In the Interest of O.H. and J.Y., Minor Children ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 23-0396
Filed May 24, 2023
IN THE INTEREST OF O.H. and J.Y.,
Minor Children,
S.J., Mother,
Appellant
W.H., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda,
District Associate Judge.
A mother appeals the termination of her parental rights to two children. A
father separately appeals the termination of his parental rights to one of the
children. AFFIRMED ON BOTH APPEALS.
Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for appellant
mother.
Meegan M. Keller, Altoona, for appellant father.
Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney
General, for appellee State.
Dusty Clements of Clements Law & Mediation, Newton, attorney and
guardian ad litem for minor children.
Considered by Schumacher, P.J., and Chicchelly and Buller, JJ.
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CHICCHELLY, Judge.
S.J. appeals the termination of her parental rights to two children, O.H. and
J.Y. W.H. separately appeals the termination of his parental rights to O.H.1 Both
parents maintain the statutory grounds are unsatisfied, termination is not in the
best interests of the children, an exception should be granted due to the parent-
child bonds, and a guardianship should be established. The mother also requests
an exception based on J.Y.’s placement with his father. Upon our de novo review,
we affirm termination of both parents’ parental rights to their respective children.
I. Background Facts and Proceedings.
J.Y. and O.H. were born in 2013 and 2016, respectively. In August 2020,
the Iowa Department of Human Services2 received allegations of
methamphetamine use by the parents. After delaying eight days, the parents
completed urine drug screens that returned negative for illegal substances. Shortly
thereafter, the mother was arrested for possession of methamphetamine. A hair
test was performed and returned positive for methamphetamine. The mother then
admitted to relapsing and actively using methamphetamine. In October, the
parents stipulated to O.H. and J.Y.’s adjudication as children in need of assistance
(CINA). The children were allowed to remain in the parents’ custody under the
department’s supervision.
In December, the parents stipulated to the children’s continued adjudication
as CINA. In April 2021, the department learned of an incident of domestic violence
1 No action was taken to terminate the parental rights of J.Y.’s father. References
to the father and parents will refer to O.H.’s father unless otherwise indicated.
2 The department is now known as the Iowa Department of Health and Human
Services.
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by the father in J.Y.’s presence, which resulted in a founded report for denial of
critical care. The father then refused to drug test for nearly a month before
complying with a hair test that returned positive for methamphetamine. On
May 11, the court removed O.H. from her father’s custody due to the drug use and
domestic violence. Later in May, the child’s maternal grandmother reported that
the father violated the no-contact order in place against him. The parents
stipulated that the children remained CINA again in July. In August, the
department received allegations that the mother was using methamphetamine
while caretaking for the children. On August 10, both children were removed from
the mother’s custody due to behavioral indicators of drug use, failure to cooperate
with drug testing, and additional allegations of domestic violence in front of the
children. The father was later convicted of assault causing injury for an incident
against the mother that took place on August 6. O.H. was placed with her paternal
aunt, while J.Y. was placed with his father. Since then, both children have
remained in these placements.
The mother and father continued not to cooperate with drug testing through
the remainder of 2021 and into 2022. The parents stipulated to the continued CINA
adjudication in January 2022. In February, the mother reported a domestic assault
to the police and requested a no-contact order against the father. In May, a social
worker for the department observed a bruise on the mother’s forehead and a black
eye. The mother shared that she had been with the father a few times despite the
no-contact order. The father obtained a mental-health evaluation in May but was
reportedly not interested in the recommended treatment. On June 1, the father
was arrested for violating the no-contact order with the mother and later pled guilty.
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In July, the father was advised that treatment facilities were attempting to contact
him regarding open beds but getting no answer. In August, a social worker for the
department contacted a substance-abuse treatment center where the father said
he was attending outpatient services but learned he was not a client there.
In September, the State filed a petition to terminate the parents’ parental
rights. The State also filed a trial information in September, charging the father
with domestic abuse assault and strangulation with bodily injury for an incident
involving a paramour. The mother admitted to using methamphetamine in
September, while the father admitted to using marijuana around that time. The
father was also arrested in September for assault, interference with official acts,
criminal mischief, burglary, and attempted burglary. The charges were still
pending at the time of the termination hearing. As the district court described, the
father appeared in police videos “to be under the influence of something or
experiencing a mental-health breakdown resulting in extremely bizarre and
concerning behaviors.”
