In the Interest of M.H., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 24-0576
Filed June 19, 2024

IN THE INTEREST OF M.H.,
Minor Child,

S.H., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Warren County, Mark F. Schlenker,

Judge.

The father appeals the termination of his parental rights to his one-year-old

child. AFFIRMED.

Zachary C. Priebe of Jeff Carter Law Offices, PC, Des Moines, for appellant

father.

Brenna Bird, Attorney General, and Lisa Jeanes, Assistant Attorney

General, for appellee State.

Magdalena Reese of Des Moines Juvenile Public Defender, Des Moines,

attorney and guardian ad litem for minor child.

Considered by Tabor, P.J., and Greer and Schumacher, JJ.
2

GREER, Judge.

The juvenile court terminated the father’s parental rights to M.H., born in

September 2022, pursuant to Iowa Code section 232.116(1)(h) (2023).1 The father

appeals, arguing the State failed to prove the statutory ground because M.H. could

be returned at the time of the termination trial or, alternatively, it would have been

in M.H.’s best interests to establish a guardianship rather than terminate parental

rights.

We review termination proceedings de novo. In re L.B., 970

N.W.2d 311, 313 (Iowa 2022). This means that while we respect the juvenile

court’s factual findings, especially on credibility issues, “we examine the whole

record, find our own facts, and adjudicate rights anew on issues properly before

us.” Sun Valley Iowa Lake Ass’n v. Anderson, 551 N.W.2d 621, 629 (Iowa 1996).

The juvenile court terminated the father’s parental rights under

section 232.116(1)(h), which allows for termination when there is clear and

convincing evidence:

(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.
(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.

The father challenges only the fourth element—whether M.H. could be returned to

his custody at the time of the termination trial. See Iowa Code § 232.116(1)(h)(4);

1 The mother’s parental rights were also terminated; she does not appeal.
3

In re A.M., 843 N.W.2d 100, 111 (Iowa 2014) (interpretating “at the present time”

to mean at the time of the termination trial).

In determining anew whether M.H. could have been returned to the father’s

custody at the time of the termination trial in January and February 2024, we review

the relevant facts. The Iowa Department of Health and Human Services became

involved shortly after M.H.’s birth, when it was discovered M.H. and the mother

were living in a garage on a property in rural Iowa. The garage was not a safe

place for M.H., and there were concerns the mother—who previously had her

parental rights terminated to three other children—was using illegal substances

and experiencing issues with her mental health. M.H. was removed from the

mother’s custody in September 2022; the mother reported to the department that

the father was M.H.’s biological father, and paternity testing later confirmed it.2

While the father reported he was “clean and sober” to the department,

based on his history of substance-use related convictions, the department asked

the court to order the father to obtain both substance-use and mental-health

evaluations and to submit to random drug testing. In its March 2023 permanency

order, the court adopted the department’s recommendations and concluded that

the need for removal would no longer exist in six months.

The father began having supervised visits with M.H. in late January 2023.

From the beginning, those visits the father attended went very well. While the

father was not always consistent in attending the visits, when he did, he showed

2 While it appears from the record that the father did not begin to receive
supervised visits with M.H. until late January 2023, he was included in the legal
proceedings from the beginning, starting with the original notice of hearing and
summons filed in September 2022.
4

he was able to provide the necessary care for M.H., appropriately interact with her,

and keep her safe.3 Still, early on in the case, the father did not have a driver’s

license or stable housing he would give the department the address of, and he did

not provide any of the food or items (like diapers) that M.H. required during visits.

The father also failed to complete drug testing when asked and did not follow

through with obtaining a mental-health or substance-use evaluation. Additionally,

the father continued to have run-ins with the mother, who was not participating in

the case, although the father was the named protected party in a no-contact order

with the mother.

By May, the father paid off his fines and got his driver’s license. And by

July, he began bringing his own diaper bag to visits. As of September, he had a

stable residence, which the department approved for visits with M.H. But at the

October permanency hearing, the juvenile court concluded M.H. could not be

returned to the father because he had failed to submit to any requested drug

screens and had yet to complete a substance-use evaluation.

