In the Interest of D.D. and E.D., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 20-1001
Filed November 30, 2020

IN THE INTEREST OF D.D. and E.D.,
Minor Children,

K.D., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Clay County, Andrew Smith, District

Associate Judge.

A father appeals the termination of his parental rights to his children.

AFFIRMED.

Bethany Brands, Spirit Lake, for appellant father.

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

Attorney General, for appellee State.

Shawna L. Ditsworth, Spirit Lake, attorney and guardian ad litem for minor

children.

Considered by Bower, C.J., and Vaitheswaran and Greer, JJ.
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VAITHESWARAN, Judge.

A father appeals the termination of his parental rights to his children, born

in 2007 and 2008. He contends (1) the State failed to prove the grounds for

termination cited by the district court; (2) termination was not in the children’s best

interests; (3) the district court should have invoked certain exceptions to

termination; (4) the district court should have granted him six additional months to

obtain a custody modification order and (5) the district court violated the Equal

Protection Clauses of the United States and Iowa Constitutions.

The district court terminated the father’s parental rights pursuant to several

provisions. We may affirm if we find clear and convincing evidence to support any

of the grounds. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We will focus on

Iowa Code section 232.116(1)(f) (2020), which requires proof of several elements,

including proof the children cannot be returned to parental custody.

The mother and father of the children divorced in 2016. Under a stipulation

approved by the dissolution court, the parents agreed to joint legal custody and

“shared physical care” of the children. Several years later, the department of

human services investigated “[m]ethamphetamine use by [the father].” The father

tested positive for the drug as did the mother. The district court ordered the

children’s removal from parental care in early 2019. They were later returned to

the mother’s custody. Meanwhile, the father continued to test positive for

methamphetamine, most recently about two months before the termination

hearing. The department social worker assigned to the case testified the “case

started” based on concerns of “known drug users” and “drug use” in the home and

those concerns remained on the eve of termination. The father admitted using
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methamphetamine in the month the termination petition was filed. When asked if

the children could be returned to his care, he responded, “Probably not right away,

before I take a little more supervision and let me work on my recovery a little

more . . . .” On our de novo review, we conclude the State proved the children

could not be returned to parental custody as set forth in Iowa Code section

232.116(1)(f).

We turn to whether termination was in the children’s best interests. See

Iowa Code § 232.116(2). The department’s goal had been to transition the father

from supervised visits with the children to semi-supervised visits and ultimately to

the physical-care arrangement set forth in “the original district court decree.” But

the father’s repeated positive drug tests prevented implementation of that goal.

The department social worker noted that twenty-one months had elapsed since

the case began “and the children still [could not] be left unsupervised with” their

father and “[t]hey still [could not] do overnight visits.” He testified one of the

children was “petrified” at the prospect of being returned to his father’s care and

both children “consistently” told their attorney “that they would feel unsafe . . .

having unsupervised contact with their father.” He stated, “I don’t know how much

longer we can drag this on with the children, because it does bother them and it

does affect them.” He felt “strongly” that termination of the father’s parental rights

was in the children’s best interests. A service provider confirmed that the father’s

participation in services was “very inconsistent.” And the father’s substance-abuse

counselor anticipated that the father would not be discharged from substance-

abuse treatment for “several months more, perhaps through the rest of the year.”

Finally, as noted, the father recognized he was not in a position to have the children
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returned to his custody. He also conceded his association with other drug users

posed a safety risk to the children. On our de novo review, we agree with the

district court that termination of the father’s parental rights was in the children’s

best interests.

The father next contends the district court should have declined to terminate

parental rights based on the fact that the mother had custody of the children and

based on his bond with them. See id. § 232.116(3) (a), (c). The guardian ad litem

acknowledged a relative had custody but stated the father’s “addiction and the lack

of boundaries . . . would create ongoing safety concerns and emotional harm for

the children if he were to retain his parental rights.” She cited the concern

expressed by the children when family members supervised visits, a concern

seconded by the department social worker, who noted the father pushed

boundaries during visits supervised by individuals other than the service provider.

As for the father’s bond with the children, we have discussed their fear of returning

to their father’s custody. Additionally, the guardian ad litem stated:

Clearly [the father] loves his children and clearly they have been a
motivating factor for him. No one has ever doubted that. But
unfortunately due to [the father’s] actions over the last couple of
years, that has harmed the children’s relationship and bond with him.
And I don’t believe that [the bond] is so strong at the present time
that that should be a reason not to terminate [the father’s] parental
rights.

On our de novo review, we conclude the district court appropriately denied the

permissive exceptions to termination.

The father also argues the district court should have granted additional time

to obtain a custody modification order. See id. § 232.104(2)(b) (authorizing entry

of an “order . . . to continue placement of the child for an additional six months at
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which time the court shall hold a hearing to consider modification of its permanency

order” and stating “[a]n order entered under this paragraph shall enumerate the

specific factors, conditions, or expected behavioral changes which comprise the

basis for the determination that 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”). The court

found that the father’s reason for wanting additional time did not align with the

statutory provision. The court explained, “[T]he purpose of granting additional time

is to do so when there is a legitimate expectation that the conditions which led to

removal would no longer exist at the end of the additional period of time.” The

court found “no reason to believe that would be the case, [w]hen nearly two years

of services . . . left [the father] in essentially the same position as he was following

the initiation of services.” On our de novo review, we agree with the court’s

assessment, which was supported by the department social worker’s testimony

that “[w]e would not be in any different position” in six months.

Finally, the father argues

[t]he juvenile court violated [his] equal protection rights under the
U.S. and Iowa Constitutions when it refused to grant [him] additional
time in order to complete a modification order. Further, the bridge
order statute impermissibly discriminates against parents who have
a prior district court order and thus violates equal protection.

Although the father raised the issue of a custody modification order and his inability

to obtain a bridge order under Iowa Code section 232.103A,1 he did not assert a

1 The provision states: “The juvenile court may close a child in need of assistance
case by transferring jurisdiction over the child’s custody, physical care, and
visitation to the district court through a bridge order . . . .” Iowa Code 232.103A(1).
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constitutional violation and the district court did not address the constitutional

issue. Accordingly, we conclude error was not preserved. See Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review

that issues must ordinarily be both raised and decided by the district court before

we will decide them on appeal.”); see also In re M.D., 921 N.W.2d 229, 238 (Iowa

2018) (Christensen, J., concurring in part and dissenting in part) (“While the mother

did move to continue and appear by telephone, she did not raise due process

arguments in juvenile court or her petition for appeal.”).

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

AFFIRMED.