In the Interest of M.B. and R.B., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 19-1884
Filed February 5, 2020

IN THE INTEREST OF M.B. and R.B.,
Minor Children,

S.B., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld,

District Associate Judge.

A father appeals the termination of his parental rights. AFFIRMED.

David R. Fiester, Cedar Rapids, for appellant father.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Kimberly A. Opatz of Linn County Advocate, Inc., Cedar Rapids, attorney

and guardian ad litem for minor children.

Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
2

AHLERS, Judge.

Claiming that he had a constitutional right to refuse drug and mental-health

testing, the father challenges the termination of his parental rights to the children.

At the time of the termination-of-parental-rights hearing, M.B. was four years

old (born in November 2014) and R.B. was three years old (born in January 2016).

The juvenile court terminated the parental rights of both the father and mother.

The father appeals. The mother does not.

I. Background Facts and Proceedings

The Iowa Department of Human Services (the DHS) became involved with

this family when the younger child tested positive for THC at birth.1 In addition to

the positive drug test, the DHS also had concerns of domestic violence in the

home. These events led to a CINA adjudication in April 2016. The children

remained with the mother during the previous CINA cases, during which time the

father did not participate in visits. The previous CINA cases closed in March 2017

after entry of a bridge order2 awarding sole custody of the children to the mother.

In awarding sole custody to the mother in the bridge order, the juvenile court made

the following findings:

The [father] is not a suitable custodian for the children. There are
concerns that [the father] has ongoing substance abuse (marijuana)
issues and unmet mental health (depression, non-compliance with
medication management) needs. [The father] has chosen not to
involve himself with his children and has only had minimal contact
with them in the past 8 months. [The father] is not participating in the
offered visitation with the children through the provider. [The mother]

1 The older child had also tested positive for THC at birth, but the DHS did not
pursue a child-in-need-of-assistance (CINA) action at that time.
2 See Iowa Code § 232.103A (2017) (permitting the juvenile court to close a CINA

case by transferring jurisdiction over the child’s custody, physical care, and
visitation to the district court through a bridge order).
3

has facilitated some limited visitation last Thanksgiving and
Christmas. [The father] has refused to participate in the Child in
Need of Assistance cases or even complete Social History
information as ordered. The psychological and emotional needs, as
well as the growth and development of the children, will best be
addressed with the children in the sole legal and physical custody of
the [mother]. The safety of the children would be jeopardized by the
awarding of joint legal custody, or by unsupervised or unrestricted
visitation with the children’s father.

No appeal was taken of these findings or the bridge order.

From the time of M.B.’s birth in November 2014 until the start of the

underlying CINA proceedings that led to the current termination proceedings, there

were numerous founded child abuse assessments completed on this family.

Investigations involving the family in February and March 2018 led to the discovery

that the home in which the children were living was filthy, the children were being

left outside unattended wearing only diapers and about to wander into the street

before a passerby stopped them, and the mother was using methamphetamine

around the children. The children were adjudicated to be children in need of

assistance in April 2018. Orders for drug testing of the children were thwarted

when the mother had the children’s heads shaved to avoid the testing. The

children were removed from parental care on May 7, 2018, after the mother, while

under the influence of methamphetamine or other drugs, barricaded herself in front

of the door to prevent law enforcement entry. Law enforcement eventually gained

entry. Due to the children’s condition, they were taken to the hospital for evaluation

where it was discovered that the children had not been bathed for days to weeks,

they were in heavily soiled diapers found to contain glass shards, they had

significant tooth decay, they were behind on their immunizations, they had high

lead levels, and R.B. had a staph infection in her nasal cavity. The father saw the
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children at the hospital and noted their deplorable condition. This was the father’s

first contact with the children since 2016.

As part of the CINA process, the father was ordered to submit to drug testing

and complete a mental-health evaluation. The father refused both, claiming the

orders violated his constitutional rights. Due to the father’s refusal to demonstrate

being drug-free and to be evaluated for mental-health issues, he has not

progressed beyond supervised visits. While the father has exercised a significant

amount of the offered visitation, the guardian ad litem reported that the children

have frequently expressed that they do not wish to attend visitation and they show

signs of anxiety before and after visits, including sometimes having diarrhea and

vomiting before or after visits. Also, the father knows the children have speech

development delays, but the father has refused to sign paperwork needed to allow

the children to participate in services such as speech therapy and receive other

medical treatment.