On December 11, both parents submitted sweat patches for tests that
returned positive for methamphetamine. The parents maintain the results were
false positives. The district court specifically found their explanations or
protestations to not be credible. The father completed an independent hair test in
January 2023 that came back positive as well. A January update from the mother’s
substance-abuse counselor indicates that the mother reengaged3 with treatment
3 The mother previously attended treatment with this facility from October 2020 to
March 2022. At the time of discharge, the mother was not open to making some
of the recommended changes and left to start services in another location. She
tried out a few different facilities in the interim.
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on December 14, 2022, and had been consistent with her attendance. Her urine
drug screens provided in conjunction with treatment since then have been
negative. The counselor indicated the mother was more open and honest
concerning her mental health and abuse and that the mother “appears more open
to taking the steps to protect herself and her children.”
The court held a termination and permanency hearing in January 2023. The
mother testified on the second day of the hearing that the father took her car the
week prior without her permission and had not yet returned it. She shared that
their relationship had been on-again, off-again and that she did not call the police
every time he was physical with her. She further testified that the father stayed
with her on occasion or with other friends, and the father agreed that he did not
have stable housing. In February, the court entered an order terminating the
mother’s and father’s respective parental rights. Both parents filed timely appeals.
II. Review.
Our review of termination proceedings is de novo. See In re C.B., 611
N.W.2d 489, 492 (Iowa 2000). “We will uphold an order terminating parental rights
where there is clear and convincing evidence of the statutory grounds for
termination.” In re T.S., 868 N.W.2d 425, 431 (Iowa Ct. App. 2015). “Evidence is
clear and convincing when there is no serious or substantial doubt as to the
correctness of the conclusions of law drawn from the evidence.” Id. We give
weight to the district court’s fact findings, especially those about witness credibility,
although they are not binding. See Iowa R. App. P. 6.904(3)(g); C.B., 611 N.W.2d
at 492.
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III. Discussion.
The principal concern in termination proceedings is the children’s best
interests. In re L.T., 924 N.W.2d 521, 529 (Iowa 2019). Iowa courts use a three-
step analysis to review the termination of parental rights. In re A.S., 906 N.W.2d
467, 472 (Iowa 2018). Those steps include whether: (1) grounds for termination
have been established, (2) termination is in the children’s best interests, and (3) we
should exercise any of the permissive exceptions to termination. Id. at 472–73.
We review the parents’ arguments regarding each step in turn.
A. Grounds for Termination.
Here, the district court found the State proved by clear and convincing
evidence that termination of the mother’s and father’s parental rights was
appropriate under paragraphs (d), (e), and (f) of Iowa Code section 232.116(1)
(2023). We may affirm if the record supports termination on any one ground. See
In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). While both parents name the
relevant paragraphs on appeal, neither substantively alleges the respective
children could be returned to their custody at the time of the termination hearing,
nor any of the other elements of this statutory ground. See Iowa Code
§ 232.116(1)(f)(4) (requiring “clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents as provided
in section 232.102”); see also In re D.W., 791 N.W.2d 703, 707 (Iowa 2010)
(interpreting “at the present time” to mean “at the time of the termination hearing”).
Therefore, both parents’ claim regarding paragraph (f) is waived, and we may
affirm on that ground without further analysis due to their failure to challenge this
ground for termination. See In re N.N., No. 21-1978, 2022 WL 610318, at *1 (Iowa
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Ct. App. Mar. 2, 2022) (holding failure to challenge one of the grounds for
termination results in waiver of any claim of error on that ground).
Even if an argument was advanced, we would find O.H. and J.Y. could not
be returned to their mother’s custody, nor O.H. to her father’s custody, at the time
of the hearing. Accordingly, we affirm the district court’s conclusion that a ground
for termination has been established under Iowa Code section 232.116(1)(f).
B. Best Interests.
To evaluate best interests, “the court shall 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.” Iowa Code § 232.116(2). The “defining elements” of the best-
interests analysis 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).
Here, neither parent has adequately demonstrated their ability to be stable
and sober parents. They have not consistently attended substance-abuse
treatment or complied with drug testing. As the district court noted, the mother has
several factors in her favor, such as full-time employment and stable housing, as
well as making child-support payments for J.Y. and attending treatment regularly
for the past two months. Although we certainly commend these achievements, we
find these actions are insufficient and too late. Iowa law affords limited patience
for parents to demonstrate that children can safely be returned to their custody.
