In the Interest of P.K., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 19-0887
Filed August 7, 2019

IN THE INTEREST OF P.K.,
Minor Child,

J.K., Father,
Appellant,

J.T., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Clayton County, Linnea M.N. Nicol,

District Associate Judge.

A mother and father separately appeal the termination of their parental

rights to their five-year-old daughter. AFFIRMED ON BOTH APPEALS.

Cory R. Gonzales of Law Office of Cory R. Gonzales PLLC, Strawberry

Point, for appellant father.

John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant mother.

Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant

Attorney General, for appellee State.

Mary Beth A. Fleming, Dubuque, attorney and guardian ad litem for minor

child.

Considered by Tabor, P.J., and Mullins and May, JJ.
2

TABOR, Presiding Judge.

Jennifer and John separately appeal the termination of their parental rights

to five-year-old P.K. They contend the State did not offer clear and convincing

evidence of the statutory grounds for termination; termination is not in P.K.’s best

interests; and termination would be detrimental to P.K. because of the parent-child

bond. After an independent review of the record,1 we affirm.

I. Facts and Prior Proceedings

John assaulted Jennifer in the presence of their children, P.K., and her

younger sister, A.K. The Iowa Department of Human Services (DHS) also

received reports the parents were using methamphetamine while caring for the

children. In a child-abuse assessment, the DHS determined both parents were

responsible for a failure to properly supervise the children and for the presence of

illegal drugs when A.K.’s hair sample tested positive for methamphetamine.

During the assessment, Jennifer admitted using methamphetamine “once in a

while” and within thirty days of the assault. Afterward, Jennifer denied both that

she ever used drugs and that she ever admitted to using drugs. For his part, John

has a long history of abusing drugs, especially methamphetamine. The DHS

removed the children and placed them in the same foster home, where they have

remained throughout these proceedings.

1
Our review is de novo. In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). We are not bound
by the juvenile court’s factual findings, but we give them weight, especially when witness
credibility is critical to the outcome. Id. Proof must be clear and convincing, meaning
there are no “serious or substantial doubts as to the correctness [of] conclusions of law
drawn from the evidence.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).
3

The juvenile court adjudicated then three-year-old P.K. and five-month-old

A.K. as children in need of assistance (CINA). The adjudication rested on the

parents’ failure to exercise a reasonable degree of supervision and because the

parents’ drug abuse resulted in the children not receiving adequate care. See Iowa

Code § 232.2(6)(c)(2), (n) (2017). The case permanency plan required both

parents to (1) obtain substance-abuse evaluations and follow treatment

recommendations; (2) obtain mental-health evaluations and follow treatment

recommendations; (3) submit to random drug testing; and (4) attend Family Safety,

Risk, and Permanency (FSRP) sessions focusing on parenting skills, budgeting,

and relapse prevention.

From the outset, Jennifer had trouble cooperating with the DHS and service

providers. She was routinely combative, hostile, and verbally abusive to the FSRP

worker assigned to her case. She lashed out both in person and over phone,

email, and text, including while in the presence of the children. At times she was

aggressive and threatening. For instance, during one visitation, the FSRP worker

called law enforcement because Jennifer was yelling swear words and threatening

to kill herself—in front of the children. Visitation remained fully supervised, and

Jennifer missed or was late to many interactions, especially toward the end of the

case.

As part of the recommended services, Jennifer attended a joint mental-

health and substance-abuse evaluation. The therapist diagnosed her with

adjustment disorder with anxiety and depressed mood and recommended

individual mental-health counselling. But the therapist found Jennifer had no drug

or alcohol-abuse problem, thus offering no recommendations for substance-abuse
4

treatment. The DHS caseworker testified Jennifer did not report her history of drug

abuse to the therapist.

