In the Interest of S.S. and S.S., Minor Children ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1608
Filed March 17, 2021
IN THE INTEREST OF S.S. and S.S.,
Minor Children,
N.S., Mother,
Appellant,
S.S., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Lynn Poschner, District
Associate Judge.
Parents appeal the termination of their parental rights to their two children.
AFFIRMED ON BOTH APPEALS.
Terzo R. Steves, Des Moines, for appellant mother.
Bryan J. Tingle, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Toby J. Gordon, Assistant Attorney
General, for appellee State.
Nicole Garbis Nolan of Youth Law Center, Des Moines, attorney and
guardian ad litem for minor children.
Considered by Bower, C.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.
Parents separately appeal the termination of their parental rights to their two
children, born in 2015 and 2020.1 They contend the State failed to prove grounds
for termination. They argue termination is not in the children’s best interests and
that permissive factors preclude termination. The parents also ask for more time.
We review the parents’ claims do novo. See In re A.S., 906 N.W.2d 467,
472 (Iowa 2018). “We give weight to the factual determinations of the juvenile
court but we are not bound by them. Grounds for termination must be proven by
clear and convincing evidence. Our primary concern is the best interests of the
child[ren].” In re J.E., 723 N.W.2d 793, 798 (Iowa 2006) (citations omitted).
We typically use a three-step process to review the termination of a parent’s
rights. A.S., 906 N.W.2d at 472. First, we determine whether a ground for
termination under section 232.116(1) has been established. Id. at 472–73. If a
ground for termination has been established, we then consider “whether the best-
interest framework as laid out in section 232.116(2) supports the termination of
parental rights.” Id. at 473 (citation omitted). Finally, we consider “whether any
exceptions in section 232.116(3) apply to preclude termination of parental rights.”
Id. (quoting In re M.W., 876 N.W.2d 212, 220 (Iowa 2016)).
The juvenile court terminated the parents’ parental rights to the older child
under Iowa Code section 232.116(1)(f) and to the younger child under section
232.116(1)(h). Although paragraphs (f) and (h) differ over the age of the child and
the length of removal, the final requirement of each—clear and convincing
1 An order granting disestablishment of paternity of the legal father was entered by
the district court. He was dismissed from the juvenile court proceedings.
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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—is the same. See Iowa Code
§ 232.116(1)(f)(4), (h)(4). To satisfy this element, the State must present clear and
convincing evidence to show that the child would be exposed to adjudicatory harm
if returned to the parent’s care at the time of the termination hearing. See In re
D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the term “at the present time”
to mean to mean “at the time of the termination hearing”); In re M.S., 889 N.W.2d
675, 680 (Iowa Ct. App. 2016) (noting a child cannot be returned to the custody of
the parent if doing so would expose the child to any harm amounting to a new
child-in-need-of-assistance (CINA) adjudication). The parents challenge the
evidence supporting this last element.2
The mother asserts she maintained stable housing and employment, she
participated in services throughout the vast majority of the case, and that the home
is minimally adequate to have her children returned. The father asserts he
cooperated with services as recommended by the Iowa Department of Human
Services (DHS) throughout most of the case, he maintained stable housing and
employment, that the home had the necessary furnishings and clothing for the
children, and that visits with the children went well. While this is all positive, it does
not establish the State failed to prove by clear and convincing evidence that the
children could not be returned to the parents’ home without being exposed to some
harm amounting to a new CINA adjudication. The parents, both thirty-six years
2 Although the mother does not reference paragraph (f) in her brief, it is apparent
from the context of her argument that this omission was an oversight. Under the
circumstances, we do not consider the omission as a failure to preserve error.
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old at the termination hearing, have a long history of illegal drug use spanning back
to their teenage years. The evidence at the October 1, 2020 termination hearing
established the parents’ drug use issues remained unresolved.
An edited version of the juvenile court’s history of this case follows:
The oldest child, then three years old, was removed from his
parents’ custody and placed in the custody of DHS in March 2019.
The child was found wandering outside alone and shoeless. Police
were called and could not find the child’s parent or caretaker. The
child is on the autism spectrum and was nonverbal at that time.
