In the Interest of A.B. & S.B., Minor Children, S.B., Father , 2012 Iowa Sup. LEXIS 69 ( 2012 )


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  •                 IN THE SUPREME COURT OF IOWA
    No. 12–0133
    Filed June 22, 2012
    IN THE INTEREST OF A.B. & S.B.,
    Minor Children,
    S.B., Father,
    Appellant.
    Appeal from the Iowa District Court for Polk County, Constance
    Cohen, Judge.
    The State seeks further review of a court of appeals decision
    reversing the termination of a father’s parental rights.      COURT OF
    APPEALS     DECISION     VACATED;     JUVENILE      COURT     JUDGMENT
    AFFIRMED.
    Kate Strickler of KE Law, L.L.C., Des Moines, for appellant father.
    Donna R. Beary, Des Moines, for mother.
    Thomas J. Miller, Attorney General, Bruce L. Kempkes, Assistant
    Attorney General, John P. Sarcone, County Attorney, and Stephanie E.
    Brown, Assistant County Attorney, for appellee.
    John P. Jellineck, Des Moines, guardian ad litem for minor
    children.
    2
    MANSFIELD, Justice.
    In this case, a juvenile court terminated a father’s parental rights
    to two children pursuant to Iowa Code section 232.116(1)(d), (g), (h), and
    (l) (2011). The father appealed, arguing that the juvenile court violated
    his due process rights when it ordered him to provide a fingernail drug
    test after the termination trial, that the State failed to prove the grounds
    for termination, and that termination of the father’s parental rights was
    not in the children’s best interests.     The court of appeals reversed,
    principally on the basis there was no evidence in the record as to the
    reliability or the accuracy of the fingernail drug test, nor information as
    to how the test results were to be interpreted. We find that error was not
    preserved on the father’s due process claim and agree with the juvenile
    court that the evidence including the fingernail test was sufficient to
    warrant termination and termination was in the children’s best interests.
    Accordingly, we vacate the decision of the court of appeals and affirm the
    judgment and order of the juvenile court.
    I. Facts and Procedural History.
    Silverio is the father, and Nelda is the mother, of S.B. (born 2004)
    and A.B. (born 2007). Silverio and Nelda were never married, and both
    have children from prior relationships. They are no longer together, and
    their turbulent on-again, off-again relationship has been plagued by
    drugs and domestic violence. Silverio, the subject of six founded reports
    of child abuse, has criminal convictions for assault and possession of
    controlled substances.
    Silverio’s rights to another child were previously terminated.
    Silverio explained that the prior termination occurred because he had
    agreed with the child’s mother, Shannon, not to attend the termination
    hearing. According to Silverio, he and Shannon jointly decided it would
    3
    be best to allow the termination to occur in order to protect Shannon’s
    parental rights and “get them [the Department of Human Services] out of
    our lives.”
    S.B., A.B., and their younger half brother, D.G., were all living with
    their mother Nelda when these children came to the attention of DHS in
    November 2010.      At that time, it was reported that Nelda had not
    followed through with medical care and doctor’s recommendations for
    D.G.’s special medical needs.      Additional concerns arose regarding
    Nelda’s lack of stable housing, Nelda’s illegal drug use, and truancy-
    related issues with respect to S.B.      At this time, DHS began offering
    Nelda services.
    In January 2011, Silverio was arrested when marijuana, pills
    (including morphine), and a switchblade were found in his coat pockets.
    At the termination trial in this case, he claimed the drugs were not his:
    Q. Why did you have them? A. I don’t know why they
    was in my pocket.
    Q. Were they yours? A. No.
    Q. Whose were they? A. One of my friends.
    Q. Why did you have them? A. I don’t know. It must
    have been put in my pocket.
    In early March 2011, all three children—S.B., A.B., and D.G.—
    began living with Silverio in the basement of Silverio’s brother’s home.
    Nelda was essentially homeless and had felony arrest warrants for
    identity theft. On March 16, while charges from the January incident
    were still pending, Silverio was arrested for possession of cocaine and
    methamphetamine. The police saw Silverio carrying a black duffel bag
    and running away from the direction of police cars.       When the police
    4
    apprehended him, on the ground near the bag they retrieved a digital
    scale, cocaine, and methamphetamine. Silverio denied these were his. 1
    That same day, the juvenile court signed an order of temporary
    removal, placing the children in foster care. Silverio was subsequently
    released from jail, conditioned upon obtaining a substance abuse
    evaluation and complying therewith.
    On    March      17,     Nelda   was     arrested   for    identity   theft    and
    incarcerated. Also that day, the State filed petitions alleging the children
    to be in need of assistance (CINA) pursuant to Iowa Code sections
    232.2(6)(c)(2) and (n) (2011). The parents and children were ordered to
    submit to hair stat testing. Nelda and all three children tested positive
    for methamphetamine in March. Silverio claimed to have undergone a
    hair test, but the collecting agency had no records of it. Later, he shaved
    his head and was unable to provide a hair sample for testing.
