In the Interest of A.B. & S.B., Minor Children, S.B., Father

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
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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.
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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
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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
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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.
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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”).