Approximately an hour after police were called to care for the child,
the mother called the police to report that he was missing. During
the course of the DHS child abuse assessment, the child had a hair
sample drug test and tested positive for cocaine, cocaine
metabolite—indicating ingestion, methamphetamine, PCP and
native marijuana—indicating exposure. The mother reported that
she may test positive for marijuana but nothing else. She
participated in a drug test and tested positive for PCP in March 2019.
The father also participated in a drug test during the assessment and
tested positive for PCP in April 2019. When the child was first taken
to a shelter in March 2019. The father arrived at the shelter smelling
of alcohol.
The child was adjudicated CINA.
The disposition hearing for the child was held in June 2019.
The father reported that he drank alcohol two to four times per week
but it was not a problem for him. He reported that his last use of PCP
and marijuana was March 2019. The father was charged with
operating while intoxicated twice in 2018. He completed a substance
abuse evaluation in March 2019 and reported that he had not used
marijuana for one to two months. He reported drinking alcohol every
other day but not drinking for the past two or three weeks. He did
not report any other substance use. The evaluator described the
father as guarded and dismissive. No treatment was recommended
based on the information the father provided. His sweat-patch test
from May 2019 was positive for PCP and THC.
The mother reported that she does not drink alcohol. She
reported that her last use of cocaine was December 2018, and also
reported that her last use of marijuana and PCP was March 2019.
The mother completed a sweat-patch drug test in May 2019 that was
positive for cocaine, PCP and THC. She provided urine drug screens
that were positive for PCP on June 19, June 24, July 12, July 17, and
July 21, 2019. The same drug screens were positive for marijuana
on each date except July 17, 2019 and August 5, 2019. Her urine
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drug screens were negative for all substances from August 10, 2019
through September 4, 2019.
The mother had an encouraging report from a treatment
facility on September 12, 2019. The father also had a positive report
from the treatment facility on September 10, 2019. The mother
completed substance abuse treatment in October 2019, and was
scheduled to begin continuing care. She did not attend continuing
care. On November 9, 2019, she provided a sweat-patch drug test
that tested positive for cocaine and PCP. The father completed
treatment and attended continuing care beginning November 7,
2019. He provided a sweat-patch on November 9, 2019 that was
positive for PCP. The parents tested positive for PCP again in
December 2019 and February 2020. They each tested negative for
all substances in a hair test drug screen in May 2020.
The father began mental health therapy on October 1, 2019.
He participated in three therapy sessions. He was discharged on
February 24, 2020 due to not following through with appointments.
The youngest child was born in March 2020. Neither the child
nor the mother tested positive for any illegal substances at the time
of the child’s birth. The child was removed from his parents’ custody
on April 1, 2020 and was later adjudicated CINA.
The father had one sweat-patch that was negative for all
substances and one sweat-patch that was positive for PCP in June
2020.
The mother tested positive for PCP twice in June 2020. She
had another substance abuse evaluation in September 2020. She
reported that she has had repeated positive sweat-patch drug tests.
She reported that her last use of PCP and marijuana was June 2019.
She reported that her last use of alcohol was September 2020, the
day before the assessment. No treatment was recommended for the
mother based on the information she provided. She met the criteria
for moderate phencyclidine use disorder in full sustained remission,
mild cannabis use disorder in full sustained remission, and mild
alcohol use disorder. The solution-based case (SBC) work notes
show that the SBC worker began reminding the mother in August
2020 to have a substance-abuse evaluation. She had a sweat-patch
drug screen in September 2020 that was negative for all substances.
The parents were provided many services. In a September 2020 report to
the court, a DHS worker reported she was “concerned that while the parents have
engaged services, they have not been consistent and may not have gained insight
on what has been worked on and applied it to make lasting long term changes.”
This concern was born out at the termination hearing. Asked why she had not
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reengaged in mental health therapy, the mother responded: “Conflict with
scheduling with visitation, plus work. Time-wise I just don’t have it; not to have
time for my personal self. And there was really no point for it. [The therapist] didn’t
see a point for it. Neither did I.” She found no benefit in therapy as, “It was an
hour out of my day to talk to somebody about things I already knew how to cope
with.” She denied being a victim of domestic violence. She explained one incident
resulted from two people being drunk and high. The father did not believe
substance-abuse treatment was effective for him.