Even so, DHS and FSRP workers often noted signs of ongoing drug use:

Jennifer attended visitations with sores on her face and arms, appeared

disheveled, and was emotionally unstable. Once, she fell asleep. The court

repeatedly ordered Jennifer to obtain another substance-abuse evaluation, but

Jennifer never did so. Jennifer also refused to participate in drug testing. In

October 2017, March 2018, and December 2018, she attended tests she

scheduled for herself, and each one was negative for drugs. But, over twenty-one

months and forty-four randomly scheduled tests, she appeared for only four. Three

of those four times, she refused to give a hair sample. On the fourth appearance,

she reported the sweat patch applied to detect drug use fell off before a result

could be obtained.

On top of her failure to address her substance abuse, Jennifer never

completed the recommended mental-health counselling. The juvenile court also

ordered her to seek help with anger management, but she did not. Although the

court ordered Jennifer to participate in FSRP “skill-based” sessions along with

visitation, she attended only thirteen of fifty-seven offered sessions.

Like Jennifer, John participated in the FSRP “skill-based” sessions only

sporadically, but he appeared receptive when he did attend. John was more

cooperative than Jennifer with the DHS and FSRP workers. He acted

appropriately during their interactions. But he also refused to engage in regular

drug testing. Out of twenty-eight offered tests, John attended only one, where his

sweat patch tested positive for methamphetamine. John did not complete ordered
5

substance-abuse treatment. He has been in and out of jail during these

proceedings. In November 2018, John was arrested on federal firearms charges

and placed in the Linn County jail, where he remained through the termination

hearings. Jail policy prohibited visitation with children under sixteen. John testified

he had been sober since his arrest.

In October 2018, the juvenile court terminated both Jennifer’s and John’s

parental rights to their younger child, A.K. After this development, Jennifer’s

commitment to visiting her older daughter deteriorated. Jennifer missed more than

half of the offered visits.2 John was incarcerated and denied visits in the jail.

Two months later, the State petitioned to terminate parental rights to P.K.

At the hearing, the FSRP worker testified that while P.K. retains a bond with both

Jennifer and John, the child has been harmed by Jennifer’s inappropriate

comments and erratic behavior. The worker highlighted P.K.’s loving relationship

with her foster parents, to whom she turns for comfort and support. The record

showed P.K. was thriving in their home, alongside her younger sister.

The juvenile court terminated Jennifer and John’s parental rights under Iowa

Code section 232.116(1)(e), (f), and (g). The court specifically found Jennifer was

not credible, explaining, when Jennifer is angry, “she cannot be reasoned with, nor

can she answer questions thoughtfully”; her “denials are complete and without

2
In November 2018, the juvenile court dismissed a petition to terminate parental rights
under Iowa Code section 232.116(1), paragraph (e) (2018), for failure to maintain
meaningful and significant contact. The court found the State failed to show the parents
had made no reasonable effort to resume care of P.K.: “While the parents’ efforts have
not been sufficient to remedy the fear of adjudicatory harm if the children were returned to
their care, the parents have made some efforts to regain the custody of [P.K.]”
6

exception”; and her complaints were pulled “out of thin air despite overwhelming

evidence to the contrary.”

Jennifer and John each filed petitions on appeal.

II. Statutory Grounds

When the juvenile court terminates parental rights on more than one

ground, “we need only find termination appropriate under one of these sections to

affirm.” In re J.B.L., 844 N.W.2d 703, 704 (Iowa Ct. App. 2014). We focus on

section 232.116(1)(f). That paragraph requires proof of four elements: (1) the child

must be at least four years old; (2) the child must have been adjudicated in need

of assistance; (3) the child must have been removed from the home for at least

twelve of the last eighteen months, or for the last twelve consecutive months with

any period at home being less than thirty days; and (4) the child cannot be returned

to the home as provided in section 232.102 at the present time. John contends he

has alleviated the danger of harm, so he can resume care of P.K., but he also

acknowledges he is currently incarcerated.3 Jennifer likewise contends P.K. can

be returned to her care.

