In the Interest of J.P. and M.P., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 22-0416
Filed May 11, 2022

IN THE INTEREST OF J.P. and M.P.,
Minor Children,

B.P., Father,
Appellant,

S.H., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Boone County, James B. Malloy,

District Associate Judge.

A mother and father separately appeal the termination of their parental

rights to two children. AFFIRMED ON BOTH APPEALS.

Ashley Beisch (until withdrawal) of Johnson Law Office, Ogden, and

Benjamin Bragg, Clive, for appellant father.

Nathan Hostetter of Hostetter Law Office, Ames, for appellant mother.

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

Attorney General, for appellee State.

Kelsey Knight of Carr Law Firm, P.L.C., Des Moines, attorney and guardian

ad litem for minor children.

Considered by May, P.J., and Greer and Chicchelly, JJ.
2

CHICCHELLY, Judge.

A mother appeals the termination of her parental rights to two children, J.P.

and M.P. J.P.’s father separately appeals the termination of his parental rights to

J.P. Both the mother and father1 contend that the statutory grounds for termination

were not met, termination was not in the children’s best interests, and an exception

should apply. Upon our de novo review, we affirm termination of each parties’

parental rights.

I. Background Facts and Proceedings.

J.P. and M.P. became involved with the Iowa Department of Human

Services (DHS) in August 2019 at the ages of one and four years old respectively.

At that time, a removal order was entered due to the mother’s use of

methamphetamine while the children were under her care. The DHS

recommended treatment, but the mother did not participate until she began

outpatient services in March 2020. The father also tested positive for

methamphetamine in August 2019 and refused to engage in substance-abuse

treatment. He maintained that he would not participate until a paternity test came

back proving he was J.P.’s father. He did receive a substance-abuse evaluation

in November 2019, which recommended outpatient treatment. He told the DHS

caseworker in December that he did not need services, later agreed to outpatient

treatment, and ultimately failed to follow through.

The two children were adjudicated as children in need of assistance in

February 2020. The parents failed to appear for a dispositional hearing in March,

1The father of M.P. consented to termination and does not appeal. As such, the
use of “father” herein shall refer to the father of J.P.
3

and the children remained in foster care. The mother appeared for a permanency

hearing in August, and after the DHS received good reports from her ongoing

treatment, custody was returned to her in October 2020 by agreement of the

parties.

Custody remained with the mother after a review hearing in January 2021.

However, a dispositional modification hearing was held less than one month later

due to allegations that the mother was using and selling methamphetamine with

her new boyfriend. The mother did not appear for the hearing and was not

cooperating with the DHS or its drug screens at that time. Consequently, the

children were removed from the mother’s custody and placed with the father’s

paramour. Another modification took place in March 2021 due to the father’s

positive drug screen for methamphetamine. He claimed the result was from

secondary interactions rather than his own drug use, but the drug testing lab

confirmed for the DHS that neither explanation the father offered would lead to the

positive result. His paramour indicated she did not want to keep the children in her

care, so they were subsequently placed in family foster care at the beginning of

April.

In April, the mother admitted using marijuana on a regular basis but denied

using methamphetamine. She had a drug patch put on that month but failed to

return to have it tested. She did not comply with requested drug testing in May.

However, the mother obtained a successful discharge from outpatient treatment

on June 1. The summary report indicates that she abstained from all substances

for six months of time. She failed to comply with drug testing on two occasions in
4

August even though the DHS offered transportation for the appointments. The

father tested positive for methamphetamine in July.

At a permanency hearing in September, the court directed the State to file

a termination petition. A petition to terminate parental rights was filed in October,

and a hearing was held in November 2021. At the time of the termination hearing,

M.P. was six and J.P. was three years of age. After the court terminated their

parental rights, the mother and father each filed timely appeals.

II. Review.

Our review of termination proceedings is de novo. See In re B.H.A., 938

N.W.2d 227, 232 (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) (internal citation

omitted). Though not binding, we give weight to the juvenile court’s fact findings.

See Iowa R. App. P. 6.904(3)(g); In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App.

2010).