    The juvenile court confirmed and continued the removal of the
    children after an uncontested hearing held on March 22.                      The court
    ordered numerous services to be provided to the family, including sibling
    contact, bus tokens for Nelda, dental care for the children, drug testing,
    Family    Safety    Risk        and   Permanency      Services,    substance       abuse
    evaluations, and a mental health evaluation for Nelda.
    Nelda      was   still    incarcerated    on   April   20    when     the     CINA
    adjudication hearing was held.             At the hearing, the juvenile court
    determined that “placement outside the parental home [wa]s necessary
    because continued placement in or a return to the home would be
    contrary to the children’s welfare because of improper supervision and
    1Another individual was also arrested in the vicinity, but the only bag that was
    found belonged to Silverio.
    5
    exposure to illegal drugs.”          The children were adjudicated in need of
    assistance and remained in foster care.
    Silverio submitted to a urinalysis in early April which tested
    positive for methamphetamine. He maintains this was a false positive
    and claims he has never used methamphetamine and has not used
    marijuana since before S.B. was born.
    Subsequently, Silverio pled guilty to the drug possession and
    weapon charges stemming from the January incident and received a
    thirty-day sentence.          He also agreed to a plea bargain in which the
    charges arising out of the April incident were reduced to one count of
    possession of drug paraphernalia, to which he pled guilty and was fined.
    On May 22, days after he was released from jail, Silverio was
    arrested again for domestic abuse assault, following an incident with
    Shannon. A no-contact order was issued. On August 18, Silverio pled
    guilty under a plea agreement in which the charge was amended to
    disorderly conduct. That same day, the no-contact order was canceled at
    Shannon’s request.
    Following his release from jail in May, Silverio provided numerous
    urine samples that all tested negative for illegal drugs, completed anger
    management class, 2 and appeared to be making progress with various
    parenting and reunification services. He took parenting classes and did
    not miss any family team meetings or court hearings. He completed a
    recommended drug and alcohol awareness program and underwent a
    mental health evaluation. Meanwhile, Nelda—the mother of A.B., S.B.,
    and D.G.—remained incarcerated much of the time.
    2Silverio   had previously completed the batterer’s education program (BEP) in
    2010.
    6
    Silverio also obtained full-time employment. He received a glowing
    character reference from his employer which he submitted as an exhibit
    in the termination hearing.      As of July, Silverio had resumed regular
    supervised visitation with the children characterized by appropriate
    interaction. During the visits, he brought the children snacks and gifts
    and provided their foster parents with clothing, coats, school supplies,
    and diapers for the children.     Silverio attended three of A.B.’s therapy
    sessions and communicated with S.B.’s school and with the children’s
    daycare provider. Substance abuse evaluators also reported favorably on
    Silverio.
    Despite Silverio’s progress and participation in reunification
    efforts, DHS had serious concerns regarding his “lack of honesty and
    insight.” The concerns related to Silverio’s relationships with Nelda and
    Shannon, his potential inability to control his anger, and his involvement
    with illegal substances. Silverio’s head still was shaven and he did not
    have enough hair for a hair stat test to be performed.          Also, A.B.
    continued to recall memories of physical violence between Silverio and
    Nelda and between Silverio and Shannon.
    Silverio was approved for semi-supervised visitation, and the first
    visit occurred around August 20. However, Silverio brought Shannon to
    the visit and thereafter the semi-supervised visitation was canceled and
    supervised visitation resumed.
    A permanency hearing was held on September 1.                Silverio
    requested additional time to obtain custody. The children’s guardian ad
    litem (GAL) recommended Silverio be given additional time to obtain
    custody.    The State recommended termination of Silverio’s parental
    rights. At the conclusion of the hearing, the juvenile court instructed the
    State to institute proceedings to terminate Silverio’s parental rights
    7
    within thirty days.         The court set October 25 as the date for the
    permanency/termination of parental rights hearing.
    The State filed a petition to terminate Silverio’s parental rights on
    September 23. On October 11, 2011, Court Appointed Special Advocates
    (CASA) prepared a report. The report indicated that the children were
    thriving and happy in foster care but did describe a bond between
    Silverio and both A.B. and S.B.              The report expressed a number of
    concerns about Silverio, including his “ability to speak with truth,” his
    “ability to effectively establish what he has learned in parenting classes,”
    his “involvement with Shannon,” and his “ability to identify positive and
    healthy relationships.” The report also related a very recent incident in
    which one of the foster parents had felt intimidated by Silverio. 3                      In
    addition, the report expressed concerns about both Nelda and D.G.’s
    father. The report recommended termination of all parental rights to all
    three children.
    On October 8, after the petition for termination of parental rights
    was filed, Silverio rented an apartment large enough for both children.
    The permanency/termination of parental rights hearing began on
    October 25. Silverio appeared in person and testified. Nelda testified by
    telephone from jail. D.G.’s father had been deported out of the country
    and did not attend. Other witnesses included Shannon, one of the foster
    parents, the therapist for A.B., and a DHS caseworker. The caseworker
    questioned Silverio’s honesty with respect to drug testing, noting she had
    seen him with his head both shaved and unshaved.                          The therapist
    3According   to the foster parent, the incident arose after the parent told the DHS
    caseworker about inappropriate statements Silverio made over the phone to A.B.