The record disproves the parents’ contentions. The DHS caseworker gave

both parents what she called “refrigerator lists” to help them understand the case

expectations and work toward reunification with P.K. The lists were fairly short

with clear goals for the parents. Yet Jennifer and John showed little progress. For

3
John contends he will be released in six months; but he cannot resume custody of P.K.
at the present time, even if he had complied with the other case requirements. See D.W.,
791 N.W.2d at 707 (interpreting statutory language “at the present time” to mean the time
of the termination hearing).
7

instance, neither parent completed the required substance-abuse treatment or

demonstrated their sobriety sufficiently to erase the concerns of the CINA

proceedings.

Especially worrisome was the parents’ refusal to participate in random drug

testing. Their recalcitrance undermines their claims they can resume custody now.

The parents routinely made excuses for missing tests—claiming service providers

did not notify them or offer transportation assistance. Their excuses did not

withstand scrutiny. Jennifer did submit three clean drug tests, but she scheduled

them at her convenience. We are more persuaded by the dozens of tests she

skipped, combined with the social worker’s observations of her conduct and

physical condition during visitations. Even when Jennifer appeared for testing, she

did not submit samples. When John did provide one sample, it tested positive for

methamphetamine.

Domestic violence first brought this family to DHS attention, but it was the

parents’ admission of drug use and the presence of methamphetamine in A.K.’s

system that animated the continuing need for removal. The parents’ failure to

embrace services that would address issues of substance abuse and mental

health left P.K.’s future in a precarious position. At the time of the termination

order, P.K. had been out of her parents’ care for nearly two years.

We agree with the juvenile court’s conclusion neither John nor Jennifer can

resume care of P.K. at the present time. The State met the statutory grounds for

termination for both parents.
8

III. Best Interests

Next, Jennifer and John argue it is not in P.K.’s best interests to terminate

their rights. In making the best-interests determination, we give primary

consideration to the child’s safety, the best placement for furthering her long-term

nurturing and growth, as well as her physical, mental, and emotional condition and

needs. Iowa Code § 232.116(2); In re P.L., 778 N.W.2d 33, 37 (Iowa 2010). That

consideration may include a child’s integration into her foster family and whether

the foster family is willing to adopt. See Iowa Code § 232.116(2)(b). Safety and

the need for a permanent home mark the “defining elements in a child’s best

interest.” In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring

specially).

Waiting to see if John and Jennifer can become stable, drug-free parents is

not in P.K.’s best interests. As the juvenile court found, John was unavailable and

“refused to participate in random drug testing and services designed to return the

child to his care.” Likewise, Jennifer was “unwilling to work through the case plan.”

P.K. has been with the same foster parents for nearly two years. She is thriving in

their care and looks to them for the stability her parents could not provide. The

record shows by clear and convincing evidence that termination serves her best

interests.

IV. Closeness of Parent-Child Relationship

Jennifer and John also allege termination would be detrimental to P.K.

because of the closeness of the parent-child relationship. See Iowa Code

§ 232.116(3)(c). The evidence shows P.K. does share a bond with Jennifer and

John and enjoys visitation. But the record does not suggest their relationship is so
9

close that termination would be detrimental to P.K. During the nearly two years

outside of her parents’ care, she has developed a strong bond with her foster

parents. See D.W., 791 N.W.2d at 709. Section 232.116(3)(c) does not stand in

the way of termination.4 We affirm the juvenile court order.

AFFIRMED ON BOTH APPEALS.

4
Jennifer and John mention they should have been given additional time to work toward
reunification. This passing comment does not preserve the request for our review, even
if we assume they raised the point in the juvenile court. See Soo Line R.R. Co. v. Iowa
Dep’t of Transp., 521 N.W.2d 685, 691 (Iowa 1994) (finding random mention of an issue
without elaboration or supportive authority could not merit the court’s consideration).
Jennifer and John also complain about communication difficulties and conflicts with DHS
and FSRP workers; Jennifer complains these difficulties “inhibited [her] ability to more fully
take advantage of the service provided to her.” She contends the DHS “should have
changed out providers as this conflict directly interfered with Jennifer’s ability to
demonstrate a willingness to cooperate with services.” Again, assuming Jennifer made
such requests in the juvenile court, they are too underdeveloped to review on appeal.