The mother testified she last used illegal drugs in June or July 2019. The
father testified he last smoked PCP in May or June 2019. They claimed the later
sweat-patch drug screens testing positive for PCP resulted from environmental
factors or from sleeping on a couch contaminated with PCP smoke.
On appeal the parents mount a challenge to the positive sweat-patch test
results. They point out there were instances of positive sweat-patch test results in
the same vicinity of time negative urine drug screens were provided, and after birth
of the younger child, the blood cord results came back negative even though there
were positive sweat-patch results during the mother’s pregnancy. The parents
assert they were clean and the sweat-patch results were false positives. We have
observed that sweat patch tests are a generally reliable method for determining
drug use. See In re A.C., No. 20-0736, 2020 WL 4516075, at *2 (Iowa Ct. App.
Aug. 5, 2020); In re S.B., No. 19-1170, 2019 WL 4301591, at *3 n.1 (Iowa Ct. App.
Sept. 11, 2019); see also In re A.W., No. 18-0382, 2018 WL 2084913, at *2 (Iowa
Ct. App. May 2, 2018) (”Other courts have found that sweat-patch tests are a
generally reliable method for determining drug use.”).
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That is not to say, of course, that positive sweat patch results are
invariably a reliable indicator of drug usage. There may well be
certain instances where [persons testing positive] offer compelling
reasons to believe that positive test results from sweat patches are
erroneous. District courts should make such determinations on a
case-by-case basis.
S.B., 2019 WL 4301591, at *3 n.1 (quoting United States v. Meyer, 483 F.3d 865,
869 (8th Cir. 2007)). In this case the parents presented no compelling reasons to
believe the positive sweat-patch results were erroneous.
The juvenile court concluded,
Neither parent has addressed their substance use issues with
PCP, marijuana, or alcohol. They could have addressed these
issues through participation in substance abuse treatment and
mental health therapy. Neither parent sees any benefit in these
services. Neither has shown insight into substance abuse or how
substance abuse impacts their ability to safely parent.
....
. . . Neither parent is willing to openly discuss their substance
abuse issues or accept services to address those issues. Neither
parent can or will name their . . . specific sobriety date showing a lack
of significance of that date to the parents. The present
circumstances are not safe for the children and neither parent sees
the benefit to any change.
After our de novo review of the record, we agree with the juvenile court’s
assessment. The parents’ long history of drug use, evidence of continued drug
use during the CINA proceedings, and their negative attitude toward treatment
inspire no confidence that the parents will maintain sobriety in the long term. The
State established by clear and convincing evidence that the children could not be
returned to the parents at the time of the termination hearing without exposing the
children to any harm amounting to a new CINA adjudication.
We now turn to whether termination is in the children’s bests interests. In
determining best interests, we “give primary consideration to the child’s safety, to
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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.” Iowa
Code § 232.116(2). The “defining elements” are the child’s safety and “need for a
permanent home.” In re H.S., 805 N.W.2d 737, 748 (Iowa 2011) (citation omitted).
Neither parent makes much of a best-interests argument. The mother says the
best interests of the children is “to preserve the child parent relationship that exist
and is deeply rooted in these young children’s mind and heart.” The father disputes
the sweat-patch test results, asserts one child is bonded to his grandmother, and
points out the parents were consistent with visitation, having missed very few visits
since the children were removed. Giving the issue such short shrift does not merit
review. See State v. Mann, 602 N.W.2d 785, 788 n.1 (Iowa 1999) (explaining
random mention of an issue, without elaboration or supporting authority, is
insufficient to prompt an appellate court’s consideration). To address the issue
under these circumstances, we would be obliged “to assume a partisan role and
undertake the appellant’s research and advocacy.” Inghram v. Dairyland Mut. Ins.
