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

IN THE COURT OF APPEALS OF IOWA
No. 20-1674
Filed August 18, 2021
IN THE INTEREST OF S.H. and S.G.,
Minor Children,
T.H., Father of S.H.,
Appellant,
M.G., Father of S.G.,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,
District Associate Judge.
Two fathers separately appeal from the termination of their parental rights
to their children. AFFIRMED ON BOTH APPEALS.
Andrea B. McGinn, Van Meter, for appellant father of S.H.
David Barajas of Macro & Kozlowski, LLP, West Des Moines, for appellant
father of S.G.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Magdalena Reese of Juvenile Public Defender, Des Moines, attorney and
guardian ad litem for minor children.
Considered by Tabor, P.J., Greer, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
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MAHAN, Senior Judge.
Two fathers separately appeal from the termination of their parental rights
to their children, S.H., born in 2016, and S.G., born in 2018.1 The father of S.H.
claims termination was not in his child’s best interests and the juvenile court erred
by not placing the child in a guardianship with the paternal grandmother. The
father of S.G. contends termination was not in his child’s best interests and the
State failed to prove the grounds for termination cited by the juvenile court. We
affirm on both appeals.
I. Background Facts and Proceedings
This family came to attention of the department of human services in April
2018, when S.G. tested positive for THC at birth. In May, the mother moved to
Minnesota with the children, and the department ended its involvement. Shortly
thereafter, unbeknownst to the department, the mother and children returned to
Iowa. In August, Iowa law enforcement arrested the mother, who was a convicted
sex offender in Minnesota, for violating sex offender registration requirements.
The department became involved with the family again, and the mother provided
a drug screen that was positive for methamphetamine and cocaine. S.G.’s father
was incarcerated on a drug trafficking conviction. S.H.’s father lived in Minnesota,
had a criminal history for domestic-assault and drug-related crimes, and had an
active warrant for domestic assault. The children were adjudicated in need of
assistance and removed from the mother’s care.
1 The mother filed an appeal and a voluntary dismissal; her appeal was dismissed.
3
The children were initially placed with S.G.’s half-sibling under department
supervision, but that placement was modified in March 2019, upon the department
learning the mother was taking S.H. to Minnesota with S.H.’s father, in violation of
a no-contact order and a court order authorizing only supervised visitation for the
parents. At that time, the Minnesota department had an open assessment relating
to S.H.’s father and another child, due to reports that he was using heroin and
living in his car with that child. The children were placed in separate foster homes.
The court entered a permanency order in September 2019, noting progress
by the children’s fathers. S.G.’s father was out of prison, engaged in visitation,
had transitioned from a halfway house to his own home, and had provided “clean”
drug screens for the department and his probation officer. S.H.’s father was out of
prison, engaged in therapy, and “report[ed a] sobriety date [of] March 2019.” The
mother and S.H.’s father requested the children be placed with S.H.’s paternal
grandmother, but the department had not approved that placement due to “erratic
behaviors” by the paternal grandmother and her failure to complete a drug screen.2
The court granted the parents a six-month extension to continue to work toward
reunification.
In a December 2019 permanency review order, the court noted the
grandmother had “not provided a drug screen as requested,” “her behavior [wa]s
erratic and defensive,” and the court could not “assure her cooperation or
protective capacity based on her actions.” The court further noted S.H.’s father
2 In October 2019, the guardian ad litem visited the paternal grandmother’s home
in Minnesota. The guardian ad litem recommended placement of S.H. with the
paternal grandmother “subject to” the grandmother providing “a negative drug
screen.”
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had “relapsed on heroin since the last hearing” and was “not providing drug
screens as requested.” The court instructed the department to “develop an
appropriate concurrent plan” for S.H. However, S.G.’s father “continue[d] to be
engaged fully in visits and services.” The court ordered S.G.’s father’s visitation to
“increase and [the] parties [to] develop an appropriate transition plan.” The goal
remained reunification for both children.
Unfortunately, gains toward stability by S.G.’s father were short-lived. In
January 2021, he relapsed on marijuana and cocaine. He continued to miss drug
screens the next several months, and his fiancé also failed to provide a drug
screen. The court’s March 2021 permanency review order noted concern “that he
chose to use knowing that he was working towards reunification” and stated he “is
minimizing the impact of his cocaine usage and his substance abuse history.” The
court ordered his visits be reverted to fully supervised. The court noted S.H.’s
father’s “situation has also worsened since the extension was granted.” In addition
to relapsing on heroin, S.H.’s father “ha[d] continued to use,” his substance-abuse
evaluation recommended inpatient treatment, and he was “not consistent” with his
visits with S.H. The court directed the State to initiate termination proceedings.
The termination hearing took place over three days in September and
October 2020. On October 7, after receiving evidence of a clean drug screen by
the paternal grandmother, the court ordered that S.H. be placed in a foster care
placement with the paternal grandmother, under department supervision. The
record before the juvenile court indicated the children had been removed since
August 2018, and visits with the parents were fully supervised. The department
caseworker noted the parents had acknowledged recent relapses and failed to
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provide consistent drug screens. In light of these and other concerns, the
department and the guardian ad litem recommended termination of parental rights
as to both children.
In December 2020, the court entered an order terminating the parental
rights as to both children. Specifically, the court ordered termination of S.H.’s
father’s parental rights pursuant to Iowa Code section 232.116(1)(b), (e), and (f)
(2020), and S.G.’s father’s parental rights pursuant to section 232.116(1)(h). The
fathers separately appeal.