    Silverio allegedly told A.B. that A.B., S.B., Silverio, and Nelda would all live together in
    the future.
    8
    reported that A.B. had drawn pictures of and spoken about her father
    and mother’s apparent drug use.
    At the conclusion of evidence on November 2, the juvenile court
    asked the parties if they had any other requests.      Silverio’s attorney
    requested that Silverio be granted additional visits with the children.
    The DHS caseworker responded that she would like to discuss the matter
    with the children’s therapist and also find out if there was a family
    member who could supervise the additional visits.
    The following exchange occurred:
    THE COURT: [T]he court would expect that [Silverio’s]
    visits can be transitioned into semi-supervised if the child’s
    therapist agrees and [Silverio] can get himself there alone or
    with an approved person . . . .
    ....
    [THE STATE]: Your Honor, I—We’ve requested, and it’s
    been ordered in the past, for a hair test.
    And [Silverio] hasn’t been able to provide one since his
    hair is not long enough.
    [The DHS case worker] informs me they can do a nail
    test, so I would just ask that be substituted instead.
    THE COURT: Okay.
    [SILVERIO’S COUNSEL]: And if I could respond, Your
    Honor?
    [Silverio] calls every day for his number, for his urine
    tests; and he has not missed any of his urine tests. He goes
    every time that his number is called, and all of his tests have
    come back clean. I believe there was one that came back not
    clean . . . .
    THE COURT: Okay. Well, this is a service that’s being
    offered. I think it’s a reasonable effort.
    If you choose to take advantage of it, you know, it’s an
    opportunity for you to demonstrate that you have absolutely
    nothing to hide. We all know that urine screens can be
    adulterated. So I urge you to comply with that request. If
    you’re doing your homework, turn it in.
    9
    SILVERIO . . . : Okay.
    THE COURT: Okay.             Then we’ll be in recess until
    November 28 . . . .
    At the continued hearing on November 28, Silverio’s counsel
    reported:
    At the end of the [last hearing] . . . we all agreed that
    [Silverio] could have semisupervised visits if he passed a
    fingernail test. He went to have a fingernail test done, but
    . . . the site . . . said they no longer do fingernail testing.
    The DHS caseworker responded:
    This nail test was requested [a] long time ago.
    [Silverio], looks like, went to provide that test on Wednesday
    last week, and they told him to come back today. He did.
    And today he was told that they are not doing nail test. This
    nail test[] was approved by my director. I called back the
    number, and they said that they will call me and let me
    know if he can provide this nail test. So I am still hoping
    that he will be able to do so sometime this week.
    I am very concerned that he didn’t go to provide that
    test as soon as this test was requested.
    Silverio’s counsel responded that Silverio was “perfectly willing to
    do the fingernail test . . . [a]nd he would be happy to start dropping UAs
    again . . . .” The court considered the matter submitted, but stated it
    was
    leaving the record open for two more weeks . . . for [Silverio]
    to submit a fingernail test and for [the court] to get the
    results on that . . . then another week beyond that to allow
    parties time to submit any written memoranda or proposed
    findings of fact [or] conclusions of law.
    On November 29, 2011, Silverio submitted to the fingernail test.
    According to the report from the testing laboratory dated December 7,
    2011, the sample tested positive for methamphetamine. 4
    4The   test reading was 4,363 picograms per milligram, nearly nine times the
    stated threshold of 500 pg/mg for a positive reading.
    10
    On December 14, 2002, the GAL filed a written statement
    supporting termination of parental rights. He noted Silverio “has done
    some things well” and “[i]t is apparent he loves both of his children.” Yet
    the GAL added, “[Silverio’s] repeated delays in obtaining a hair stat test
    are extremely troubling; his subsequent positive result on the November
    29th fingernail test only serves to confirm those concerns.” The GAL also
    commented, “I do not see how it is feasible to return the children to
    [Silverio’s] care.” In conclusion, the GAL expressed the view that it was
    in A.B.’s and S.B.’s best interests for both parents’ rights to be
    terminated and for them to receive “permanency, along with a safe,
    stable and nurturing home.”
    On January 10, 2012, the juvenile court entered an order
    terminating the mother’s and the father’s parental rights to all three
    children. Specifically, the court terminated Silverio’s parental rights to
    A.B. and S.B. pursuant to Iowa Code section 232.116(1)(d), (g), (h), and
    (l). Among other things, the court noted the following:
    Reports of [Silverio] minimizing his substance abuse
    problems were substantiated by his repeated delays in
    obtaining a hair stat test after being ordered to do so, and
    his fingernail test result on November 29, 2011.           His
    fingernail screen tested positive for methamphetamine . . . .
    [S]adly, there is no question that he is still struggling with
    abstaining from the use of methamphetamine and has not
    been forthcoming about his addiction to the extent that
    would allow services to be tailored to meet his needs.
