In the Interest of N.B., Z.B., and L.B., Minor Children ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1684
Filed February 22, 2023
IN THE INTEREST OF N.B., Z.B., and L.B.,
Minor Children,
K.B., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Brent Pattison, District
Associate Judge.
A father appeals the termination of his parental rights. AFFIRMED.
Heidi Miller of Gribble, Boles, Stewart & Witosky Law, Des Moines, for
appellant father.
Brenna Bird, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Bryan Webber of Carr Law Firm, P.L.C., Des Moines, guardian ad litem for
minor children.
ConGarry Williams of Juvenile Public Defender, Des Moines, attorney for
minor children.
Considered by Schumacher, P.J., Ahlers, J., and Mullins, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
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MULLINS, Senior Judge.
A father appeals the termination of his parental rights to his three children
under Iowa Code section 232.116(1)(f) (2022).1 He challenges the sufficiency of
the evidence supporting the ground for termination and argues termination is
contrary to the children’s best interests due to the closeness of the parent-child
bonds.
I. Background Facts and Proceedings
The children, born in 2014, 2017, and 2018, came to the attention of the
Iowa Department of Health and Human Services (DHHS) in May 2021. The
parents consented to temporary removal of the children based on “unaddressed
substance abuse.” The initial concerns focused on the care and environment
provided by the mother and her boyfriend—which involved homelessness, drug
use, and domestic violence—but the father also admitted to “methamphetamine
use within the last month.” The parents agreed to continued removal at a
subsequent hearing due to “a combination of homelessness and substance abuse
issues.” The parents later stipulated to adjudication under Iowa Code
section 232.2(6)(c)(2) and (n) (2021).
The father underwent a substance-abuse evaluation in late June and began
extended outpatient treatment in July. He provided negative drug screens at the
time of both his evaluation and commencement of treatment. However, the father
only attended one treatment session about a week later and then discontinued
1 The mother’s rights were also terminated. She does not appeal.
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attending thereafter. He was unsuccessfully discharged for that reason in
September.
By the time of the dispositional hearing in mid-September, the DHHS had
received reports from the father’s family members that he exhibited behavioral
indicators of methamphetamine use and that he was dating a known
methamphetamine user, despite the fact that the father’s own sobriety “action plan”
acknowledged “being around the wrong people” who “have drugs” was a problem
situation for him. In its dispositional order, the juvenile court noted concern for the
father’s discharge from treatment for lack of attendance and his family’s suspicions
that he was using, which resulted in the children’s relative placement being
unwilling to supervise visits. Later in September, the father was arrested for
operating while intoxicated following a vehicle collision, and the arresting officer
reported the father was under the influence of marijuana.
The father completed a second substance-abuse evaluation in early
December, which again resulted in a recommendation that he engage in extended
outpatient treatment. The father scheduled an initial admission appointment, but
he ultimately did not attend that appointment. He then scheduled the appointment
to occur on a later date, but he did not attend that appointment either. He was
again unsuccessfully discharged. On the bright side, by the time of the review
hearing in mid-December, the father was visiting the children nearly every day.
But the father had also not engaged in mental-health treatment despite having a
history with depression, and his housing and employment situations remained
unstable.
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A permanency hearing was held in late June 2022. In its ensuing order, the
court observed the father “has not engaged in the substance abuse treatment he
needs” and “has also not participated in the drug screens as requested by the”
DHHS. Specifically, the evidence shows the father declined to participate in
several offered drug screens because he did not have valid identification, and the
father’s brothers also continued to report their observance of behavioral indicators
of drug use. The court was also concerned with the father’s minimalization of his
substance-abuse problem and concluded the father was only flirting with attending
treatment because DHHS demanded it. Given the father’s ongoing indicators of
drug use, the court declined to grant an extension and changed the permanency
goal to termination of parental rights. But in doing so, the court specifically advised
the father that he “still has some time to show some sobriety.” While the father
reported he intended to engage in treatment the following month, he did not do so.
The State filed its termination petitions in July, and a hearing on the petitions
was held in August. The social worker testified she began requesting the father to
submit to drug screens in March 2022 once it became clear he would not
meaningfully participate in substance-abuse treatment. But the father never
submitted to these drug tests because, according to him, he did not have valid
identification. In or about May, the father reported he would be getting his
identification, but he later reported it got “lost in the mail.” The worker also testified
the father’s housing and employment circumstances remained unstable and he
had no ability to support the children if they were placed in his custody.
The father testified he has been staying with his “on and off” girlfriend in a
one-bedroom apartment for “a few days,” and he still does not have valid
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identification that would allow him to undergo drug testing. He also testified he
does not have transportation that would allow him to go anywhere to provide a
sample for a drug test. And he agreed he did not attend the substance-abuse
evaluation in July or schedule another one. But he submitted he has been “[c]lean
and sober for at least six months.” He also agreed he has no employment or
income.
In its ruling, the court terminated the father’s parental rights under Iowa
Code section 232.116(1)(f) (2022). In determining the children could not be
returned to the father’s custody, the court found the father’s claim of sobriety was
not credible, highlighting his admitted use at the onset of the case, failure to
participate in treatment to address his use, ongoing behavioral indicators of use as
observed by family members, and evasion of drug testing. The court found
termination was in the children’s best interests and none of the permissive
exceptions to termination were proven.
The father appeals.