After assessing the situation and the facts, the juvenile court terminated the

parental rights of both parents. The father appeals, raising three largely

intertwined issues.

II. Standard of Review

We review termination proceedings de novo. In re P.L., 778 N.W.2d 33, 40

(Iowa 2010). Our de novo review includes constitutional claims raised during the

termination proceeding. In re C.M., 652 N.W.2d 204, 209 (Iowa 2002). We give

weight to the juvenile court’s factual findings, but they do not bind us. In re M.D.,

921 N.W.2d 229, 232 (Iowa 2018). The paramount concern is the children’s best

interests. Id.
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III. Statutory Grounds for Termination

The father claims that the statutory grounds for termination were not met.

The first way the father claims that the grounds were not met involves an error

regarding the applicable paragraph of the Iowa Code referenced by the juvenile

court in its ruling in M.B.’s case. In the petitions filed to start the termination

proceedings, the State sought termination of parental rights with respect to M.B.

pursuant to Iowa Code section 232.116(1)(f) (2019) and with respect to R.B.

pursuant to Iowa Code section 232.116(1)(h).3 The differences between sections

232.116(1)(f)4 and 232.116(1)(h)5 involve the ages of the children at issue and the

3 The State also asserted grounds for termination with regard to both children
pursuant to Iowa Code section 232.116(1)(a). Section 232.116(1)(a) involves
termination based on the consent of the parents. Since neither parent consented
to termination of their parental rights, the grounds under section 232.116(1)(a)
were not established and those grounds are not an issue in this appeal.
4 Under section 232.116(1)(f), the court may terminate parental rights if it finds all

of the following:
(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least twelve of the last eighteen months, or
for the last twelve consecutive months and any trial period at home
has been less than thirty days.
(4) There is 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.
5 Under section 232.116(1)(h), the court may terminate parental rights if it finds all

of the following:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least six months of the last twelve months,
or for the last six consecutive months and any trial period at home
has been less than thirty days.
6

length of the period of removal. In pertinent part, section 232.116(1)(f) applies to

children four years of age or older with a period of removal of twelve of the last

eighteen months or the last twelve months, and section 232.116(1)(h) applies to

children three years of age or younger with a period of removal of six of the last

twelve months or the last six months. In terminating the father’s parental rights,

the juvenile court cited Iowa Code section 232.116(1)(h) for both children. As the

father correctly points out, section 232.116(1)(h) could not serve as a basis for

terminating the parental rights of M.B., as M.B. was four years old at the time of

the hearing, so the age requirement of section 232.116(1)(h) could not be satisfied.

While this is true, it does not lead to the result urged by the father. On appellate

review of a termination of parental rights, we must “affirm an appeal where any

proper basis appears for a trial court’s ruling, even though it is not one upon which

the court based its holding.” In re M.W., 876 N.W.2d 212, 221 (Iowa 2016) (quoting

State v. Maxwell, 743 N.W.2d 185, 192 (Iowa 2008)). Although the juvenile court

referenced terminating the father’s parental rights with regard to M.B. pursuant to

section 232.116(1)(h), this was fairly clearly a typographical error, with the correct

section being section 232.116(1)(f). The typographical error has no legal

significance in this case. In the petition filed to start M.B.’s case, section

232.116(1)(f) was the statutory ground alleged, and thus the only remaining ground

upon which the juvenile court could base its termination decision. The erroneous

reference to section 232.116(1)(h) as the ground for terminating parental rights of

(4) There 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.
7

M.B.’s parents may have caused us more pause if the juvenile court had neglected

to make factual findings that satisfied the elements of section 232.116(1)(f), as

then we may have had concern that the juvenile court applied the wrong

subsection. In this case, however, the juvenile court made factual findings that

demonstrate that the juvenile court was contemplating the correct section.

Specifically, the juvenile court made findings that M.B. was almost five years old,

had been adjudicated as a child in need of assistance, had been removed from

parental care for seventeen consecutive months (from May 2018 until the

termination hearing in September 2019), there had been no trial home placements

with either parent, and neither parent was a viable placement option. Due to these

findings that satisfy the elements of section 232.116(1)(f) with regard to M.B., we

find the typographical error to have no legal significance in this case.

