In the Interest of A.B., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 21-1495
Filed January 12, 2022

IN THE INTEREST OF A.B.,
Minor Child,

K.R., Mother,
Appellant,

R.B., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Lee (South) County, Clinton R.

Boddicker, District Associate Judge.

A mother and father separately appeal the termination of their respective

parental rights. AFFIRMED ON BOTH APPEALS.

Alan Waples, Burlington, for appellant mother.

William (Bill) Monroe, Burlington, for appellant father.

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

General, for appellee State.

Kendra M. Abfalter of Public Defender Office, Burlington, attorney and

guardian ad litem for minor child.

Considered by Vaitheswaran, P.J., and Tabor and May, JJ.
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MAY, Judge.

A mother and father separately appeal the termination of their respective

parental rights to their child, A.B. Both parents challenge the statutory grounds

authorizing termination and object to the admission of drug-testing evidence. We

affirm.

Our review of termination proceedings is de novo. In re Z.P., 948 N.W.2d

518, 522 (Iowa 2020). “We will uphold an order terminating parental rights where

there is clear and convincing evidence of the statutory grounds for termination.

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.” In re T.S.,

868 N.W.2d 425, 431 (Iowa Ct. App. 2015) (citation omitted).

Iowa courts use a three-step analysis to review the termination of a parent’s

rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). We must determine 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. “However, if a parent does not challenge

a step in our analysis, we need not address it.” In re J.P., No. 19-1633, 2020 WL

110425, at *1 (Iowa Ct. App. Jan. 9, 2020).

In this case, neither parent addresses the second or third steps. So we

focus on whether statutory grounds for termination were met.

Both parents’ rights were terminated under Iowa Code

section 232.116(1)(h) (2021). It authorizes termination when:

(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.
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(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.
(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.

Iowa Code § 232.116(1)(h). Both parents limit their challenges to the last

element.1 It is established when the State demonstrates the child cannot be safely

returned to the parent at the time of the termination hearing. In re T.W., No. 20-

0145, 2020 WL 1881115, at *2–3 (Iowa Ct. App. Apr. 15, 2020).

Like the juvenile court, we conclude A.B. could not be safely returned to

either parent. Both parents have long histories of drug abuse, including

methamphetamine use. Their use continued during this case. In January 2021,

both parents abruptly refused to continue with requested drug screenings. “We

presume these missed drug tests would have resulted in positive tests.” In re I.J.,

No. 20-0036, 2020 WL 1550702, at *2 (Iowa Ct. App. Apr. 1, 2020); accord In re

D.G., No. 20-0587, 2020 WL 4499773, at *4 (Iowa Ct. App. Aug. 5, 2020); In re

L.B., No. 17-1439, 2017 WL 6027747, at *2 (Iowa Ct. App. Nov. 22, 2017). And

1 The mother also argues that the State failed to provide reasonable efforts toward
reunification. But this argument is built upon facts outside of our record: The
mother focuses on hearings and orders in 2018. But our record contains no filings
or transcripts from before July 2019. It almost seems like the mother’s argument
was “cut and pasted” from a different case. In any event, given the record before
us, we are unable to understand—much less act upon—the mother’s reasonable-
efforts argument. So we do not consider any reasonable-efforts challenge. See
In re J.J., No. 18-2175, 2019 WL 1055896, at *1 (Iowa Ct. App. Mar. 6, 2019) (“‘To
reach the merits of this case would require us to assume a partisan role and
undertake the appellant’s research and advocacy. This role is one we refuse to
assume.’ It is not our duty to ‘speculate on the arguments [a party] might have
made and then search for legal authority and comb the record for facts to support
such arguments.’” (alteration in original) (citations omitted)).
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this presumption was confirmed when both parents later tested positive for

methamphetamine in February 2021, just two months before the start of the

termination hearing. A parent’s methamphetamine use creates a dangerous

environment for children. In re K.L., No. 17-0346, 2017 WL 2465817, at *1 (Iowa

Ct. App. June 7, 2017); In re J.S., 846 N.W.2d 36, 37 (Iowa 2014). This danger

was exemplified when A.B. tested positive for methamphetamine at the beginning

of this case. We expect A.B. would face similar dangers if returned to either parent.

