at high speeds,” even “driving so fast his jeep went onto 2 wheels while making

turns.” Additionally, the mother stated the father held a knife to her throat as they

returned home. The next day, the mother contacted law enforcement to report the

incident and stated she waited to report because she did not want to upset the

guests in her home. Law enforcement referred the case to DHS because S.W.

was in the car during this incident. The mother and father admitted they were

under the influence of methamphetamine at the time. 3

S.W. was adjudicated as a child in need of assistance (CINA) on June 22,

2017. After more than one year of offered services, the State filed a petition to

terminate parental rights on July 26, 2018. A hearing was held on September 13.

On September 27, the district court found the State had proved by clear and

convincing evidence the grounds for termination under Iowa Code section

232.116(1)(h). The mother and father appeal.

II. Standard of Review

We review termination-of-parental-rights proceedings de novo. In re M.W.,

876 N.W.2d 212, 219 (Iowa 2016). “We are not bound by the juvenile court’s

findings of fact, but we do give them weight . . . .” In re D.W., 791 N.W.2d 703,

706 (Iowa 2010). “We will uphold an order terminating parental rights if there is

clear and convincing evidence of grounds for termination under Iowa Code section

232.116.” Id.; accord Iowa Code § 232.117(3) (“If the court concludes that facts

sufficient to sustain the petition have been established by clear and convincing

evidence, the court may order parental rights terminated.”). “‘Clear and convincing

evidence’ means there are no serious or substantial doubts as to the correctness

[of] conclusions of law drawn from the evidence.” In re C.B., 611 N.W.2d 489, 492

(Iowa 2000).

III. Grounds for Termination

The father argues the State failed to prove by clear and convincing evidence

that his parental rights should be terminated under Iowa Code section

232.116(1)(h). Specifically, he challenges the State’s establishment of the fourth

requirement, which provides the child could not be returned to the father’s custody 4

“at the present time.”1 Iowa Code § 232.116(1)(h)(4). In his petition, the father

asserts “[i]t is clear from the evidence that [he] is not in the same position as he

was at the time of removal.” He claims he has completed substance-abuse

treatment and that he has remained sober following the treatment.

At the termination hearing, neither parent testified the child could be

returned at the present time. In addition, a social worker opined the child could not

be returned to the parents at the present time; all visits remained fully supervised.

With regard to the father, the social worker further stated the father has not

sufficiently engaged in substance-abuse services because he has not been honest

about his drug use and has relapsed a few times. On June 8, 2018, about one

year after S.W. was removed from the home, the father and mother provided sweat

patch tests that were positive for methamphetamine, indicating they were still

using. Both parents deny drug use and have stated the positive sweat patch drug

test could have come from bed sheets that had not been washed since their last

relapse or from exposure to a guest’s methamphetamine use in their home. The

father’s results indicated he had 269 nanograms per milliliter of methamphetamine

1 Paragraph (h) provides termination is warranted if, The court finds that all of the following have occurred: (1) The child is three years of age or younger. (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (3) The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time. 5

in his system2 and the test cutoff level was ten nanograms per milliliter. Despite

the high results, the father continued to deny drug use. The record clearly supports

the father’s continued methamphetamine use. Therefore, we find the State proved

by clear and convincing evidence that the child could not be returned to the father’s

custody at the present time and thus, the father’s challenge to the statutory

grounds for termination is denied.

IV. Additional Time

Both parents argue the district court should have granted an additional six

months before termination. Iowa Code section 232.104(2)(b) provides the court

may authorize a six-month extension of time if it finds “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.” In June 2017, S.W. was adjudicated as a CINA and the parents

were given fifteen months to work towards reunification. Both parents continue to

be deceptive about their drug use, and neither have properly addressed their

domestic violence issues. In a report to the court, DHS notes the mother has

engaged in services but “displays codependent features within her relationship and

has presented with impaired insight related to the unhealthy patterns” of the

relationship between her and the father. The report further notes that the parents

“maintain that the incident that brought them to DHS’ attention was an isolated

incident and [was] a result of using drugs”; however, the report concluded the two

parents are unaware of their unhealthy relationship dynamics and are attempting

2 The mother’s sweat patch drug test results were 150 nanograms per milliliter of methamphetamine. 6

to minimize their issues rather than address them. In the ruling, the district court

stated:

Ultimately, at termination, [the mother] and [the father] present themselves as a couple and they do present as two people who are co-dependent and unable to separate from each other. They have not created an environment where a three year old child can be safely placed in their care and custody on a full time basis where it could predictably be believed the child would not be subject to adjudicative harm and they could be minimally capable in the short or long term of meeting [S.W.]’s needs.

The district court noted this is “sad and tragic,” but it concluded that “given [S.W.]’s

age and the amount of time this CINA has been open, we can’t wait any more.”

Accordingly, the district court found termination appropriate.

Despite receiving more than twice the time required by statute before

termination, the parents have failed to make sufficient progress towards

reunification. See Iowa Code § 232.116(1)(h)(3) (requiring the child to be removed

from the parents’ custody “for at least six months of the last twelve months, or for the

last six consecutive months and any trial period at home has been less than thirty

days”); see also In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (“We have

repeatedly followed the principle that the statutory time line must be followed and

children should not be forced to wait for their parent to grow up.”). “We will not

gamble with a child’s future by asking him [or her] to continuously wait for a stable

biological parent, particularly at such a tender age.” In re D.S., 806 N.W.2d 458,

474 (Iowa Ct. App. 2011). Therefore, we find the record does not support the

notion that additional time would extinguish the need for removal. See Iowa Code

§ 232.104(2)(b). 7

V. Best Interests of the Child

Both parents claim termination is not in S.W.’s best interests due to their

bond with S.W.3 “A strong bond between parent and child is a special

circumstance which mitigates against termination when the statutory grounds have

been satisfied.” N.F., 579 N.W.2d at 341; see Iowa Code § 232.116(3)(c).

However, this “is not an overriding consideration, but merely a factor to consider.”

N.F., 579 N.W.2d at 341.

While both parents have engaged in Child Parent Psychotherapy to work

on maintaining a relationship with S.W., the parents continue to maintain an

unhealthy relationship with each other. “[O]ur consideration must center on

whether the child will be disadvantaged by termination, and whether the

disadvantage overcomes [the parents’] inability to provide for [the child]’s

developing needs.” D.W., 791 N.W.2d at 709. Therefore, we agree with the district

court termination is in S.W.’s best interest and the bond between the parents and

S.W. is insufficient to preclude termination.4 See Iowa Code § 232.116(2), (3)(c).

3 While the parents rely on their bond with S.W. to argue termination is not in the best interests of the child, this argument is misplaced. This argument is more appropriate under the permissive factors of Iowa Code section 232.116(3). See Iowa Code § 232.116(3)(c) (stating the court need not terminate parental rights if it finds “[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”). 4 The father also asserts termination is a violation of his due process and equal protection rights under the United States and Iowa Constitutions. These assertions were not raised below, and we decline to address them for the first time on appeal. See State v. Joss, 211 N.W.2d 320, 321 (Iowa 1973) (“We have repeatedly held that ordinarily matters not raised in the trial court, including constitutional questions, cannot be effectively asserted for the first time on appeal.”). 8

VI. Conclusion

We find the State proved by clear and convincing evidence the grounds for

termination of the father’s parental rights. Additionally, we find an additional six

months would not extinguish the need for removal. Finally, termination is in S.W.’s

best interests and any bond between the parents and child does not preclude

termination.

AFFIRMED ON BOTH APPEALS.