    ....
    [Silverio’s] drug screen [i]n April . . . was positive for
    methamphetamine.        Yet, he reported that he had no
    problems with illegal substances. [Silverio] underwent a
    substance abuse evaluation on February 16, 2011, before
    the petitions were filed, in order to comply with the
    requirements of the criminal cases pending against him . . . .
    In that evaluation, Silverio reported his last use of marijuana
    as being eight years ago and denied any use of
    methamphetamines, cocaine, opiates, heroin, or any other
    11
    drugs. Accordingly, there were no recommendations for
    further treatment.
    On August 15, 2011, [Silverio] underwent another substance
    abuse evaluation.   Again, this evaluation was required
    because of pending drug charges. And again, in spite of a
    drug test that was positive for methamphetamine in April,
    and ongoing drug-related charges, [Silverio] continued to
    deny drug use. Based upon his representations to the
    evaluator, no recommendations for further treatment were
    made.
    Obviously, the results of the evaluations were based upon
    the sole representations of [Silverio], which representations
    were false. He neglected to tell the evaluator that he was
    testing positive for methamphetamine in April, 2011, and,
    more disturbing, provided a drug screen positive for
    methamphetamine in December, 2011, as per the fingernail
    analysis. Clearly, Silverio . . . suffers from a severe and
    chronic substance abuse problem that places himself and
    others in danger as evidenced by prior acts. His fervent
    denial of drug use in the face of clear evidence to the
    contrary indicates that he is not ready to begin the changes
    necessary to provide a safe and stable drug-free environment
    for young children. Given his denial, his prognosis is poor.
    There is no reason to believe that he will be able to resolve
    his unadmitted addiction in a reasonable amount of time
    given these young children’s need for a permanent home.
    Because of his unresolved addiction, contact between
    [Silverio] and the children has been supervised by
    professionals to date. Efforts to relax the level of supervision
    were disrupted when he participated in unauthorized contact
    with the children while at his brother’s home. His testimony
    that he had been clean since before S[.B.] was born was
    completely undermined by the drug screen results in April
    and December.
    In addition to his denial of ongoing drug abuse, there are
    numerous drug related charges he has faced or is currently
    facing. For example, in January, 2011, when charged with
    carrying concealed weapons and possession of marijuana, he
    claimed that the report that the knife was in his pocket was
    incorrect and that a friend must have put the drugs in his
    pocket. In March, 2011, he was carrying a small black duffel
    bag and running from the direction of police cars. Police
    later found a small black scale and drugs near the bag that
    he had been carrying. The charges that resulted in the
    children being removed, the possession of methamphetamine
    and cocaine, are simply too consistent with his past pattern
    to be considered coincidental and not related to his own drug
    use.
    12
    Were it not for the denial of drug use in the face of credible
    evidence to the contrary, reunification would be achievable.
    Silverio has complied with anger management therapy,
    gained insight into his domestically violent relationships,
    and has demonstrated appropriate parenting skills. The
    children are happy to see him at visits and he provides
    appropriate snacks and activities for them. He is employed
    and has appropriate housing.        He has benefited from
    parenting classes.
    It is clear that [Silverio] loves the children and that they love
    him. But it is also clear that he is not in a position to
    provide the safe and stable home for them that they need
    and deserve. Additionally . . . as recently as October 11,
    2011, he became very argumentative with A[.B.]’s foster
    parent and she had to end the conversation. She felt that he
    was trying to intimidate and bully her.
    [Silverio] has harmed A[.B.] by giving her false hope that she
    and her parents would all be together again someday. This
    action on his part demonstrates a lack of insight into the
    toxicity of his relationship with Nelda.
    S[.B.] and A[.B.] have related feelings of relief in their current
    foster homes. S[.B.] has repeatedly told his foster parents
    that he likes living there because he no longer has to worry
    about his mom and dad fighting or his dad and Shannon
    fighting. While [Silverio] made efforts to call A[.B.], he did
    not make a similar effort to maintain telephone contact with
    S[.B.]
    ....
    [Silverio] is this case’s greatest disappointment. Because he
    is unwilling to admit that he has a substance abuse
    problem, he cannot begin to resolve it. Because he believes
    that he has completed anger management classes, he
    believes he has resolved his anger issues; however, recent
    conversations with S[.B.] and A[.B.]’s foster parents belie
    that conclusion. Although there is a bond with the children,
    because of his deceit and inability to admit that he needs
    more help, visits are still professionally supervised and
    cannot progress beyond that restriction without risk of harm
    to the children.
    Silverio appealed the termination order. 5                He urged that the
    juvenile court violated his due process rights when it ordered a drug test
    5Neither   Nelda nor D.G.’s father have appealed the termination of their parental
    rights.
    13
    at the end of the termination trial and relied on those results, that the
    State had failed to establish a statutory ground for termination by clear
    and convincing evidence, and that termination of Silverio’s parental
    rights was not in the best interests of A.B. and S.B.
