In the Interest of S.M., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 24-0811
Filed July 24, 2024

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

J.M., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Story County, Hunter W. Thorpe,

Judge.

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

Katherine R.J. Scott of New Point Law Firm, PLC, Ames, for appellant

father.

Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney

General, for appellee State.

Shannon M. Leighty of Public Defenders Office, Nevada, attorney and

guardian ad litem for minor child.

Lisa M. Noble of Noble Law PLLC, Des Moines, for intervenor-paternal

grandmother placement.

Considered by Tabor, P.J., and Greer and Schumacher, JJ.
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GREER, Judge.

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

January 2023, pursuant to Iowa Code section 232.116(1)(e), (h), and (l) (2024).1

The father appeals, challenging whether termination is in S.M.’s best interests and

asserting that we should rely on the permissive exception to avoid termination,

grant him a six-month extension of time, or, in the alternative, order a guardianship

with the paternal grandmother instead of terminating his rights. After considering

these challenges, we affirm the termination.

At the child’s birth, her umbilical cord tested positive for amphetamines and

methamphetamine, and the Iowa Department of Health and Human Services (the

department) removed her from the father’s custody less than a week after she was

born. The father refused a drug test requested by the department. Since that time,

the child has never been returned to his custody. After several changes in

placement, the department had most recently placed S.M. with her paternal

grandmother where she remained at the time of the termination trial.

Throughout the case, the father did not demonstrate any consistent period

of sobriety. He admitted to being a daily methamphetamine user through June

2022; to using methamphetamine in May, June, July, and October 2023 and March

2024; and testified at the April 2024 termination hearing that he is an addict. His

outpatient addiction counselor testified that the father has been an addict for many

years and still uses weekly. Along with his admissions of use, the father tested

positive for methamphetamine in June, July, and December 2023 and February

1 The mother’s parental rights were not terminated.
3

2024; he did not attend one or two requested drug tests in February, September,

October, and November 2023 and February and March 2024. He entered inpatient

treatment in May 2023 but left before completing it and against staff advice; he did

the same in February 2024. Although he did attend some outpatient treatment, he

disengaged for two and one-half weeks in March 2024. However, he was

scheduled to begin a thirty-day inpatient treatment program again the day after the

termination hearing followed by twelve weeks of outpatient treatment.

The father also had mental health diagnoses of attention deficit hyperactivity

disorder, depression, anger, and bipolar disorder. The father admitted that his

substance use and his mental-health issues were intertwined but that he was not

actively engaged in mental health services at the time of the termination hearing.

In July 2022, the father was transported to the hospital via ambulance after he

became unresponsive due to a suspected methamphetamine overdose. Visitation

between the father and S.M. was always fully supervised.

In its order terminating the father’s parental rights, the juvenile court found

that “mental health concerns are still present.” The court elaborated that “[w]hen

these concerns are combined with the ongoing substance abuse problems, there

are clear ongoing safety issues that have yet to be addressed. Namely, the risk of

continual methamphetamine use is exacerbated by failing to adequately address

any underlying mental health concerns that may contribute to the substance

abuse.” At the same time, the court found that “there is little concern when it comes

to the [f]ather’s interaction with” S.M. and “he loves the child very much and based

upon the testimony of others, it appears the child loves him too.” However, the

court ultimately determined that “[p]ast conduct is indicative of future progress and
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[the father’s] past conduct provides a bleak outlook on the chances of the child

being able to return to his care any time soon.” More specifically, the court stated

that “[a] child cannot safely be raised in a home where long-term

methamphetamine addictions go on unresolved.” Regarding S.M.’s bond with the

father, the court determined that “while she knows him, she has never known him

in the capacity as a full-time caregiver.” And, it added that she “has already been

removed from the care of [the father] for all but a few days of her life.” Lastly,

“[g]iven the child’s age and lack of stability a guardianship would bring, the

evidence does not support establishing a guardianship.”

The father appeals.

I. Standard of Review.

In general, we follow a three-step analysis in reviewing the termination of a

parent’s rights. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). We first consider

whether the State proved a statutory ground for termination of the parent’s rights

under section 232.116(1). Id. Second, we look to whether termination of the

parent’s rights is in the child’s best interests. Id. (citing Iowa Code § 232.116(2)).

Third, we consider whether any of the exceptions to termination in

section 232.116(3) should be applied. Id. The father does not challenge the

statutory grounds for termination, so we do not address that issue. See id. at 40

(stating that “we do not have to discuss [the first] step” when a parent fails to

dispute the existence of all grounds for termination under section 232.116(1));

Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996) (“[O]ur review is confined to

those propositions relied upon by the appellant for reversal on appeal.”). Thus, we

begin our analysis with his best-interests claim.
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II. Discussion.