II. Standard of Review
We review termination proceedings de novo. In re A.B., 956
N.W.2d 162, 168 (Iowa 2021); In re C.Z., 956 N.W.2d 113, 119 (Iowa 2021). Our
primary consideration is the best interests of the children, In re J.E., 723
N.W.2d 793, 798 (Iowa 2006), the defining elements of which are the children’s
safety and need for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa
2011).
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III. Discussion
The court applies a three-step analysis in conducting its de novo review of
terminations of parental rights, asking whether (1) a statutory ground for
termination is satisfied, (2) the children’s best interests are served by termination,
and (3) a statutory exception applies and should be exercised to preclude
termination. See In re L.B., 970 N.W.2d 311, 313 (Iowa 2022).
For his challenge to the sufficiency of the evidence supporting termination
under section 232.116(1)(f), the father only challenges the final element—that the
children could not be returned to his custody at the time of the termination hearing.
See Iowa Code § 232.116(1)(f)(4) (requiring clear and convincing evidence that
children cannot be returned to parental custody “at the present time”); In re
D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the statutory language “at
the present time” to mean “at the time of the termination hearing”). The father
highlights his claimed sobriety of six months, alleged stable housing, and ongoing
contact with the children.
First, even if we didn’t afford the juvenile court the deference it is due as to
credibility assessments, we would agree the father’s claimed sobriety is not
credible. He never meaningfully participated in treatment aimed at alleviating his
substance abuse. And he never submitted to requested drug screening. While
the father placed the blame for this on the DHHS and his lack of valid identification,
he agreed his lack of identification was a circumstance entirely within his control.
And most telling is the ongoing reports of behavioral indicators of use by the
father’s own brothers. Second, the father’s housing situation encompassing a few
days with an on-again-off-again girlfriend cannot be described as stable. And while
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the father submitted they could make room for the children to reside in the living
room, this one-bedroom apartment was clearly not a suitable living arrangement
for two adults and three children. On the third point, we do commend the father
for maintaining contact with the children throughout the proceedings, but that does
not equate to a finding that the children could be returned to his custody.
At the end of the day, the evidence was clear and convincing that these
children could not be returned to the father’s custody. He has unaddressed
substance-abuse issues. While his mental health was not a focal point of the
proceedings, he has unaddressed issues on that front as well. The father does
not have a stable housing environment that the children could be received into,
and he has no employment or income and, as a result, no ability to provide for
these children. All told, we find the State met its burden to prove the children could
not be returned to the father’s custody at the time of the termination hearing.
Next, the father argues termination is contrary to the children’s best
interests, see Iowa Code § 232.116(2), due to the detrimental effect resulting from
severance of the close parent-child bonds. See id. § 232.116(3)(c). Properly
considering these arguments step by step, we first address the children’s best
interests. See In re A.S., 906 N.W.2d 467, 472–73 (Iowa 2011) (discussing three-
step termination framework). In determining whether termination is in the best
interests of children, we “give primary consideration to the child[ren]’s safety, to
the best placement for furthering the long-term nurturing and growth of the
child[ren], and to the physical, mental, and emotional condition and needs of the
child[ren].” Iowa Code § 232.116(2).
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For his best-interests claim, the father asserts the State did not make “any
showing that the children are suffering due to uncertainty in this case,” so
termination should be avoided. But, as noted, safety and the need for a permanent
home are the defining elements of a child’s best interests. H.S., 805 N.W.2d
at 748. And “[i]t 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.” A.S., 906 N.W.2d at 474 (alteration in original) (citation
omitted). While we acknowledge concrete permanency options have not been put
in place for all three children, “whatever the future holds for these children, it will
be better than the ‘parentless limbo’ they have already been in” since removal. In
re R.E., No. 22-1665, 2022 WL 17826929, at *2 (Iowa Ct. App. Dec. 21, 2022)
(citation omitted). We agree with the juvenile court that it is time for these children
to have a chance at permanency and, as such, termination is in the children’s best
interests.2 See In re Z.P., 948 N.W.2d 518, 525 (Iowa 2020).
Turning to the permissive exception cited by the father, Iowa Code
section 232.116(3)(c) authorizes the court to forgo termination when it “would be
detrimental to the child[ren] . . . due to the closeness of the parent-child
relationship.” The application of a statutory exception to termination, if one exists,
2 While the father submits termination of his parental rights will also terminate the
sibling relationship between one of the children and the other two, that is not
accurate. True, at the time of the termination hearing, one of the children was
placed with a paternal relative along with the children’s half-sibling, while the other
two children were placed in foster care. While it was unlikely the relative could
serve as a permanent placement for the one child, DHHS intended to explore
foster placements for that child closer in proximity to the other two children that
would allow for fostering of the children’s sibling relationships.
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is “permissive, not mandatory.” In re M.W., 876 N.W.2d 212, 225 (Iowa 2016)
(quoting In re A.M., 843 N.W.2d 100, 113 (Iowa 2014)). And “the parent resisting
termination bears the burden to establish an exception.” A.S., 906 N.W.2d at 476.
While we acknowledge a bond between the father and children, we conclude the
father failed to meet his burden to show “that the termination would be detrimental
to the child[ren] . . . due to the closeness of the parent-child relationship[s].” That
is not to say the children will not face some negative consequences following
termination; they clearly will. We simply are unable to conclude the disadvantages
posed by termination overcome the father’s deficiencies and would cause
detriment to the children. See D.W., 791 N.W.2d at 709. We agree with the
juvenile court that this exception does not apply.
IV. Conclusion
We affirm the termination of the father’s parental rights.
AFFIRMED.