    A divided panel of the court of appeals reversed.        The majority
    reasoned that Silverio had failed to preserve error on his objections to the
    fingernail test but stated that it was “bothered by the results of the
    fingernail test” because it found “no evidence in the record as to the
    reliability or the accuracy of this type of test.” The court added that the
    record did not provide “any information as to how such test results are to
    be interpreted” and that there was “no way of knowing” whether the test
    indicates drug usage in the recent or distant past. “For all we know, the
    positive test merely confirms the April test results.”
    Because it was unable to assign any weight to the fingernail test,
    the court of appeals found the evidence insufficient to warrant
    termination and also found that termination was not in the children’s
    best interests. The court took note of the very positive reports on Silverio
    from his employer and from various service providers.            The court
    concluded, “We believe a single fingernail test, without any information
    about its accuracy, reliability, or how its results are to be interpreted,
    cannot support termination of the father’s parental rights under this
    record.”   Thus, the court of appeals reversed and remanded with
    instruction to grant Silverio six additional months toward reunification.
    One judge on the panel dissented.       She acknowledged that “the
    majority sets forth an excellent and compelling opinion,” but reasoned
    that “the issues as they relate to the fingernail drug test were simply not
    preserved for our review.”     In her view, the majority “inappropriately
    resurrect[ed] the fingernail test issue, critique[d] the test, suggest[ed] it
    14
    was unreliable, and then conclude[d] that termination was improper.”
    She specifically noted that the juvenile court had kept the record open,
    thereby providing an opportunity for Silverio to challenge the test
    results—and he had failed to do so.
    We granted the State’s application for further review.
    II. Standard of Review.
    “We review proceedings to terminate parental rights de novo.” In re
    Interest of H.S., 
    805 N.W.2d 737
    , 745 (Iowa 2011). “We give weight to the
    juvenile court’s factual findings, especially when considering the
    credibility of witnesses, but we are not bound by them.” Id.
    III. Analysis.
    A. The Fingernail Drug Test. Two succinct and clearly-written
    opinions from experienced judges on the court of appeals have framed
    the issues well for us.   The court of appeals majority agreed with the
    State that the father had failed to preserve error on his objections to the
    fingernail test results. Yet it overturned the juvenile court’s termination
    order because it found those test results uninformative and unreliable.
    The dissent, on the other hand, accused the majority of honoring error
    preservation principles in name only.      It maintained the majority was
    taking on the role of advocate by raising concerns about the fingernail
    test that the father had not asserted below.
    Upon our review, we land in a middle ground between these two
    opinions. We find that the court of appeals majority’s criticisms of the
    fingernail test, at least to some extent, did not violate principles of error
    preservation.   But we disagree with the majority’s conclusion that the
    record, including the fingernail test, lacks clear and convincing evidence
    to warrant termination of Silverio’s parental rights.
    15
    We begin with a few points. First, the general rule that appellate
    arguments must first be raised in the trial court applies to CINA and
    termination of parental rights cases. In re Interest of K.C., 
    660 N.W.2d 29
    , 38 (Iowa 2003) (“Even issues implicating constitutional rights must
    be presented to and ruled upon by the district court in order to preserve
    error for appeal.”); In re Interest of A.M.H., 
    516 N.W.2d 867
    , 872 (Iowa
    1994) (holding that by failing to file a motion under rule 179(b), now rule
    1.904(2), a mother waived her statutory and due process challenges to
    the deficiencies of the juvenile court’s order); In re Interest of S.J.M., 
    539 N.W.2d 496
    , 499 (Iowa Ct. App. 1995) (holding that a father waived any
    error in the admission of testimony by not objecting to it). Thus, Silverio
    cannot complain about the admission of the test report.
    The juvenile court did not order Silverio to submit to a fingernail
    drug test; instead, he voluntarily agreed. Several weeks after the close of
    testimony, Silverio still had not undergone the test.       Nonetheless, he
    reiterated, through counsel, that he was “perfectly willing” to do it. He
    then voluntarily appeared at the laboratory the next day. Even after the
    test report was filed, the court made clear that it was providing “another
    week beyond that to allow parties time to submit any written
    memoranda.” But Silverio failed to file anything with the juvenile court
    regarding the test.
    Of course, Silverio’s failure to object to the test results does not
    prevent the fact finder from deciding what weight to give to the evidence,
    after it has been admitted. See DeLong v. Brown, 
    113 Iowa 370
    , 373, 
    85 N.W. 624
    , 625 (1901) (“[T]he weight to be given to evidence and its
    admissibility are different matters.”). Thus, it was fair for the court of
    appeals to comment on the limitations of the test report and observe that
    “we have no way of knowing, based upon this record, whether the
    16
    fingernail test indicates current drug usage, usage in the last week, last
    month, or from several months ago.”
    On the other hand, the majority may have gone too far when it
    decried an absence of evidence “as to the reliability or the accuracy of
    this type of test.”   The two-page test report was admitted.      It has no
    indicia of unreliability on its face. It identifies who collected the sample,
    where, and when; it provides a chain of custody for the sample; and it
    identifies who ran the tests, where, and when.           The various drug
    screenings that the laboratory performed are indicated along with the
    results. The test report clearly states that the methamphetamine reading
    was nine times the threshold for a positive test.