A. Best Interests.

First, the father asserts the State has not established by clear and

convincing evidence that termination is in S.M.’s best interests. When making a

best-interests determination, we focus on the child’s safety and need for a

permanent home. In re J.E., 723 N.W.2d 793, 801 (Iowa 2006) (Cady, J.,

concurring specially). And we consider the best placement for furthering the child’s

long-term nurturing and growth and the child’s physical, mental, and emotional

condition and needs. Iowa Code § 232.116(2). But, in making this best-interest

argument, the father relies on the grandmother’s rights as the basis for his

challenge, noting that the termination of his rights would make the grandmother

“merely fictive kin” and jeopardize the stability the grandmother’s home offers. But,

the father does not have standing to make this argument. See In re S.P.,

No. 19-0069, 2019 WL 1294178, at *2 (Iowa Ct. App. Mar. 20, 2019) (noting the

mother did not have standing to raise a challenge on behalf of the grandmother,

who wished to intervene in the proceedings); see also In re D.G., 704

N.W.2d 454, 460 (Iowa Ct. App. 2005) (holding one parent cannot argue facts or

legal positions pertaining to the other parent); In re K.R., 737 N.W.2d 321, 323

(Iowa Ct. App. 2007) (determining a father did not have standing to raise

arguments on another’s behalf in an effort to obtain a reversal of the termination

of his parental rights).

Moving to his argument that the best placement for the child’s safety would

be with him, along with parenting support from the grandmother, we disagree

because his continued substance use supports termination being in S.M.’s best
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interest. See In re A.B., 815 N.W.2d 764, 777 (Iowa 2012) (considering a parent’s

refusal “to acknowledge any illegal drug use despite strong evidence to the

contrary” in assessing a child’s best interests). There is no guarantee that the

grandmother will be a long-term option, and the father’s substance use leads to

safety concerns for S.M. as “[a] parent’s methamphetamine use creates a

dangerous environment for children.” In re A.B., No. 21-1495, 2022 WL 108586,

at *2 (Iowa Ct. App. Jan. 12, 2022); see also In re J.S., 846 N.W.2d 36, 37

(Iowa 2014). Similarly, in looking at the child’s need for a permanent home, “[i]t is

well-settled law that we cannot deprive a child of permanency after the State has

proved a ground for termination under section 232.116(1) by hoping someday a

parent will learn to be a parent and be able to provide a stable home for the child.”

P.L., 778 N.W.2d at 41.

Here, although the father was to begin his third round of inpatient

substance-use treatment, he has never been able to fully complete drug treatment.

And, just a couple of weeks before the termination hearing, he tested positive for

methamphetamine. See In re C.M., No. 18-0600, 2018 WL 3650355, at *2 (Iowa

Ct. App. Aug. 1, 2018) (“The father’s failure to attain long-lasting sobriety has a

direct, negative impact on his ability to provide for this child’s long-term growth and

physical, mental, and emotional well-being.”). This is not a case in which the father

has had any significant periods of sobriety. See In re B.T., 894 N.W.2d 29, 34–35

(Iowa Ct. App. 2017) (reversing and remanding for an order transferring

guardianship and custody of the ten-year-old child to his grandmother because

doing so would lead to more stability than termination of the mother’s parental

rights). In 2018, the father’s parental rights to three other children were terminated
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involving similar concerns over substance use. Significantly, his drug counselor

testified at trial that the father still used methamphetamine on a weekly basis. So,

that lack of progress towards sobriety leads to concerns for S.M.’s safety and

stability.

As a further concern related to the best-interest analysis, the father did

engage in some mental health work,2 but he only had his first individual counseling

appointment the day before the termination trial and, thus, had not completed the

mental-health treatment recommended. He indicated that he was an “emotional

user” of substances, so for the father mental wellness related directly to his

substance use. For these reasons, we find that termination is in S.M.’s best

interests.

B. Permissive Exception.

Next, the father requests that we “reverse termination on the permissive

basis of the closeness of the bond between S.M. and [the] [f]ather.” The closeness

of a parent-child bond may serve as a permissive exception to termination. See

Iowa Code § 232.116(3)(c). It is the father’s burden to establish a permissive

exception. See In re A.S., 906 N.W.2d 467, 475–76 (Iowa 2018). To do so, he

must demonstrate by “clear and convincing evidence that ‘termination would be

detrimental to the child at the time due to the closeness of the parent-child

relationship.’” In re A.B., 956 N.W.2d 162, 169 (Iowa 2021) (quoting Iowa Code

§ 232.116(3)(c)).