III. Discussion.

Iowa courts use a three-step analysis to review the termination of parental

rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). Those steps include 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. We address each step in turn, bearing

in mind that the children’s best interests are our primary concern on review. In re
5

J.H., 952 N.W.2d 157, 166 (Iowa 2020). While the juvenile court found the State

proved two grounds for terminating each parent’s rights by clear and convincing

evidence, we may affirm if the record supports termination on any one ground.

See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012).

A. Grounds for Termination of Mother’s Rights.

The juvenile court terminated the mother’s parental rights to J.P. pursuant

to paragraphs (e) and (h) of Iowa Code subsection 232.116(1) (2021) and to M.P.

pursuant to paragraphs (e) and (f) of the same subsection. We confine our

analysis to paragraphs (h) and (f). With respect to both children, only the fourth

element of the applicable paragraph is in dispute: whether the child could be

returned to the parent’s care at the time of the termination hearing. See Iowa Code

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

(interpreting the term “at the present time” to mean “at the time of the termination

hearing”).

We agree with the juvenile court that neither M.P. nor J.P. could be returned

to her mother’s care at the time of the termination hearing. The mother contends

that care could be returned because she has stable, suitable housing, is employed,

and completed substance-abuse treatment. The mother moved a couple of times

but did have housing and was employed cleaning rental properties for her

boyfriend’s grandmother. However, the true success of her substance-abuse

treatment is unclear. As the juvenile court observed, the discharge report does not

reflect that many of the contacts were not in person due to COVID-19. It does not

indicate how often the mother attended treatment or how the mother’s abstinence

was verified. It does not account for the mother’s apparent relapse when the
6

children were removed in January 2021 or acknowledge the DHS drug tests with

which the mother failed to comply.

Upon our review, we find the mother’s drug use is an unresolved issue

preventing return of the children. “[W]e presume the missed tests would have been

positive for illegal substances.” In re J.D., No. 21-0391, 2021 WL 3379037, at *1

(Iowa Ct. App. Aug. 4, 2021); see also In re J.K. and J.K., 495 N.W.2d 108, 112

(Iowa 1993) (terminating parental rights where mother demonstrated unresolved

drug dependency and declining to take her “word that she stayed away from

drugs”). The mother claims transportation issues and short notice were the

reasons behind her noncompliance with the DHS drug testing. However,

transportation services were offered to her, and short notice is purposeful for

random drug testing. The mother likewise never followed through on the DHS

recommendations for mental-health services during the two years of this case, but

an initial evaluation was scheduled for one week after the termination hearing.

There is also a significant history of domestic violence for the mother with incidents

involving the father and at least two other individuals during the case.

Moreover, the mother has failed to demonstrate an ability to provide

adequate care for the children. At the time of the termination hearing, the children

had been removed from their mother’s care for twenty-four of the last twenty-seven

months, and she had not progressed beyond fully supervised visits. “Without this

necessary progression [from supervised to unsupervised visits], we cannot say the

children could have returned to the mother’s care.” See In re C.N., No. 19-1961,

2020 WL 567283, at *1 (Iowa Ct. App. Feb. 5, 2020). Her visits were inconsistent,

and she was unsuccessfully discharged from Safe Care in March 2021 due to
7

noncompliance. She did not take an active role in the children’s healthcare needs,

as she did not appear for or inquire about their appointments. M.P. suffers from a

debilitating condition known as torticollis, which affects her neck and mobility. The

mother was not following through on her treatment needs prior to removal, and

now she will likely need surgery. M.P. also had three teeth removed due to lack

of care and infection. J.P. has specialized healthcare needs as well, as she now

wears braces on her feet to keep her from walking on her tiptoes. The mother

does not have a driver’s license to follow through on transportation for her

daughters’ healthcare needs.

Based on our review of the record, we find the children could not be returned

to the mother’s care at the time of the hearing. We conclude there is clear and

convincing that grounds for termination of the mother’s parental rights under Iowa

Code section 232.116(1)(f) and (h) have been satisfied for M.P. and J.P.,

respectively.

B. Grounds for Termination of Father’s Rights.

The juvenile court terminated the father’s parental rights to J.P. pursuant to

paragraphs (e) and (h) of Iowa Code subsection 232.116(1). We confine our

analysis to paragraph (h). Again, only the fourth element is in dispute: whether the

child could be returned to the parent’s care at the time of the termination hearing.