    Under our rules of evidence, exhibits generally are not admitted
    unless there is “evidence sufficient to support a finding that the matter in
    question is what its proponent claims.” Iowa R. Evid. 5.901(a). It follows
    that when an exhibit has been admitted without objection, the fact finder
    may conclude that it is what it purports to be.           Of course, other
    evidence—or aspects of the exhibit itself—may call this conclusion into
    question. But when the exhibit has been received without objection, it
    does not raise any concerns on its face, and there is a lack of other
    evidence suggesting it is not reliable, the proponent of the exhibit should
    not be faulted for failing to offer separate evidence to establish its
    reliability.
    The principle is one we have recognized before:
    [T]he proper rule to be adhered to in this state is that when
    hearsay evidence which would be objectionable and
    incompetent when properly objected to is admitted without
    objection and is relevant and material to an issue it is to be
    considered and given its natural probative effect as if it were
    in law competent evidence. Its weight is to be determined by
    the trier of fact by the same criteria as is employed in
    considering other competent evidence.
    17
    Tamm, Inc. v. Pildis, 
    249 N.W.2d 823
    , 834 (Iowa 1976); see also State v.
    DeWitt, 
    811 N.W.2d 460
    , 477 (Iowa 2012) (quoting this language).
    In sum, the court of appeals majority was correct in their
    assessment that the positive fingernail test did not indicate when Silverio
    had last used methamphetamine. The test report did not disclose this,
    and the State did not offer evidence to interpret the report. At the same
    time, however, it was not the State’s burden to offer evidence to establish
    the reliability of a report that appeared valid on its face and to which no
    objection was raised.     If nothing else, the November 2011 positive
    fingernail test confirms the April 2011 positive urine test and explains
    Silverio’s earlier apparent evasiveness regarding both hair and fingernail
    testing.
    B. Grounds for Termination.         We now turn to the question
    whether clear and convincing evidence (including the fingernail test)
    established a ground for termination.         When the juvenile court
    terminates parental rights on more than one statutory ground, we may
    affirm the juvenile court’s order on any ground we find supported by the
    record. In re Interest of D.W., 
    791 N.W.2d 703
    , 707 (Iowa 2010). We find
    termination was proper under section 232.116(1)(d).
    Under section 232.116(1)(d) termination may be ordered if the
    court finds that both of the following have occurred:
    (1) The court has previously adjudicated the child to
    be a child in need of assistance after finding the child to
    have been physically or sexually abused or neglected as the
    result of the acts or omissions of one or both parents, or the
    court has previously adjudicated a child who is a member of
    the same family to be a child in need of assistance after such
    a finding.
    (2) Subsequent to the child in need of assistance
    adjudication, the parents were offered or received services to
    correct the circumstance which led to the adjudication, and
    18
    the circumstance continues to exist despite the offer or
    receipt of services.
    There is no dispute that A.B. and S.B. were adjudicated as CINA
    based on findings they had been neglected by both parents.                In its
    uncontested CINA adjudication order of April 20, 2011, the juvenile court
    concluded that “placement outside the parental home [wa]s necessary
    because continued placement in or a return to the home would be
    contrary to the children’s welfare because of improper supervision and
    exposure to illegal drugs.”          The fighting issue here is whether this
    circumstance that led to the CINA adjudication continued to exist despite
    the offer of services to Silverio.
    The juvenile judge, who had followed this case from the beginning
    and heard the live testimony, concluded that the circumstance remained.
    We believe her finding is supported by clear and convincing evidence. As
    noted by the juvenile court, Silverio had failed to address his illegal drug
    use and was in denial.
    Silverio continuously asserted, both before and during the
    termination hearing, that he had never used any drugs other than
    marijuana, and the marijuana use had ended before S.B. was born. But
    hair   tests   on    A.B.   and      S.B.     both   came   back   positive   for
    methamphetamine when they were removed from Silverio’s care in March
    2011. Silverio claimed to have provided a hair sample at the same time,
    but the collecting agency had no record of it. Later Silverio shaved his
    head and therefore did not have enough hair for a sample. Silverio did
    have a urine test that detected methamphetamines in April, which he
    claimed was a false positive. Also, A.B. recalled prior illegal drug use by
    her father in her discussions with her therapist.
    19
    Silverio denied having any substance abuse issues in both his
    February and August 2011 substance abuse evaluations. The evidence
    supports the juvenile court’s finding that he was not forthcoming in
    these evaluations. In his August evaluation, he declined to disclose the
    positive result in his April drug test.
    In January 2011, and again in March 2011, Silverio was arrested
    on drug-related charges, and both times he entered guilty pleas.               The
    juvenile court was entitled to find Silverio’s explanations for these
    incidents self-serving and implausible.          Silverio claimed he was the
    victim of a friend’s decision to slip drugs into his jacket pockets in
    January, although Silverio later pled guilty to possession of marijuana
    and possession of prescription medication without a prescription. The
    police report stated that when officers apprehended Silverio, he took off
    the jacket so as not to be associated with it, knowing that it contained
    illegal controlled substances. It also indicates that Silverio “admitted to
    officers voluntarily that the pills were his.”