2 The father indicated he believed he only need to engage in mental-health
treatment for medication management as opposed to talk therapy.
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There is no dispute that the father loves S.M. and she him. However, here,

the father recently used methamphetamine—only a few weeks before the

termination hearing—and had not demonstrated any significant period of sobriety,

even following inpatient and some outpatient treatment. See In re C.B., 611

N.W.2d 489, 495 (Iowa 2000) (stating the parent “waited too long to respond [to

services], and the underlying problems which adversely affected her ability to

effectively parent were too serious to be overcome in the short period of time prior

to the termination hearing”). Likewise, S.M. has not been returned to her father’s

care or custody since her removal in the first week of her life and has thrived under

the current care arrangement. The father has not established that termination

would be detrimental to the child because of the strength of the bond between him

and S.M., thus, we choose not to rely on the permissive exception to avoid

termination of the father’s parental rights.

C. Six-Month Extension.

In addition, the father requests a six-month extension to work towards

reunification. If the juvenile court decides not to termination parental rights after

the termination hearing, it may find there is clear and convincing evidence that

child-in-need-of-assistance proceedings should continue and enter an order to

extend the time for reunification in accordance with section 232.104(2)(b). See

Iowa Code § 232.117(5). The court may continue the proceedings for an additional

six months if it finds “the need for removal . . . will no longer exist at the end of the

additional six-month period.” Id. § 232.104(2)(b).

Based on the father’s long history of using illegal substances and his

struggle to achieve sobriety, we cannot say the need for removal will be remedied
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within six months. See In re Z.S., No. 15-1535, 2016 WL 757419, at *2 (Iowa Ct.

App. Feb. 24, 2016) (“In determining the future actions of the parent, her past

conduct is instructive.”); see also In re J.P., No. 19-1633, 2020 WL 110425, at *2

(Iowa Ct. App. Jan. 9, 2020) (questioning whether a parent’s relationship with

methamphetamine was over where the parent had a long history of using the drug

and had been sober only two months before the termination hearing); In re K.V.,

No. 19-1775, 2020 WL 110439, at *1 (Iowa Ct. App. Jan. 9, 2020) (“Even assuming

the mother has managed six months of sobriety, a short period of sobriety is not a

reliable indicator of her ability to remain sober when considered in light of her

history, which includes ten years of substance use and several prior failed attempts

at sobriety.”). Likewise, the father planned on five months of drug treatment

starting the day after the termination hearing.

We will not ask a child to wait longer for permanency on the mere hope of

a parent’s improvement. See In re J.S.-M., No. 21-0927, 2021 WL 4304213, at *3

(Iowa Ct. App. Sept. 22, 2021) (affirming the juvenile court’s refusal “to delay

permanency ‘on the mere hope’ that the father would soon learn to become a self-

sufficient parent”); see also In re B.A., No. 11-1507, 2011 WL 5868301, at *2 (Iowa

Ct. App. Nov. 23, 2011) (affirming termination when the father’s “progress was not

sufficient to show more than a mere hope that he might eventually be able to parent

the child safely and consistently”). Instead, “the operative question is whether the

parent can now, or within a short extension of time will be able to, safely care for

the child so that the need for removal will no longer exist.” In re G.B., No. 22-0439,

2022 WL 1657190, at *5 (Iowa Ct. App. May 25, 2022). Here, even if given a short

extension of time, the father would not be able to safely care for S.M. given his
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consistent challenges with his substance use and his mental health. Therefore,

we decline to grant the father an additional six months.

D. Guardianship.

Lastly, the father argues that “the grandmother’s custody and/or

guardianship is in the best interest of S.M. for her long-term care.” See Iowa Code

§ 232.117(5) (allowing the court, if it does not terminate parental rights, to enter an

order under section 232.104); see also id. § 232.104(2)(d)(2) (allowing the court to

enter an order transferring guardianship and custody of the child to an adult

relative). To establish the guardianship, the court must determine by clear and

convincing evidence that “termination of the parent-child relationship would not be

in the best interest of the child.” Id. § 232.104(4)(a).

Yet, as we have often stated, “a guardianship is not a legally preferable

alternative to termination.” B.T., 894 N.W.2d at 32. And, when the statutory

requirements for termination are met, we may order either termination or a

guardianship. See, e.g., In re N.M., No. 17-0054, 2017 WL 1088119, at *3 (Iowa

Ct. App. Mar. 22, 2017); In re S.C., No. 15-1912, 2016 WL 903029, at *4 (Iowa Ct.

App. Mar. 9, 2016). At the same time, “[a]n appropriate determination to terminate

a parent-child relationship is not to be countermanded by the ability and willingness

of a family relative to take the child.” In re C.K., 558 N.W.2d 170, 174 (Iowa 1997).

Because we find that a guardianship is not in S.M.’s best interest for the reasons

discussed above, we are unable to order one in lieu of termination. See Iowa Code

§ 232.104(4)(a).

AFFIRMED.