The father also asserts that the State failed to prove the fourth element of

termination in sections 232.116(1)(f) and 232.116(1)(h), specifically that “there is

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 Iowa

Code § 232.116(1)(f)(4), (h)(4); In re D.W., 791 N.W.2d 703, 707 (Iowa 2010)

(interpreting the statutory language “at the present time” to mean “at the time of

the termination hearing”). In support of this argument, the father highlights the fact

that he has not lived with the mother since approximately June 2016, which was

prior to the filing of the current CINA petitions. In addition, the father argues that

the State presented no evidence that his current home6 was inappropriate for the

6 The father lives with his own father (i.e., the children’s paternal grandfather).
8

children. The father’s focus on the condition of the home where he resides is

misplaced in this instance. The problem with placing the children with the father

was not the condition of the grandfather’s home, but the deficiencies in the father’s

parenting. The father has a history of drug abuse and mental-health problems,

plus the father was taking prescription narcotics for a serious back injury. In spite

of these circumstances, the father refused to submit to drug testing to confirm his

claimed sobriety and refused to submit to a mental-health evaluation. These

refusals contributed to his inability to progress beyond supervised visits. At the

termination hearing, he refused to answer questions about his marijuana use and

mental-health history. He also failed to attend the children’s medical appointments

and caused delay in the children receiving needed services by refusing to sign

necessary releases. Under these circumstances, it was appropriate to restrict the

father to supervised interactions with his children, and it was appropriate for the

juvenile court to terminate the parental rights of the father who had not progressed

past supervised visitation in spite of over seventeen months of services being

offered. We agree with the juvenile court that the statutory grounds for termination

were properly established. See Iowa Code § 232.116(1)(f), (h). We also agree

that the father was not entitled to an additional six months to work toward

reunification. See Iowa Code § 232.104(2)(b) (allowing the juvenile court to

provide an additional six months for reunification if it determines “the need for

removal of the child from the child’s home will no longer exist at the end of the

additional six-month period”); see also In re D.S., 806 N.W.2d 458, 474 (Iowa Ct.

App. 2011) (“We will not gamble with a child’s future by asking him to continuously

wait for a stable biological parent, particularly at such a tender age.”).
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IV. Best Interest of the Children

The father challenges the juvenile court finding that it was in the best

interest of the children to terminate the father’s parental rights. In making this

finding, the juvenile court relied on the recitation of facts that formed the basis for

the finding that the children could not be safely returned to either parent. See Iowa

Code § 232.116(2) (requiring “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”). We find

no error in the juvenile court’s conclusion that it was in the best interest of the

children to terminate the father’s parental rights. Like the juvenile court, we refer

to the factual findings that form the basis for the conclusion that the children cannot

be safely returned to either of the parental homes as support for the determination

that it is in the best interest of the children to terminate the father’s parental rights.

In arguing that the juvenile court erred in finding that it was in the children’s

best interest to terminate the father’s parental rights, the father largely blends the

best-interest-of-the-child analysis with an argument that the statutory exceptions

set forth in Iowa Code section 232.116(3) should prevent termination. See

id. § 232.116(3)(c) (“The court need not terminate the relationship between the

parent and the child if” it finds “that the termination would be detrimental to the

child at the time due to the closeness of the parent-child relationship.”). The father

argues that termination will disrupt the integrity of the family unit and runs the risk

that the children will be broken up when it comes time for them to be adopted. The

father’s arguments are not persuasive. The integrity of the family unit has already

been disrupted due to the ongoing parental deficiencies of both parents. The
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father has gone long periods of time where he has been absent from the lives of

these children, including being so detached from the children that he was unaware

of the deplorable conditions in the mother’s home. Even when he resurfaced, his

refusal to take even basic steps to demonstrate that he is a viable placement option

have resulted in him progressing no further than supervised visits with the children.

While there is a risk the two children may not be adopted into the same family,

there is no reason to believe that such an unfortunate outcome will result. Even in

the unlikely event it does, the children would still be better in separate adoptive

homes than being returned to a father who neglected them for much of their lives.

We find termination of the father’s rights to be in the children’s best interest.

We also reject the father’s argument that any bond between the father and

children should prevent termination of his rights. See id. While the children appear

to have a bond with the father, his extended absence from their short lives limits

this bond. Further, the record shows the children exhibit signs of stress before and

after visitation. As explained above, the father failed to demonstrate he is ready

to progress beyond supervised visits after seventeen months of involvement from

the DHS. Therefore, his bond with the children does not preclude termination.