See C.B., 611 N.W.2d at 494 (discussing the age-associated timelines for a
determination that the needs of a child would be promoted by termination of
parental rights). Similarly, we cannot say that the father has demonstrated promise
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towards offering a safe and permanent home for O.H. He has obtained
employment and been appropriate during visits, but he has no permanent
residence and has not consistently engaged in treatment. We will not deprive O.H.
of permanency based on the hope that someday the father will be able to provide
her with a stable home. See In re A.M., 843 N.W.2d 100, 112 (Iowa 2014).
At the time of the termination hearing, the children had been removed from
the parents’ custody for more than one year, and both parents remained restricted
to fully supervised visits. Furthermore, the children are each in stable homes with
their respective placements. Each placement presents a long-term option and
offers the opportunity for the children to maintain a relationship with each other.
See Iowa Code § 232.116(2)(b); In re M.W., 876 N.W.2d 212, 225 (Iowa 2016)
(noting a child’s favorable integration into a foster placement supports finding
termination is in the child’s best interests). On this record, clear and convincing
evidence shows that termination of both the mother’s and father’s parental rights
is in the respective children’s best interests.
C. Exceptions.
Both parents argue that an exception to termination should be granted
because the parent-child bonds outweigh the need for termination. See Iowa Code
§ 232.116(3)(c) (providing a discretionary exception to termination when “[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”). The
provisions of section 232.116(3) are “permissive, not mandatory,” and the parent
bears the burden to prove the applicability of an exception to termination. A.S.,
906 N.W.2d at 475 (citation omitted). A social worker for the department testified
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that the children are very bonded to the parents and share appropriate and loving
relationships. However, we do not find a parent-child relationship so strong that it
outweighs the need for termination in either parent’s case. See In re W.M., 957
N.W.2d 305, 315 (Iowa 2021) (finding the existence of a bond is insufficient when
parents have “failed to provide the clear and convincing evidence necessary to
show that, on balance, that bond makes termination more detrimental than not”).
The mother also argues for an exception based on J.Y. being in his father’s
custody. See Iowa Code § 232.116(3)(a) (stating the court “need not terminate
the relationship between the parent and child if the court finds . . . [a] relative has
legal custody of the child”). Again, this exception is discretionary and depends on
the unique circumstances of each case. A.S., 906 N.W.2d at 475. Here, we
decline to preserve the mother’s parental rights based on the child’s familial
placement. “An appropriate determination to terminate a parent-child relationship
is not to be countermanded by the ability and willingness of a family relative to take
the child.” Id. (citation omitted). We instead look to the child’s best interests. See
id. Having done so, we conclude J.Y.’s best interests are served by termination.
D. Guardianship.
Both parents argue the court should have placed O.H. in a guardianship
with her paternal aunt.4 Our courts do not prefer guardianship over adoption. Id.
at 477. Again, if termination is appropriate, a relative’s willingness to take the child
4 The parents also make passing references to needing more time to achieve
reunification, seemingly in the context of the requested guardianship for O.H. or
the familial-custody exception for J.Y. They do not directly request a formal
extension, nor did they do so during the termination hearing. Even if they did, we
would not find an extension appropriate in this case. See Iowa Code
§ 232.104(2)(b).
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will not change that. See id. at 475. The deciding factor is the child’s best interests.
See id. As the district court observed:
[G]iven the volatile nature of the parents’ relationship with each other
as well as the volatile nature of the parents’ relationship with the
proposed guardian, the circumstances are not conducive to a
successful and uneventful guardianship. Given the child’s age, the
parents’ overall lack of consistency and progress for the past two
years, and the volatile nature of the relationships involved, a
guardianship is not in the child’s best interest and will not provide her
with the stability and permanency which she needs.
Having considered O.H.’s best interests, we decline to order a guardianship.
IV. Disposition.
We find there is a statutory ground for termination and no exception should
be applied for the parent-child bonds, relative custody, or a guardianship. Because
it is in the children’s best interests, we affirm termination of the mother’s and
father’s parental rights to the respective children.
AFFIRMED ON BOTH APPEALS.