In the Interest of J.K. and R.K., Minor Children, T.K., Father

IN THE COURT OF APPEALS OF IOWA

No. 16-0105
Filed March 23, 2016

IN THE INTEREST OF J.K. AND R.K.,
Minor Children,

T.K., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Story County, Stephen A. Owen,

District Associate Judge.

A father appeals the termination of his parental rights to his children,

contending his trial counsel provided ineffective assistance. AFFIRMED.

Colin McCormack of Van Cleaf & McCormack Law Firm, LLP, Des

Moines, for appellant father.

Thomas J. Miller, Attorney General, and Janet Hoffman, Assistant

Attorney General, for appellee State.

Shannon M. Leighty, Assistant Public Defender, Nevada, for minor

children.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2

DOYLE, Judge.

The father of J.K. and R.K. appeals from the termination of his parental

rights, contending his trial counsel provided ineffective assistance in failing to

submit certain evidence at the termination-of-parental-rights hearing. When filing

his petition on appeal, the father’s appellate counsel did not have the benefit of

the transcript of that hearing.1 It is therefore understandable how the father could

have been misled by certain statements made by the juvenile court in its order

terminating the father’s parental rights. However, unlike the father’s appellate

counsel, we have the benefit of the transcript for review. After reviewing the

entire record, including the transcript, we conclude the father’s allegations on

appeal are not supported by the record. We therefore affirm the juvenile court’s

order terminating the father’s parental rights.

We review termination-of-parental-rights proceedings de novo. In re A.M.,

843 N.W.2d 100, 110 (Iowa 2014). To establish an ineffective-assistance-of-

counsel claim in a termination-of-parental-rights case, a parent must show that a

deficiency in counsel’s performance actually resulted in prejudice to the parent.

See In re A.R.S., 480 N.W.2d 888, 891 (Iowa 1992). “We presume that

counsel’s conduct falls within the range of reasonable professional competency,”

and the burden of proving otherwise is on the parent. See id.

1
Our expedited-appeal rules in termination-of-parental-rights cases require the notice of
appeal to be filed within fifteen days from a final order. See Iowa R. App. P. 6.101(1)(a).
The petition on appeal must then be filed within fifteen days of the filing of the notice of
appeal. See Iowa R. App. P. 6.201(1)(b). As a practical matter, the transcript of the
hearing on the petition to terminate parental rights is not available to the parties before
the deadline for filing a petition on appeal or responses thereto.
3

Following a hearing, the juvenile court in January 2016 entered its order

terminating the parents’ parental rights.2 On appeal, the father claims his trial

counsel was ineffective because counsel failed to submit certain evidence at the

termination-of-parental-rights hearing the father had provided to him, such as

“copies of a substance abuse evaluation, proof of [the father] attending drug

treatment, and the results of drug tests.” He asserts he was prejudiced as a

result, citing the following paragraphs from the court’s order terminating his

parental rights:

[The father] reports that he completed both a substance
abuse and mental health evaluation; however, he never provided
any proof of this to the Department of Human Services [(DHS)] as
indicated by the most recent permanency report to the court filed on
October 28, 2015 that was filed in the [child-in-need-of-assistance
(CINA)] cases. He provided no proof as to what recommendations,
if any, were made; therefore, the court cannot conclude he
complied with the case permanency plan in this regard. . . .
....
[The father], in his exhibits marked with numbers 16 and 17,
asserts that he has obtained additional drug screening on his own
in November of 2015 returning clean results. He argues that these
exhibits prove his sobriety in the last few weeks. The court,
however, takes particular note of the fact [that the father] was in
control of the timing of these drug screens and that these are not
random drug screens. Further undermining his assertion of
newfound abstinence from illegal drug use is his assertion that he
in fact took a third test and was unable to provide the results to the
court at the termination hearing. Finally, he reported obtaining a
substance abuse evaluation but never provided it. His assertion of
suddenly finding sobriety without treatment on the eve of the
termination hearing after refusing [twenty-five] other drug screens
and testing positive on October 20[, 2015], is contrary to the
evidence and is not accepted by the court.
....
Overall, the case permanency plan did not substantially
change concerning the recommendations for the parents. . . .
Nevertheless, had [the father] participated appropriately in the other
case permanency plan goals, in particular, drug screening and drug

2
Termination of the mother’s parental rights is not an issue in this appeal.
4

treatment, it is more likely than not that [the father] would be in a
better position to have his children returned to him either today or
within the next six months. Given the fact that he was engaged in
suspicious criminal activity in September 2015 with [the mother], he
assisted her in avoiding service of an arrest warrant in October
2015, and the fact that he tested positive for the presence of
methamphetamine in his body in late October 2015 all lead the
court to conclude that [the father] has, as the State asserts, made
no progress in attaining the case permanency goals. . . .
....
. . . Assertions that the father . . . complied with the mental
health and substance abuse evaluations remain unsupported by
any credible evidence. . . . Both parents have consistently avoided
drug screens over the course of the underlying [CINA] proceedings.
The father’s assertion of newfound sobriety is at best five and a half
weeks long and is scant in comparison to his avoidance of drug
screens and clear demonstration that he continues to use
methamphetamine as late as October 20, 2015. His drug screens
and assertions of additional drug screens showing that he has
abstained over the last five-and-a-half weeks from drug use are
largely of his own manufacture.

The father argues the court’s negative inferences contained therein resulted from

the failure of his trial counsel to provide to the court evidence of the father’s

completing a substance abuse evaluation, attending drug treatment, and clear

drug screens. The record belies the father’s allegations and in fact shows the

court was provided this evidence.

At the November 30, 2015 termination-of-parental-rights hearing, a DHS

case manager testified the father had completed an evaluation where he

admitted using methamphetamine and heroin. The DHS worker also testified the

father had “completed a substance abuse evaluation and treatment.” The father

testified that after the last drug screen he did for the DHS in October 2015, he

obtained three drug screens on his own. He stated they were “paid through

Genesis, which is . . . where I’m going for . . . mental health counseling and drug

counseling.” He gave the paperwork for two of the screens, dated November 23
5

and 27, 2015, to his attorney. These lab results, showing the father was clean

for all drug screens, were offered by the father’s counsel and admitted into

evidence as the father’s exhibits 16 and 17. The father testified he could not find

the report for the third drug screen, dated November 16, 2015, and he did not

provide it to his attorney. He testified that screen came back negative. He

testified that when he had his appointment with Genesis, he signed releases for

the DHS, but the DHS did not have copies of the lab reports. A DHS report for

the permanency-review hearing, dated October 28, 2015, states:

[The father] reports he received a substance abuse
evaluation from Genesis . . . . He report[ed the name of the person]
he worked with . . . . This worker has placed a phone call to
Genesis with no success in getting recommendations from
Genesis. Genesis has not returned any phone calls to this worker
in regards to [the father]. [The father] reports that he has signed
releases for this worker to gather information.
....
[The father] reports he has also completed a mental health
evaluation at Genesis. This worker has never received a phone
call back from Genesis in regards to this. [The father] reports he
has signed releases and that [the Genesis employee he worked
with] is on vacation[,] which is the reason he has not returned any
calls to this worker.

During his closing argument, the father’s trial counsel referenced all the above

evidence.

Upon our de novo review of the record, we find the evidence upon which

the father’s complaint is founded was actually admitted into evidence.

Consequently, the father has not met his burden to show his trial counsel was

ineffective. We therefore affirm the juvenile court’s order terminating his parental

rights.

AFFIRMED.