We also note that A.B. has serious health issues that require detailed

attention and diligent care. A.B. receives both occupational and physical therapy

to assist with delayed development. These therapies were not regularly completed

when A.B. was in the mother and father’s care. And once A.B. was placed in foster

care, the mother and father missed many of A.B.’s medical appointments even

though the foster mother provided them with appointment details. Given the

potentially life-threatening implications of A.B.’s health issues, we share the

juvenile court’s concern for A.B.’s safety if he were to be returned to either parent.

The parents also argue that evidence of the February 2021 drug tests was

improperly admitted at trial. The mother contends the evidence lacks foundation2

while the father claims the tests amount to hearsay and lack foundation. While we

review termination proceedings de novo, our review of subsidiary rulings—such as

the admission of evidence—is for an abuse of discretion. In re L.R., No. 13-0713,

2 The mother claims the evidence is “inaccurate,” but she points to no rule of
evidence that would permit or require exclusion on this basis.
The mother also mentions “hearsay” in passing. But a passing reference
does not create a viable argument for our review. See State v. Louwrens, 792
N.W.2d 649, 650 n.1 (Iowa 2010).
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2013 WL 4504930, at *6 (Iowa Ct. App. Aug. 21, 2013). But see State v.

Dessinger, 958 N.W.2d 590, 597 (Iowa 2021) (“We review hearsay claims,

however, for corrections of errors at law.”). And “[t]he discretionary decisions of

the trial court are presumed to be correct until the contrary is shown by the

complaining party.” Bremicker v. MCI Telecomm. Corp., 420 N.W.2d 427, 428

(Iowa 1988).

At the outset, we note the mother made no contemporaneous objection to

this evidence. And while the father objected contemporaneously, he only raised a

foundational objection. Neither parent raised a timely hearsay objection. So we

focus on the issue of foundation.3

Turning to the merits, we think the State provided sufficient foundation. The

question is whether the State offered testimony “sufficient to support a finding that

the [drug test evidence] is what the [State] claims it is.” Iowa R. Evid. 5.901(a);

see also Iowa R. Evid. 5.901(b)(9) (providing “[e]vidence describing a process or

system and showing that it produces an accurate result” is sufficient under the

rule); State v. Musser, 721 N.W.2d 734, 750–51 (Iowa 2006). Here, the technician

who took the hair samples for testing testified about the collection protocol and

quality assurance processes. And a supervisor for the testing facility testified at

3 We note the father raised a belated hearsay objection. Despite its tardiness, the
court addressed the objection and ruled that the drug test results fell within the
exception for regularly conducted activity, also known as the business records
exception. See Iowa R. Evid. 5.803(6). On appeal, the parties do not challenge
this determination. And “[w]e do not presume error.” Clement v. Irwin, No. 19-
1192, 2020 WL 4498860, at *2 (Iowa Ct. App. Aug. 5, 2020) (citation omitted); see
generally id. (collecting cases noting the burden is on the appellant to establish
error). Rather, we presume the court was correct. See Cass Cnty. v. Audubon
Cnty., 266 N.W. 293, 296 (Iowa 1936) (noting “the presumption that the action of
the court was regular and lawful in all respects”).
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length regarding the laboratory process to obtain and then confirm positive test

results. But most important, the technician confirmed that the evidence was what

the State purported it to be: the results of a February 2021 drug screen for the

mother and father. We believe this testimony meets the threshold test for

authentication under Iowa Rule of Evidence 5.901(a).

In any event, even if the court should have excluded the evidence, it does

not affect the proper outcome in this appeal. Even when we examine the totality

of the record without the February 2021 drug tests, we are still convinced drug use

remains a persistent problem for both parents. For instance, their refused tests

from January 2021 are presumed positive. See I.J., 2020 WL 1550702, at *2. And

the parents’ drug use endangers A.B. So termination of both parents’ rights was

proper.

AFFIRMED ON BOTH APPEALS.