In the Interest of A.M., L.M., T.M., and K.M., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 21-1035
Filed September 22, 2021

IN THE INTEREST OF A.M., L.M., T.M., and K.M.,
Minor Children,

M.M., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Susan Cox, District

Associate Judge.

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

AFFIRMED.

Adam M. Stone, Urbandale, for appellant father.

Thomas J. Miller, Attorney General, and Tabitha J. Gardner, Assistant

Attorney General, for appellee State.

Nicole Garbis Nolan, Des Moines, attorney and guardian ad litem for minor

children.

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

TABOR, Presiding Judge.

The fate of siblings A.M., L.M., T.M., and K.M. rests with our court for the

second time this year. In March, we affirmed the termination of their mother’s

parental rights based on her “continuous substance abuse over five years and four

pregnancies and lack of meaningful insight about how her substance abuse affects

her children.” In re A.M., No. 20-1685, 2021 WL 815892, at *2 (Iowa Ct. App.

Mar. 3, 2021). We also rejected the option of placing sole custody with their father,

Matthew. We cautioned: “The father had yet to demonstrate he could individually

care for the children and set up appropriate boundaries to protect the children from

the mother’s ongoing substance abuse outside of a controlled setting.” Id. at *4.

As it turns out, our concerns were justified. Matthew struggled with solo

care of the four children—ages thirteen, five, three, and two years—and could not

set boundaries with their mother. Noting those deficiencies, the juvenile court

terminated his parental rights in July. He challenges that ruling, arguing he was

ready to resume care. See Iowa Code § 232.116(1)(f)(4), (h)(4) (2021). He also

contends termination was not in the children’s best interests. See id. § 232.116(2).

And he insists exceptions exist that would allow us to avoid termination. See id.

§ 232.116(3)(a), (b), (c). After reviewing the record anew, we reject all three

claims.1 These sentiments of the juvenile court ring true: “Despite five years of

1We review orders terminating parental rights de novo. In re W.M., 957 N.W.2d
305, 312 (Iowa 2021). While the juvenile court’s factual findings do not bind us,
we give them respectful consideration, especially on credibility determinations. Id.
The State must prove the statutory ground for termination by clear and convincing
evidence. Id. That standard means we harbor no serious or substantial doubts
about the accuracy of the legal conclusions drawn from the evidence. Id.
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DHS[2] services and three years of Court involvement, the father cannot safely care

for the children.”

I. Facts and Prior Proceedings

We pick up the family’s story where we left off in the previous appeal. At an

October 2020 hearing on the State’s petition to terminate the mother’s parental

rights, the court set expectations for Matthew. The court believed the children

could return to the father’s care in two months if he set up daycare and made other

arrangements to enable him to be their sole caretaker. The court emphasized that

he must show “that he can maintain the children separate from their mother, and

that he can be protective and meet their needs.”

Acting on the court’s expectations, in January 2021 the DHS began semi-

supervised visits between Matthew and the children. He also transported the

children to and from appointments and school. The Family Centered Services

(FCS) worker observed that Matthew grew more involved and the interactions

generally went well, though sometimes the children returned from the visits

complaining about being hungry.

But in mid-January, a DHS worker saw the mother at Matthew’s home on

back-to-back days. At first Matthew lied about her being there but then admitted

that he was still seeing her. Because the mother was expecting their fifth child,

Matthew expressed concern for the baby’s welfare. He told the FCS worker it was

2The Department of Human Services did a family assessment when the parents’
second child, L.M., tested positive for THC at birth in 2016. See In re A.M., 2021
WL 815892, at *1 n.1. The mother also used methamphetamine during that
pregnancy. Id. The third child, T.M., likewise tested positive for THC and
methamphetamine at birth in 2018. Id. at *1.
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“heartless” that the DHS would not allow their family to stay together. He also

expressed optimism that this baby would not test positive for substances at birth

because the mother was “clean” and engaged in outpatient treatment.3

Also in January, the grandparents, who have been caregivers for the four

children, reported that Matthew was disrespectful toward them. He was upset that

they did not have the children ready for school when he came to pick them up.

When the DHS worker asked Matthew about the conflict, he complained the

grandparents were “doing less and less, and making him do more and more.” The

worker explained that was the essence of becoming the primary caregiver—an

explanation that upset Matthew. The FCS worker also reported that Matthew

continued to “become overwhelmed” when supervising all the children.

With those events in mind, the juvenile court decided at a March

permanency review hearing that Matthew still struggled to safely parent the

children and set boundaries with the mother. The State then petitioned to

terminate Matthew’s parental rights to A.M., L.M., T.M., and K.M. under Iowa Code

section 232.116(1)—paragraph (f) for the two oldest children and paragraph (h) for

the two younger children.

At the April termination hearing, Matthew testified that he was trying to

comply with the DHS directive that he protect the children from the risk of the

mother’s substance abuse. But he downplayed the extent of her addiction: “I do

believe in the three years of this case that she has not actively used continuously.”

3 As it turns out, when the mother gave birth to G.M. in February 2021, the umbilical
cord blood tested positive for amphetamines and methamphetamine. Still Matthew
insisted it was a “false positive.”
5

And he acknowledged having “romantic discussions” with the mother while she

was in jail in February and March. Yet he insisted he was “no longer in a

relationship with her.” The juvenile court did not find his testimony to be credible,

and granted the termination petition. Matthew appeals.

