In re Interest of S.S., No. 20-1608

CourtCourt of Appeals of Iowa
Writing for the CourtDOYLE, Judge.
Citation958 N.W.2d 613 (Table)
Parties In the INTEREST OF S.S. and S.S., Minor Children, N.S., Mother, Appellant, S.S., Father, Appellant.
Docket NumberNo. 20-1608
Decision Date17 March 2021

958 N.W.2d 613 (Table)

In the INTEREST OF S.S. and S.S., Minor Children,

N.S., Mother, Appellant,

S.S., Father, Appellant.

No. 20-1608

Court of Appeals of Iowa.

Filed March 17, 2021

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.

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 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 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 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

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