In the Interest of S.H. and S.G., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 20-1674
Filed August 18, 2021

IN THE INTEREST OF S.H. and S.G.,
Minor Children,

T.H., Father of S.H.,
Appellant,

M.G., Father of S.G.,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,

District Associate Judge.

Two fathers separately appeal from the termination of their parental rights

to their children. AFFIRMED ON BOTH APPEALS.

Andrea B. McGinn, Van Meter, for appellant father of S.H.

David Barajas of Macro & Kozlowski, LLP, West Des Moines, for appellant

father of S.G.

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

Attorney General, for appellee State.

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

guardian ad litem for minor children.

Considered by Tabor, P.J., Greer, J., and Mahan, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021).
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MAHAN, Senior Judge.

Two fathers separately appeal from the termination of their parental rights

to their children, S.H., born in 2016, and S.G., born in 2018.1 The father of S.H.

claims termination was not in his child’s best interests and the juvenile court erred

by not placing the child in a guardianship with the paternal grandmother. The

father of S.G. contends termination was not in his child’s best interests and the

State failed to prove the grounds for termination cited by the juvenile court. We

affirm on both appeals.

I. Background Facts and Proceedings

This family came to attention of the department of human services in April

2018, when S.G. tested positive for THC at birth. In May, the mother moved to

Minnesota with the children, and the department ended its involvement. Shortly

thereafter, unbeknownst to the department, the mother and children returned to

Iowa. In August, Iowa law enforcement arrested the mother, who was a convicted

sex offender in Minnesota, for violating sex offender registration requirements.

The department became involved with the family again, and the mother provided

a drug screen that was positive for methamphetamine and cocaine. S.G.’s father

was incarcerated on a drug trafficking conviction. S.H.’s father lived in Minnesota,

had a criminal history for domestic-assault and drug-related crimes, and had an

active warrant for domestic assault. The children were adjudicated in need of

assistance and removed from the mother’s care.

1 The mother filed an appeal and a voluntary dismissal; her appeal was dismissed.
3

The children were initially placed with S.G.’s half-sibling under department

supervision, but that placement was modified in March 2019, upon the department

learning the mother was taking S.H. to Minnesota with S.H.’s father, in violation of

a no-contact order and a court order authorizing only supervised visitation for the

parents. At that time, the Minnesota department had an open assessment relating

to S.H.’s father and another child, due to reports that he was using heroin and

living in his car with that child. The children were placed in separate foster homes.

The court entered a permanency order in September 2019, noting progress

by the children’s fathers. S.G.’s father was out of prison, engaged in visitation,

had transitioned from a halfway house to his own home, and had provided “clean”

drug screens for the department and his probation officer. S.H.’s father was out of

prison, engaged in therapy, and “report[ed a] sobriety date [of] March 2019.” The

mother and S.H.’s father requested the children be placed with S.H.’s paternal

grandmother, but the department had not approved that placement due to “erratic

behaviors” by the paternal grandmother and her failure to complete a drug screen.2

The court granted the parents a six-month extension to continue to work toward

reunification.

In a December 2019 permanency review order, the court noted the

grandmother had “not provided a drug screen as requested,” “her behavior [wa]s

erratic and defensive,” and the court could not “assure her cooperation or

protective capacity based on her actions.” The court further noted S.H.’s father

2 In October 2019, the guardian ad litem visited the paternal grandmother’s home
in Minnesota. The guardian ad litem recommended placement of S.H. with the
paternal grandmother “subject to” the grandmother providing “a negative drug
screen.”
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had “relapsed on heroin since the last hearing” and was “not providing drug

screens as requested.” The court instructed the department to “develop an

appropriate concurrent plan” for S.H. However, S.G.’s father “continue[d] to be

engaged fully in visits and services.” The court ordered S.G.’s father’s visitation to

“increase and [the] parties [to] develop an appropriate transition plan.” The goal

remained reunification for both children.

Unfortunately, gains toward stability by S.G.’s father were short-lived. In

January 2021, he relapsed on marijuana and cocaine. He continued to miss drug

screens the next several months, and his fiancé also failed to provide a drug

screen. The court’s March 2021 permanency review order noted concern “that he

chose to use knowing that he was working towards reunification” and stated he “is

minimizing the impact of his cocaine usage and his substance abuse history.” The

court ordered his visits be reverted to fully supervised. The court noted S.H.’s

father’s “situation has also worsened since the extension was granted.” In addition

to relapsing on heroin, S.H.’s father “ha[d] continued to use,” his substance-abuse

evaluation recommended inpatient treatment, and he was “not consistent” with his

visits with S.H. The court directed the State to initiate termination proceedings.

The termination hearing took place over three days in September and

October 2020. On October 7, after receiving evidence of a clean drug screen by

the paternal grandmother, the court ordered that S.H. be placed in a foster care

placement with the paternal grandmother, under department supervision. The

record before the juvenile court indicated the children had been removed since

August 2018, and visits with the parents were fully supervised. The department

caseworker noted the parents had acknowledged recent relapses and failed to
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provide consistent drug screens. In light of these and other concerns, the

department and the guardian ad litem recommended termination of parental rights

as to both children.

In December 2020, the court entered an order terminating the parental

rights as to both children. Specifically, the court ordered termination of S.H.’s

father’s parental rights pursuant to Iowa Code section 232.116(1)(b), (e), and (f)

(2020), and S.G.’s father’s parental rights pursuant to section 232.116(1)(h). The

fathers separately appeal.