Co., 215 N.W.2d 239, 240 (Iowa 1974); Soo Line R.R. v. Iowa Dep’t of Transp.,
521 N.W.2d 685, 691 (Iowa 1994) (“[R]andom mention of [an] issue, without
elaboration or supportive authority, is insufficient to raise the issue for [appellate]
consideration.”). Even had their best-interests argument been fleshed out, it would
fail. In addressing best interests, the juvenile court concluded:
It is in the best interest of the children to have certainty in their
future caregivers and home as soon as possible. The parents have
been involved with DHS and juvenile court since March, 2019 without
showing sustained sobriety or sustained willingness to address their
sobriety. Termination of parental rights is in the children’s best
interest so that permanency can be established for these very young
children.
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We agree.
The parents were offered extensive services to correct the circumstances
that caused removal of the children but had not yet remedied those issues. The
parents have simply not progressed to a point at which their children can be
returned to their care. Their substance use presents a clear danger to the
children’s safety. See In re A.B., 815 N.W.2d 764, 776 (Iowa 2012) (“[A]n
unresolved, severe, and chronic drug addiction can render a parent unfit to raise
children.”). Thus the element of safety supports termination. See id. (“No parent
should leave his small children in the care of a meth addict—the hazards are too
great.” (citation omitted)). And, “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.” Id. at 777 (quoting In re P.L., 778 N.W.2d 33, 39 (Iowa 2010)). We
conclude the parents have been given ample time to get their affairs in order. The
children’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 children
are both placed in foster-to-adopt homes.
The parents seek to avoid termination through the section 232.116(3)
permissive factors, which provide that the court “need not terminate the
relationship between the parent and child” in some cases. Application of the
factors in section 232.116(3) is permissive rather than mandatory, and it depends
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on the facts of each case and the children’s best interests. A.S., 906 N.W.2d at
475. The parents bear the burden of establishing an exception to termination. See
id. at 476.
Both parents reference or allude to section 232.116(3)(c). The section
provides 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.” Iowa Code § 232.116(3)(c). The mother argues she
had a bond with the older child such that termination of her parental rights would
negatively impact the child. She states she was developing a bond with the
younger child. The father mentions the section but mounts no argument. In any
event, at the termination hearing the father denied the older child was on the autism
spectrum and stated he had no relationship with the child. There is precious little
evidence he had a bond with the younger child. The record does not support
application of the statutory permissive factor to avoid termination of the parents’
parental rights.
Lastly, the parents request more time. Children are not equipped with
pause buttons—their all-important days of childhood cannot be stopped to await
the day their mother or father is ready to begin appropriate parenting. See In re
A.M., 843 N.W.2d 100, 112 (Iowa 2014) (holding that the court must not deprive
children of permanency on the hope that someday the parent will be able to provide
a stable home); In re L.L., 459 N.W.2d 489, 495 (Iowa 1990) (“Children simply
cannot wait for responsible parenting.”); In re A.C., 415 N.W.2d 609, 613 (Iowa
1987) (“The crucial days of childhood cannot be suspended while parents
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experiment with ways to face up to their own problems.”). Once the grounds for
termination have been proved, time is of the essence. See In re Z.P., 948 N.W.2d
518, 523-24 (Iowa 2020) (stressing importance of statutory time frames); A.C., 415
N.W.2d at 614 (“It is unnecessary to take from the children’s future any more than
is demanded by statute.”); see also In re R.J., 436 N.W.2d 630, 636 (Iowa 1989)
(noting that once the time for reunification set by the legislature has expired,
“patience on behalf of the parent can quickly translate into intolerable hardship for
the children”).
Given the parents’ track record in response to services and negative
attitudes toward treatment, we are unable to conclude “the need for removal . . .
will no longer exist at the end of the additional six-month period.” Iowa Code
§ 232.104(2)(b). The parents have presented us nothing to show that
circumstances would be any different six months down the road than they are now.
We conclude the State presented sufficient evidence to support termination
of the parents’ parental rights and that termination is in the best interest of the
children. We decline to apply any permissive factor to avoid termination. We reject
the parents’ request for more time. We therefore affirm the juvenile court’s
termination of the parents’ parental rights to their two children.
AFFIRMED ON BOTH APPEALS.