    In March, Silverio was apprehended with a black duffel bag while
    running    away   from    the   police.    A     digital   scale,   cocaine,   and
    methamphetamines were found on the ground in close proximity to him.
    He ended up pleading to possession of drug paraphernalia. Yet at the
    termination hearing, Silverio maintained he was not the owner of those
    drugs, and there was no factual basis for the possession charge to which
    he had pled guilty.
    Along these lines, we find the November 2011 positive fingernail
    test to be significant, regardless of the time period for which it
    demonstrates that Silverio used methamphetamines.                   It is further
    evidence that the April 2011 urinalysis did not produce a false positive,
    that Silverio had been deceiving himself and others, and that he had
    20
    failed to confront his history of illegal drug use.             Also troubling was
    Silverio’s delay in making himself available for the test, after he had
    agreed to undergo the test.
    Silverio’s participation in parenting services was commendable. To
    his credit, he also did several other things. He remedied DHS’s concerns
    about the inadequacy of his housing situation (although not until the
    petition for termination of parental rights was pending), completed anger
    management classes, and obtained full-time employment. However, we
    believe the State demonstrated that Silverio’s unaddressed substance
    abuse problem continued to exist at the time of the termination hearing
    despite the receipt of services.
    We have long recognized that an unresolved, severe, and chronic
    drug addiction can render a parent unfit to raise children. See, e.g., In re
    Interest of J.K., 
    495 N.W.2d 108
    , 112–13 (Iowa 1993) (terminating
    parental rights where mother demonstrated unresolved drug dependency
    and declining to take her “word that she stayed away from drugs”). “No
    parent should leave his small children in the care of a meth addict—the
    hazards are too great.”        State v. Petithory, 
    702 N.W.2d 854
    , 859 (Iowa
    2005). 6
    The juvenile court concluded that if not for Silverio’s “denial of
    drug use in the face of credible evidence to the contrary, reunification
    6We   believe the record also supports the juvenile court’s concerns about the
    ongoing potential for domestic violence in the household if A.B. and S.B. were reunified
    with Silverio. Despite having completed BEP in 2010, Silverio was arrested in May
    2011 for an incident of domestic abuse toward Shannon. According to the police report,
    Shannon told police that Silverio grabbed her arms causing red marks and spit in her
    face. (Silverio denied this conduct at the termination hearing, claiming that was “just
    the word of the neighbor who didn’t show up to testify”—not Shannon.) When the first
    semi-supervised visit was scheduled, Shannon came with Silverio, having agreed to
    drop the no-contact order two days before.
    21
    would be achievable.” However, because of those denials, Silverio’s drug
    problem was unresolved, and thus, he was “not in a position to provide
    the safe and stable home [A.B. and S.B.] need and deserve.”                 The
    evidence demonstrates that Silverio’s substance abuse issue continued
    to place himself and others in danger despite his otherwise laudable
    participation   in   services.   We    agree   with    the    juvenile   court’s
    determination that, despite Silverio’s receipt of services to correct the
    circumstances that led to the CINA adjudication, those circumstances
    continued to exist at the time of the termination hearing. See Iowa Code
    § 232.116(1)(d).
    C. Best Interests of the Children.               Even after we have
    determined that statutory grounds for termination exist, we must still
    determine whether termination is in the children’s best interests. Iowa
    Code § 232.116(2); see also In re Interest of P.L., 
    778 N.W.2d 33
    , 39 (Iowa
    2010). In evaluating this issue, 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, mental, and
    emotional condition and needs of the child.’ ”        P.L., 778 N.W.2d at 39
    (quoting Iowa Code § 232.116(2)); see also In re Interest of J.E., 
    723 N.W.2d 793
    , 802 (Iowa 2006) (Cady, J., concurring specially) (stating that
    a child’s safety and the child’s need for a permanent home are the
    “defining elements” in determining a child’s best interests).
    Both A.B. and S.B. were doing well in their respective foster
    placements at the time of the hearing.     In August 2011, S.B. told the
    CASA volunteer that he liked Silverio because he bought him toys, but he
    wanted to stay with his foster mother and father.            The foster mother
    testified that S.B. was “starting to build confidence.” In September, S.B.
    repeatedly told his foster parents that he liked living with them because
    22
    he no longer had to “worry” and he didn’t have to “hear all of the
    fighting.” As of September 30, S.B. had not missed or been tardy for a
    single day of school since his placement began in March. He was doing
    well academically, making friends, and enjoying school so much that he
    “never want[ed] to miss [it].”    This was noteworthy because truancy
    concerns in regards to S.B. were one of the reasons the children first
    came to the attention of DHS in November 2010. Furthermore, S.B.’s
    foster parents had indicated that they planned to adopt him and his half
    brother D.G., thereby providing the permanent, safe, stable home
    environment they deserve.