II. Standard of Review

Appellate review of termination-of-parental-rights proceedings is de novo.

In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our primary consideration is the

best interests of the children, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the

defining elements of which are the children’s safety and need for a permanent

home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).

III. Discussion

On appeal, S.H.’s father claims termination was not in his child’s best

interests and the juvenile court erred by not placing the child in a guardianship with

the paternal grandmother. The father of S.G. contends termination was not in his

child’s best interests and the State failed to prove the grounds for termination cited

by the juvenile court. We address these arguments in turn.

A. S.H.’s Father’s Appeal

As the juvenile court observed, S.H.’s father was unsuccessfully discharged

from inpatient treatment in early September 2020 “due to relapsing in treatment.”

And, at the termination hearing, the father acknowledged he had provided a
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positive drug screen for “opiates and methamphetamine” since his release from

inpatient treatment. With regard to his sobriety, he testified he was “taking it one

day at a time” and he was starting outpatient treatment “[t]omorrow.” He stated his

fiancé was also in inpatient treatment for “crack” or “methamphetamine.” His last

electronic visit with S.H. was in August 2020, and his last in-person visit was in

November 2019. He acknowledged that he had pending criminal charges, but

stated, “[I]t wasn’t me. So when I go to court, it will be dismissed.” In addition to

these concerns, the court noted, “He has been expected to address his history of

domestic violence in therapy,” but “[t]he court has no evidence that he has

addressed domestic violence.” Under these facts and circumstances, we find

termination of S.H.’s father’s parental rights is in the child’s best interests. See In

re A.S., 906 N.W.2d 467, 474 (Iowa 2018) (citing Iowa Code § 232.116(2)).

We are also not persuaded by the claim that the court erred in declining to

place S.H. in a guardianship with the paternal grandmother rather than terminating

parental rights. As a general matter, “a guardianship is not a legally preferable

alternative to termination.” Id. at 477 (quoting In re B.T., 894 N.W.2d 29, 32 (Iowa

Ct. App. 2017)). That notion rings true in this case. The department caseworker

testified she last had contact with S.H.’s father in “June of 2020.” And S.H. had

very recently been placed in the paternal grandmother’s care. As the court

observed:

[S.H.’s father] has struggled with his addiction since the beginning of
this case. He has not been a consistent parental figure to his child.
It is not in [the child’s] best interests to continue to suspend the
crucial days of childhood while the parents experiment with ways to
face up to their own problems. . . . [S.H.] is now placed with his
grandmother . . . . She has testified that she will adopt if termination
happens. He is able to be with family.
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S.H. needs and deserves stability. Although it was not an easy road to placement

with his paternal grandmother, by all accounts, S.H.’s needs are being met in his

grandmother’s care and he is integrated into her home. That placement provides

hope for future long-term stability for the child. We agree a guardianship is not an

appropriate alternative to termination in this case.

B. S.G.’s Father’s Appeal

S.G.’s father challenges the statutory grounds for termination. Iowa Code

section 232.116(1)(h) requires proof of several elements conceded by the father,

as well as proof the child could not be returned to his custody. The father contends

the evidence did not establish S.G. could not be returned to his care at the present

time. According to the father, “The [d]epartment’s main reason for requesting

termination of [his] rights was due to his alleged substance abuse,” but he “had

one relapse in January of 2020, obtained a substance abuse evaluation which

recommended no treatment, [and] complied with [drug testing] through his parole

officer before the program was stopped due to Covid-19.” He claims that “[a]t the

time of the termination of parental rights trial [he] was fully able, capable, and

willing to have S.G. placed in his care.”

Indeed, a caseworker testified that the department “had begun progressing

[the father’s] visits” until the “setback in January of 2020 when he relapsed on

cocaine.” But she further stated that, “since that time, we haven’t been able to get

[the father] to complete a drug screen.” In March 2020, the court ordered that

S.G.’s father “shall participate in random drug screens to include the sweat patch.”

Thereafter, in June, the father refused a sweat-patch test, despite understanding
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that his refusal would be considered “a positive drug screen.” He acknowledged

he had declined to give “three or four” additional drug screens since the last court

hearing. His fiancé had also refused a drug screen. In August, the department

learned the father had not been providing drug screens for his parole officer

because he “had told her he was doing ‘the patch.’” The caseworker opined “this

was not truthful as [the father] has not been willing to comply with sweat patch drug

screens.” A different caseworker noted the father’s failure to provide drug screens

was “not just a logistical issue,” and she expressed “concerns that drug screens

have not consistently been done” with regard to the “longevity” of his role as a

“primary parent.”3 Based on these and the other facts detailed above, we concur

with the court’s assessment that S.G. could not be returned to the father’s care at

the time of the termination hearing. Iowa Code section 232.116(1)(h) was

satisfied.

Termination must also serve the child’s best interests. See Iowa Code

§ 232.116(2). We acknowledge the bond shared between S.G. and the father and

the testimony regarding the parenting ability shown by the father during visitations.

But ultimately, as the department noted, “[S.G.’s father] has a long history of

criminal involvement in illegal substances. He has not been able to demonstrate

that he can maintain long-term sobriety in the community.” The child is in need of

permanency. We conclude termination is in the child’s best interests, and no

permissive statutory exception should be applied to preclude termination.

3S.G.’s father testified that he has eleven children, who had all lived with their
mothers, and he had not been a primary parent for any of those children.
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Having addressed the issues raised on the fathers’ appeals, we affirm the

termination of their parental rights.

AFFIRMED ON BOTH APPEALS.