II. Standard of Review
Appellate review of termination-of-parental-rights proceedings is de novo.
In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). 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).
III. Discussion
On appeal, S.H.’s father claims termination was not in his child’s best
interests and the juvenile court erred by not placing the child in a guardianship with
the paternal grandmother. The father of S.G. contends termination was not in his
child’s best interests and the State failed to prove the grounds for termination cited
by the juvenile court. We address these arguments in turn.
A. S.H.’s Father’s Appeal
As the juvenile court observed, S.H.’s father was unsuccessfully discharged
from inpatient treatment in early September 2020 “due to relapsing in treatment.”
And, at the termination hearing, the father acknowledged he had provided a
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positive drug screen for “opiates and methamphetamine” since his release from
inpatient treatment. With regard to his sobriety, he testified he was “taking it one
day at a time” and he was starting outpatient treatment “[t]omorrow.” He stated his
fiancé was also in inpatient treatment for “crack” or “methamphetamine.” His last
electronic visit with S.H. was in August 2020, and his last in-person visit was in
November 2019. He acknowledged that he had pending criminal charges, but
stated, “[I]t wasn’t me. So when I go to court, it will be dismissed.” In addition to
these concerns, the court noted, “He has been expected to address his history of
domestic violence in therapy,” but “[t]he court has no evidence that he has
addressed domestic violence.” Under these facts and circumstances, we find
termination of S.H.’s father’s parental rights is in the child’s best interests. See In
re A.S., 906 N.W.2d 467, 474 (Iowa 2018) (citing Iowa Code § 232.116(2)).
We are also not persuaded by the claim that the court erred in declining to
place S.H. in a guardianship with the paternal grandmother rather than terminating
parental rights. As a general matter, “a guardianship is not a legally preferable
alternative to termination.” Id. at 477 (quoting In re B.T., 894 N.W.2d 29, 32 (Iowa
Ct. App. 2017)). That notion rings true in this case. The department caseworker
testified she last had contact with S.H.’s father in “June of 2020.” And S.H. had
very recently been placed in the paternal grandmother’s care. As the court
observed:
[S.H.’s father] has struggled with his addiction since the beginning of
this case. He has not been a consistent parental figure to his child.
It is not in [the child’s] best interests to continue to suspend the
crucial days of childhood while the parents experiment with ways to
face up to their own problems. . . . [S.H.] is now placed with his
grandmother . . . . She has testified that she will adopt if termination
happens. He is able to be with family.
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S.H. needs and deserves stability. Although it was not an easy road to placement
with his paternal grandmother, by all accounts, S.H.’s needs are being met in his
grandmother’s care and he is integrated into her home. That placement provides
hope for future long-term stability for the child. We agree a guardianship is not an
appropriate alternative to termination in this case.
B. S.G.’s Father’s Appeal
S.G.’s father challenges the statutory grounds for termination. Iowa Code
section 232.116(1)(h) requires proof of several elements conceded by the father,
as well as proof the child could not be returned to his custody. The father contends
the evidence did not establish S.G. could not be returned to his care at the present
time. According to the father, “The [d]epartment’s main reason for requesting
termination of [his] rights was due to his alleged substance abuse,” but he “had
one relapse in January of 2020, obtained a substance abuse evaluation which
recommended no treatment, [and] complied with [drug testing] through his parole
officer before the program was stopped due to Covid-19.” He claims that “[a]t the
time of the termination of parental rights trial [he] was fully able, capable, and
willing to have S.G. placed in his care.”
Indeed, a caseworker testified that the department “had begun progressing
[the father’s] visits” until the “setback in January of 2020 when he relapsed on
cocaine.” But she further stated that, “since that time, we haven’t been able to get
[the father] to complete a drug screen.” In March 2020, the court ordered that
S.G.’s father “shall participate in random drug screens to include the sweat patch.”
Thereafter, in June, the father refused a sweat-patch test, despite understanding
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that his refusal would be considered “a positive drug screen.” He acknowledged
he had declined to give “three or four” additional drug screens since the last court
hearing. His fiancé had also refused a drug screen. In August, the department
learned the father had not been providing drug screens for his parole officer
because he “had told her he was doing ‘the patch.’” The caseworker opined “this
was not truthful as [the father] has not been willing to comply with sweat patch drug
screens.” A different caseworker noted the father’s failure to provide drug screens
was “not just a logistical issue,” and she expressed “concerns that drug screens
have not consistently been done” with regard to the “longevity” of his role as a
“primary parent.”3 Based on these and the other facts detailed above, we concur
with the court’s assessment that S.G. could not be returned to the father’s care at
the time of the termination hearing. Iowa Code section 232.116(1)(h) was
satisfied.
Termination must also serve the child’s best interests. See Iowa Code
§ 232.116(2). We acknowledge the bond shared between S.G. and the father and
the testimony regarding the parenting ability shown by the father during visitations.
But ultimately, as the department noted, “[S.G.’s father] has a long history of
criminal involvement in illegal substances. He has not been able to demonstrate
that he can maintain long-term sobriety in the community.” The child is in need of
permanency. We conclude termination is in the child’s best interests, and no
permissive statutory exception should be applied to preclude termination.
3S.G.’s father testified that he has eleven children, who had all lived with their
mothers, and he had not been a primary parent for any of those children.
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Having addressed the issues raised on the fathers’ appeals, we affirm the
termination of their parental rights.
AFFIRMED ON BOTH APPEALS.