See Iowa Code § 232.116(1)(h)(4); D.W., 791 N.W.2d at 707. We agree with the

juvenile court that J.P. could not be returned to her father’s care at that time.

The father has failed to reckon with his shortcomings in both his personal

life and that of his daughter. He has continued to test positive for

methamphetamine and has not followed through on substance-abuse treatment.
8

He did attend a substance-abuse evaluation in September 2021 for which the

summary letter indicated, “He did not provide any direct answers and did his best

to avoid taking any responsibility for his actions.” The father has also

demonstrated issues with domestic assault and failed to complete the Iowa

Domestic Abuse Program classes. He has likewise failed to meaningfully

participate in mental-health services. He appeared for a mental-health evaluation

in February 2021 as ordered through his probation, but the appointment ended

early due to his erratic and argumentative behavior. He returned to complete the

evaluation in April, but he denied every symptom that would indicate a need for

services.

The father has also failed to set up requested mental-health treatment for

his daughter. He has attended fewer than half of the visits offered to him during

the case and has not attended any medical appointments. He also has no driver’s

license and lacks stable housing, having been in and out of jail and lived generally

with family and friends. He has not progressed beyond fully-supervised visits.

While the father argues he has shown meaningful signs of progress, we find he

has not demonstrated an ability to provide adequate care and has shown an overall

unwillingness to address his substance-abuse issues. We conclude his daughter

could not be returned at the time of the termination hearing and a statutory ground

for termination is therefore satisfied.

C. Children’s Best Interests.

Both parents argue termination is not in the children’s best interests. To

evaluate this issue, “the court shall give primary consideration to the child’s safety,

to the best placement for furthering the long-term nurturing and growth of the child,
9

and to the physical, mental, and emotional condition and needs of the child.” Iowa

Code § 232.116(2). In this case, we agree with the juvenile court that termination

is in M.P. and J.P.’s best interests. They are in a stable placement with their foster

mother, who they refer to as mom and is actively addressing their healthcare

needs. See In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (noting a child’s

favorable integration into a foster placement supports finding termination is in the

child’s best interests).

Neither parent has been able to demonstrate a meaningful period of

sobriety during the course of this case. In light of their history, we are not inclined

to believe that either of the parent’s behavior will change in a reasonable time.

See A.B., 815 N.W.2d at 778 (“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.” (citation omitted)). Each parent’s refusal to

accept responsibility for their deficiencies—demonstrated by noncompliance with

drug testing and other services—further supports our conclusion that termination

is in the children’s best interests. See In re A.G., No. 18-1161, 2018 WL 6131920,

at *3 (Iowa Ct. App. Nov. 21, 2018) (finding termination is in the best interest of a

child when the parent has “refused to acknowledge or address the concerns giving

rise to removal”). Accordingly, we find termination of both parents’ rights is in the

best interests of the children.

D. Exceptions to Termination.

Each parent asserts that the detriment termination would cause to the

children warrants an exercise of our discretion. See Iowa Code § 232.116(3)(c)
10

(providing a discretionary exception to termination when “[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”). The parent bears the

burden to prove the applicability of an exception to termination. A.S., 906 N.W.2d

at 476. Even if grounds for an exception are substantiated, we retain discretion as

to whether termination should be halted on that basis. See In re A.M., 843 N.W.2d

100, 113 (Iowa 2014).

The mother argues summarily that the children have a bond with her, she

appropriately parents during visits, and she loves her children. Despite the

mother’s love for her children, “our consideration must center on whether the child

will be disadvantaged by termination.” D.W., 791 N.W.2d at 709. The father

similarly argues that his daughter is bonded with him and that he showed positive

parenting skills at visits. We do not find the parent-child relationship is so strong

that it outweighs the need for termination in either parent’s case. See In re W.M.,

957 N.W.2d 305, 315 (Iowa 2021) (finding the existence of a bond is insufficient

when parents have “failed to provide the clear and convincing evidence necessary

to show that, on balance, that bond makes termination more detrimental than not”).

Accordingly, we find this exception will not save the mother’s or father’s parental

rights.

IV. Disposition.

Having found the statutory grounds satisfied for each parent, the best

interests of the children considered, and a lack of applicable exceptions, we affirm

termination of the mother’s and father’s parental rights.

AFFIRMED ON BOTH APPEALS.