V. Refusal to Submit to Testing and Evaluation

The father argues the juvenile court had no authority to order him to submit

to drug testing without probable cause, and, in using his refusal against him, the

father’s constitutional rights were violated.7 See U.S. Const. amend. IV (prohibiting

7In addition to his argument on unreasonable search and seizure, the father’s
petition to us also mentions the fifth amendment. See U.S. Const. amend. V. This
mention of the fifth amendment is not sufficient for us to consider such rights on
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unreasonable searches and seizures). In his petition to us, he presents the issue

as whether “the taking of a bodily specimen, particularly breath, blood, hair or

urine, without probable cause, constitutes an unreasonable search and seizure.”

In analyzing this issue, we need not decide whether the father has the right

claimed because, even if it is assumed that he has such a right, that right was not

violated for multiple reasons. First, the only way the father’s refusal to cooperate

by submitting to drug testing was used against him was that such refusal formed

part of the basis for limiting the father’s interaction with the children to supervised

visits. He was not physically forced to submit to testing, and no effort was made

to hold him in contempt of court for disobeying the order for testing. The fact that

the father suffered an adverse consequence from exercising his claimed rights

does not constitute a violation of the claimed rights. See In re C.H., 652 N.W.2d

144, 150 (Iowa 2002) (“Contrary to [the father’s] assertions, a person’s exercise of

a constitutional right may indeed have consequences. One such consequence

may be a person’s failure to obtain treatment for his or her problems.”).

Second, once the juvenile court adjudicated the children to be in need of

assistance, the court had statutory authority to order the father to submit to drug

testing because his ability to care for the children was at issue. See Iowa Code

§ 232.98(2) (“Following an adjudication that a child is a child in need of assistance,

the court may after a hearing order the physical or mental examination of the parent

. . . if that person’s ability to care for the child is at issue.”).

appeal. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of
an issue may be deemed waiver of that issue.”).
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Third, the father’s entire argument is based on the premise that the order

for drug testing lacked probable cause. We do not decide whether the probable

cause standard applies in this context. That said, there was ample reason for

ordering the father to submit to drug testing. As detailed above, both children

tested positive for marijuana at birth. The father was the subject of a March 2017

bridge order entered in conjunction with closing of the previous CINA proceedings.

The bridge order included factual findings that the father had ongoing substance-

abuse issues and unmet mental-health issues. Just over one year later, the

children returned to the attention of the DHS because of the mother’s deplorable

behavior in caring for them. However, the fact that the mother’s atrocious

parenting led to the DHS involvement did not mean that the DHS or the juvenile

court should have assumed that the father had fixed his problems over the prior

year. The DHS and the juvenile court justifiably continued to have the same

concerns with the father that they had over a year earlier when the bridge order

was entered. His recent prescription for narcotic pain medicine raised additional

concerns. As a result of those concerns, the court ordered the father to engage in

the very simple task of submitting to drug testing to help determine whether he had

improved to the point of being a viable placement option. He refused to submit to

such testing. As a result, he never established that he had adequately addressed

his drug use or that he was a viable placement option. Under these circumstances,

there was no violation of his claimed rights, assuming he possessed those rights.

Finally, it was not just the father’s refusal to submit to drug testing that

caused concern to the DHS workers and the juvenile court. His refusal to submit

to a mental-health evaluation also raised concerns. On appeal, the father raises
13

no constitutional challenge to the order for mental-health evaluation and treatment.

Even with no consideration of the evidence of the father’s drug use, our de novo

review of the record finds clear and convincing evidence supporting termination,

as described above. Therefore, even if it was assumed for the sake of argument

that it was improper to order the father to submit to drug testing, the father was not

prejudiced by such impropriety because the other evidence in the record, including

his refusal to submit to a mental-health evaluation and treatment, independently

support termination of his parental rights by clear and convincing evidence.

VI. Conclusion

We find the State proved the statutory grounds for terminating the father’s

parental rights to both children, termination is in the children’s best interest, and

consideration of the father’s refusal to participate in drug testing does not violate

the constitutional prohibition on unreasonable search and seizure. Therefore, we

affirm the termination of the father’s parental rights to both children.

AFFIRMED.