In re J.H., 22-1290

CourtCourt of Appeals of Iowa
Writing for the CourtGREER, Judge.
PartiesIN THE INTEREST OF J.H. and J.H., Minor Children, J.H., Father, Appellant, A.T., Mother, Appellant.
Docket Number22-1290
Decision Date17 November 2022

IN THE INTEREST OF J.H. and J.H., Minor Children, J.H., Father, Appellant, A.T., Mother, Appellant.

No. 22-1290

Court of Appeals of Iowa

November 17, 2022


Appeal from the Iowa District Court for Johnson County, Jason A. Burns, District Associate Judge.

A mother and father appeal the termination of their parental rights. AFFIRMED.

Sarah Hradek, Iowa City, for appellant father.

Sara Strain Linder of Bray &Klockau, Iowa City, for appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant Attorney General, for appellee State.

Anthony Haughton of Linn County Advocate, Cedar Rapids, attorney and guardian ad litem for minor children.

Considered by Bower, C.J., and Greer and Badding, JJ.

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GREER, Judge.

The juvenile court terminated the parental rights of A.T., the mother, and J.J.H., the father, to their two children-who both are under the age of three. This appeal addresses the parents' objections to that determination.

The father and mother each maintain the State failed to prove the statutory grounds for termination, specifically that the children could not be returned to their custody at the time of the termination hearing; that termination of their parental rights is not in the children's best interests; and that the juvenile court should have avoided termination via the permissive exception found in Iowa Code section 232.116(3)(c) (2022). Additionally, the mother argues the juvenile court should have granted her a six-month extension.

Because the State proved the statutory ground for termination, termination is in the best interests of the children, no permissive exception was warranted in this case, and a six-month extension for the mother would have been inappropriate, we affirm.

I. Facts and Prior Proceedings.

On July 11, 2021, the mother tested positive for marijuana, methamphetamine, and amphetamine just before giving birth to the younger child; the mother admitted to using methamphetamine that day. The Iowa Department of Health and Human Services (DHHS)[1] was alerted. While in the hospital, the child's umbilical cord also tested positive for methamphetamine and

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amphetamines. In the days following, the father tested positive for methamphetamine and marijuana. About two weeks later, the mother left the shelter where the family was staying to go see a friend, leaving the older child, who was ten-months old, crying and alone in the family's room. Now, with combined concerns about supervision and drug use, the State filed for temporary removal on July 26, which the juvenile court granted. The children were placed in foster care and adjudicated children in need of assistance (CINA).

On a positive note, the parents began participating in Family Treatment Court in the fall of 2021. The mother completed a substance-abuse evaluation and was recommended to complete inpatient treatment, which she began in December 2021. But the steps forward stalled when she was discharged within the month after a series of behavioral violations. The father was also evaluated and began attending intensive outpatient treatment in February 2022, but he too stalled progress when he was discharged in April for non-attendance. In March, after continuing to deny drug use despite positive tests and allegations, it was learned that the mother was trying to sell mushrooms to others in treatment.[2] With no progress on the substance-abuse concerns, the parents were discharged from Family Treatment Court.

Both parents received a second evaluation, the mother in March and the father in May, but they did not provide the results to their DHHS caseworker.

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Instead, the caseworker saw the evaluations for the first time when the parents each submitted them as evidence at the termination hearing. The evaluations each recommended relapse preventions groups; the mother asserted she was attending as needed and the father said he was signed up to begin as well.[3] Both parents said they were attending weekly virtual Alcoholics Anonymous meetings together. Still, DHHS's last report to the court ahead of the June 16 termination hearing stated that, of the tests the mother appeared for, she had fourteen positive drug tests and three negative tests; on the father's part, he had eleven positive and five negative tests. Both parents had also missed some drug tests and had multiple tests that appeared to have been tampered. At that time, the most recent drug test-June 8-was positive for both parents and showed signs of tampering. At trial, both parents questioned the validity of the tests. The mother stated her last use of methamphetamine and marijuana was in November; she claimed she had not used any substances after finding out she was now again pregnant. The father also stated his last methamphetamine use was in November and he last used marijuana in January. The children's maternal grandmother and the mother's employer-who each regularly see the parents-both testified they had not noticed behavioral indicators of use by the parents.

To her credit, the mother completed a mental-health evaluation, which recommended individual therapy. At the time of the termination hearing, she was attending therapy once a month. The father was also supposed to receive an

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evaluation, but the caseworker had no indication the father had complied at the time of the termination hearing.

Early in the case, the parents struggled to attend visits with the children. Even as their attendance became more regular, there were issues with the parents coming unprepared or allowing other adults, not approved by DHHS, to be present. The parents did successfully complete the Nurturing Parent Program and visits typically went well-the parents were attentive to the children and the children were not fearful of them. But the continued positive drug tests caused visitation to remain fully supervised.

The parents have not been able to maintain stable housing during the case. After they left the homeless shelter, they fluctuated between staying with friends and family or short-term rentals. Often, DHHS had no information about where the parents were living. At the time of the termination hearing, the parents reported they intended to move in with the children's paternal grandmother because of a tumultuous relationship with their landlord while applying for another apartment. The juvenile court referenced a "common theme" from the parents-they have many plans but often fail to follow through with the stated intentions. Yet, at the termination trial, the parents had employment, meeting one of the goals established by DHHS.

The State filed for termination of parental rights in January 2022, citing concerns about the parents' housing stability and continued substance abuse. After a hearing, both parents' parental rights were terminated under Iowa Code section 232.116(1)(h).

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II. Analysis.

We review termination of parental rights de novo. In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). Each parent separately appeals the termination of their parental rights. Both parents argue the State failed to prove the ground for termination, termination is not in the children's best interests, and the court should have used the permissive exception found in Iowa Code section 232.116(3)(c) to avoid termination; the mother additionally asserts the court should have granted her a six-month extension. We address each in turn.

A. Statutory Grounds for Termination.

Each parent argues the State did not prove, "[t]here is 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," a necessary element to terminate their parental rights under section 232.116(1)(h).[4] See In re D.W., 791 N.W.2d 703, 707 (Iowa 2014) (using the termination hearing as the benchmark time for section 232.116(1)(h)).

The father argues the juvenile court erred in relying on Iowa Code section 232.102(5) when finding the children could not be safely returned to his care. The father is correct that this code section was deleted as of July 1, 2022. See 2022

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Iowa Acts ch. 1198...

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