At the time of the termination trial in early 2024, questions about the father’s

ability to otherwise protect and provide M.H. with a safe home persisted. The fully

supervised visits continued to go well, and the father was often commended for his

parenting during those interactions in the visitation reports. But the father’s initial

3 The provider reports from the family support specialist who supervised visits

noted multiple visits where the father fell asleep while sitting with a sleeping M.H.
The provider did not seem to find this to be a safety concern, allowing it to
repeatedly happen without waking the father up. But in a later report to the court,
the social work case manager pointed to these incidents (combined with the fact
the father failed to submit to drug testing) as evidence the father was using illegal
substances.
5

reports of being “clean and sober” turned out to be false—when he finally

completed his substance-use evaluation, he reported using marijuana. And at the

termination trial, the father admitted to near daily use of the drug. Because the

father failed to submit to all six of the drug screens that were requested of him, it

is unknown whether the father’s self-reporting that his last use of

methamphetamine, cocaine, and LSD were all multiple years in the past was

accurate.

The father also changed his tune about the mother—who was not engaged

in the child-welfare case, who seemed to be continuing to use illegal substances

(such as methamphetamine), and whom the father had a no-contact order against

for most of the case. While the father stressed that he and the mother were not a

“package deal” and that he would keep the mother away from M.H. if the child was

in his care, his continued association with the mother and later actions raised

questions. There were several instances throughout the pendency of the case

where the father and mother were caught together—including times where the

father was choosing to drive the mother somewhere. The police report from one

incident in May 2023 quoted the mother as telling the officers who stopped the

vehicle that she saw the father throw methamphetamine, marijuana, and a pipe

out the window before the officers made the stop. After he moved into his home,

the father was asked if the mother was living with him, and he denied it, reporting

she had never been there. But a couple weeks later, while a supervised visit was

taking place at the home, the mother entered and took food from the kitchen, with

no response from the father. And—according to a January 2024 report to the court

filed by the department case manager—the father’s landlord believed the mother
6

was living at the father’s home. Additionally, the father chose to have the no-

contact order dropped in December 2023. Yet at the termination trial in early 2024,

the father bemoaned the mother’s repeated entry into his property, admitting “she

comes whenever she feels like it” but claiming he wanted to keep her out. At the

same time, when asked how he would keep her out of the home if M.H. was

returned to him, the father responded, “Well, I’m going to do my best, but I also

ain’t going to keep her away from him either because that is his mom.” The father

clarified that he would not let the mother be around M.H. when she is high.

We recognize that the father exhibited good parenting skills during fully

supervised visits. But because of the questions that still existed approximately

sixteen months after M.H.’s removal from parental custody about the father’s

sobriety and his ability to keep M.H. safe from the mother, like the juvenile court,

we cannot say that M.H. could be safely returned to the father’s custody at the time

of the termination trial. Therefore, the State proved the ground for termination

under section 232.116(1)(h).

Next, the father argues it is in M.H.’s best interests to establish a

guardianship for M.H. in lieu of terminating the father’s parental rights. See Iowa

Code § 232.104(2)(d)(2) (allowing the court to transfer guardianship and custody

of the child to a suitable person), (4)(a) (allowing the court to establish a

guardianship under section 232.104(2)(d)(2) so long as “termination of the parent-

child relationship would not be in the best interest of the child”). While the juvenile

court seemed to conclude that a guardianship was not appropriate here, we have

not found in the record where a guardianship was requested or a possible guardian

named. Without a named option and evidence supporting the choice of a particular
7

person, we cannot review the factors that are usually considered when determining

whether a guardianship is appropriate in this case. See, e.g., In re A.S., 906

N.W.2d 467, 478 (Iowa 2018) (noting “there was physical and verbal aggression”

in the relationship between the parent and potential guardian when concluding

termination was in the child's best interests); In re O.L, No. 23-1109, 2023 WL

6290677, at *3 (Iowa Ct. App. Sept. 27, 2023) (affirming juvenile court’s decision

to not order a guardianship when the department had “questions about the great-

grandmother’s ability or willingness to set appropriate boundaries when it comes

to the father and the children” and when the great-grandmother did not testify and

was not asked whether she was willing to be the children’s guardian instead of

adopt). With the record we have before us, we cannot say the juvenile court should

have established a guardianship in lieu of termination.

We affirm the termination of the father’s parental rights.

AFFIRMED.