II. Analysis

We analyze termination cases in three steps. In re P.L., 778 N.W.2d 33, 40

(Iowa 2010). First, we decide whether the State proved a ground for termination

in section 232.116(1). Id. If so, we consider whether termination is in the best

interests of the children by applying the factors in section 232.116(2). Id. If the

best-interests test is met, we turn to the permissive factors listed in section

232.116(3) to see if any override termination. Id. at 41.

A. Statutory Basis for Termination

Matthew first argues the State failed to offer clear and convincing evidence

to support termination under Iowa Code section 232.116(1)(f) and (h). He focuses

on the fourth element—proof that the children could not be returned to his care at

the time of the termination hearing. See In re M.W., 876 N.W.2d 212, 223–24

(Iowa 2016). Matthew asserts: “At the time of the second termination hearing, [he]

had faithfully complied with the case permanency plan and engaged in all

recommended services.” He points out that he maintained sobriety, took parenting

courses, attended visitation, was employed, and had appropriate housing. Indeed,

it is the strength of his efforts that led the juvenile court to believe that Matthew

could resume custody by early 2021.

Yet Matthew had one blind spot: he couldn’t see the danger that the

mother’s ongoing substance abuse posed to the children. The juvenile court had
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no faith that Matthew would protect them from their mother’s addiction—even after

her parental rights were terminated and their fifth child was born drug-exposed.

We share the court’s concern that Matthew’s unwillingness to limit contact with the

mother cannot be overlooked. Our supreme court has recognized the hazards of

unaddressed methamphetamine addictions. In re A.B., 815 N.W.2d 764, 776

(Iowa 2012). Matthew’s continued association with a drug user, despite knowing

it could result in the termination of his own parental rights, shows the children could

not be returned to his care at the time of the hearing. In re K.L., No. 15-0444, 2015

WL 4486182, at *4 (Iowa Ct. App. July 22, 2015).

On top of that, the State presented clear and convincing evidence that

Matthew could not handle the supervision of all the children as their sole caregiver.

Termination was proper under paragraphs (f) and (h).

B. Best Interests

We next evaluate whether the termination of Matthew’s parental rights

would be in the best interests of the children under section 232.116(2). M.W., 876

N.W.2d at 224. In doing so, we give “primary consideration” to their safety, to the

best placement for furthering their long-term nurturing and growth, and to their

physical, mental, and emotional condition and needs. Iowa Code § 232.116(2).

Matthew asserts he has addressed the safety concerns that led to removal

of the children from his care. That assertion is not entirely true. As discussed

above, Matthew’s bad judgment in continuing a romantic relationship with the

mother poses an ongoing risk to the children. See In re C.S., 776 N.W.2d 297,

300 (Iowa Ct. App. 2009) (“We also are mindful of the best interests of the children

who are the unintended victims of their parents’ dangerous lifestyle.”). The
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immediate and long-term needs of the children will be best served by termination

of Matthew’s parental rights. The grandparents have provided stability for three

years and are committed to the children. They intend to allow Matthew to stay

involved with the family as long as he can be safe and remain sober.

C. Permissive Factors

Having established termination is in the children’s best interests, the last

step of our analysis is to determine whether any permissive factors in section

232.116(3) apply to preclude the termination. M.W., 876 N.W.2d at 225. Matthew

urges three factors: (1) the grandparents have custody of the children; (2) A.M.,

who is over ten years old, objects to the termination; and (3) there is clear and

convincing evidence that the termination would be detrimental to the children

because of the closeness of their relationship with him. See Iowa Code

§ 232.116(3)(a), (b), (c); see also In re A.S., 906 N.W.2d 467, 476–77 (Iowa 2018)

(holding parent resisting termination bears burden to establish exception under

section 232.116(3)).

On the first factor, our record does not show the grandparents have

“legal custody” of the children. See Iowa Code § 232.116(3)(a); see also In re

A.M., 843 N.W.2d 100, 113 (Iowa 2014). And even if they did, Matthew has not

proved their custody is a viable reason to avoid termination of his parental rights.

The grandparents are a stable force in the children’s lives. They have gained

insight into their daughter’s addiction and have protected the children. Allowing

them to move forward with adoption is the best option for the children’s future.

On the second factor, the juvenile court highlighted A.M.’s inconsistent

positions on the subject of terminating her father’s rights. On the one hand, A.M.
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told her guardian ad litem that she felt like she “didn’t have a voice” in the outcome

and wanted to return to her father’s care. On the other hand, the thirteen-year-old

told the DHS case worker that she would rather be with her siblings in the

grandparents’ adoptive home. So the court could not find by clear and convincing

evidence that A.M. objected to the termination.

In the alternative, the court declined to apply this permissive exception

based on A.M.’s need for permanency and stability.4 We agree with the juvenile

court. A.M.’s mixed feelings did not require the court to bypass termination in this

situation. See In re A.R., 932 N.W.2d 588, 592 (Iowa Ct. App. 2019).

On the third factor, we do not find clear and convincing evidence that the

termination would be detrimental to the children because of the closeness of their

relationship with Matthew. We do not doubt Matthew’s love for the children. But

our assessment centers on whether they will be “disadvantaged by termination”

and whether any disadvantage outweighs Matthew’s lack of protective capacity.

See In re D.W., 791 N.W.2d 703, 709 (Iowa 2010). Matthew had not offered

sufficient evidence of that disadvantage to invoke this permissive factor.

AFFIRMED.

4 As the oldest, A.M. has been most battered by the rough seas of parental
substance abuse. Her concerning behaviors prompted the FCS worker to
recommend she reengage with Behavior Health Intervention Services (BHIS), but
Matthew had not arranged for that intervention by the time of the termination
hearing.