    Likewise, A.B.’s therapist reported that A.B. was guarded around
    Silverio and that her primary sense of security and safety was around
    her foster family. According to the therapist, because of past trauma,
    A.B. was “a very uncertain child” and “fearful of being rejected.”     A.B.
    clearly dreaded a possible reoccurrence of the unwelcoming environment
    to which she had been exposed before.
    By the time the termination hearing ended, A.B. and S.B. had been
    out of the custody of their natural parents for over eight consecutive
    months. While Silverio had clearly taken advantage of services offered by
    DHS, the fact remained that during 2011 he had been involved in two
    drug-related incidents and one incident of domestic violence.            He
    downplayed the latter incident and offered far-fetched denials of the
    former incidents.    Most importantly, he refused to acknowledge any
    illegal drug use despite strong evidence to the contrary and despite the
    additional concern raised by A.B. and S.B. having tested positive for
    methamphetamine when they were removed from Silverio’s custody. We
    agree with the juvenile court that “termination of parental rights is in the
    23
    children’s best interest and would be less detrimental than the harm that
    would be caused to them by continuing the parent/child relationship.” 7
    “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 learn to be a parent and be
    able to provide a stable home for the child.” P.L., 778 N.W.2d at 41. A.B.
    and S.B. “simply cannot wait for responsible parenting.                        Parenting
    cannot be turned off and on like a spigot.                     It must be constant,
    responsible, and reliable.”         In re Interest of L.L., 
    459 N.W.2d 489
    , 495
    (Iowa 1990) (discussing the father’s lack of motivation to change and his
    reversion to his old ways with respect to issues of domestic violence and
    alcohol and drug abuse).            “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.”               In re Interest of C.K., 
    558 N.W.2d 170
    , 175 (Iowa 1997).
    “Insight for the determination of the child’s long-range best
    interests can be gleaned from ‘evidence of the parent’s past performance
    for that performance may be indicative of the quality of the future care
    that parent is capable of providing.’ ” In re Interest of C.B., 
    611 N.W.2d 489
    , 495 (Iowa 2000) (quoting In re Interest of Dameron, 
    306 N.W.2d 743
    ,
    7In   his petition on appeal, Silverio advances a cursory argument that
    termination is not in the best interests of the children because it will potentially deprive
    them of their Hispanic heritage. This issue was not raised below. Even if it had been
    preserved below, we would still have to 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, mental, and emotional condition and needs of the child.’ ”
    See P.L., 778 N.W.2d at 39 (quoting Iowa Code § 232.116(2)); see also In re F.W., 
    870 A.2d 82
    , 86 (D.C. 2005) (“[R]ace is simply a factor that may be considered by the trial
    court in the process of determining the best interests of the child,” which “pale[s] into
    insignificance when we compare the health needs of th[e] child . . . .” (citation and
    internal quotation marks omitted)).
    24
    745 (Iowa 1981)).        In this case, Silverio’s overall track record is not a
    good one, including termination of his parental rights to another child,
    six founded child abuse reports, drug-related convictions, and incidents
    of domestic abuse.          We credit Silverio for important changes he has
    made. But until he confronts his drug abuse issues, we share the views
    of the judge on the scene that “his prognosis is poor.” 8
    V. Conclusion.
    For the foregoing reasons, we vacate the opinion of the court of
    appeals and affirm the juvenile court’s judgment terminating Silverio’s
    parental rights to A.B. and S.B.
    COURT OF APPEALS DECISION VACATED; JUVENILE COURT
    JUDGMENT AFFIRMED.
    8Under    the three-step process set forth in the statute, once a ground for
    termination has been proved under section 232.116(1), and the factors under section
    232.116(2) favor termination, the court should then decide whether it need not
    terminate the relationship for any of the reasons set forth in section 232.116(3). P.L.,
    778 N.W.2d at 40–41. Here, Silverio has not referenced section 232.116(3) in his
    petition on appeal, although he has asserted there is a bond between the two children
    and himself. See Iowa Code § 232.116(3)(c) (providing that the court need not terminate
    the relationship between the parent and the child if the court 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”). Assuming without deciding that
    Silverio’s reference is sufficient to raise the issue, we concur in the juvenile court’s view
    that there is a bond between Silverio and A.B. and S.B., but the children’s safety, long-
    term nurturing and growth, and physical, mental, and emotional needs would be better
    served by termination of parental rights notwithstanding that bond. See D.W., 791
    N.W.2d at 709 (holding that in analyzing this exception, “our consideration must center
    on whether the child will be disadvantaged by termination, and whether the
    disadvantage overcomes [the parent’s] inability to provide for [the child’s] developing
    needs”).
    

Document Info

Docket Number: 12–0133

Citation Numbers: 815 N.W.2d 764, 2012 WL 2361730, 2012 Iowa Sup. LEXIS 69

Judges: Mansfield

Filed Date: 6/22/2012

Precedential Status: Precedential

Modified Date: 10/19/2024

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