In the Interest of D.H. and J.H., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 20-1440
Filed January 21, 2021

IN THE INTEREST OF D.H. and J.H., Minor Children,

J.W., Mother,
Appellant,

D.H., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor,

District Associate Judge.

A father and mother separately appeal the termination of their parental

rights. AFFIRMED ON BOTH APPEALS.

Victoria D. Noel of The Noel Law Firm, P.C., Clinton, for appellant mother.

Neill A. Kroeger, LeClaire, for appellant father.

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

Attorney General, for appellee State.

Marsha Arnold, Davenport, attorney and guardian ad litem for minor

children.

Considered by Mullins, P.J., and May and Schumacher, JJ. Tabor, J., takes

no part.
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SCHUMACHER, Judge.

A mother and father separately appeal the termination of their parental

rights to their two young sons, D.H., born in December 2014, and J.H., born in

September 2019. The father challenges the sufficiency of the evidence for

termination and further argues the bond between himself and the children should

preclude termination pursuant to Iowa Code section 232.116(3) (2020). The

mother also challenges the sufficiency of the evidence relied on by the district court

for termination of her parental rights. We address each argument in turn.

1. Background Facts and Proceedings

D.H. and J.H came to the attention of the Iowa Department of Human

Services (DHS) in July 2019 due to concerns regarding lack of supervision when

four-year-old D.H., who is non-verbal and developmentally delayed, was located

outside of his home unsupervised and unclothed. He was found in the same

situation several days later; the second incident occurring when the mother was

sleeping and under the influence of marijuana. D.H. was placed in foster care

pursuant to a voluntary placement agreement on July 31, 2019. The father, a

registered sex offender, was arrested for possession of methamphetamine. The

mother, who was pregnant, was admitted to a hospital for psychological concerns.

She later entered the Heart of Iowa for inpatient substance-abuse treatment, where

she gave birth to J.H. The mother did not successfully complete inpatient

treatment at Heart of Iowa and transferred to a halfway house as an alternate

placement. Her stay at the halfway house was terminated due to the mother’s

noncompliance with the rules of the facility. The mother was given the option of
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going to another placement with the new baby. She declined and signed a

voluntary placement agreement for J.H. to be placed in foster care with his brother.

D.H. was adjudicated to be a child in need of assistance (CINA) on

August 22, 2019. He was formally removed from parental custody the same day.

J.H. was adjudicated a CINA on April 23, 2020. He was formally removed from

parental custody on that date, although he had been placed in foster care with his

brother three months earlier when his parents signed a voluntary placement

agreement on January 22, 2020. While a permanency hearing was originally

scheduled for July 2020, it was continued to the date of the termination hearing,

October 28.

Prior to the combined permanency and termination hearing, both parents

continued to lose battles in their personal wars with controlled substances. The

mother provided a drug patch that was positive for methamphetamine on

August 27 following completion of level one outpatient treatment and unsuccessful

inpatient treatment attempts. The father had positive methamphetamine tests on

January 30, July 2, and October 1. He removed a patch at the end of August while

he was under the influence of alcohol after a verbal altercation with the mother.

He acknowledges he does not remember removing his patch due to his use of

alcohol. Proof of the father’s completion of substance-abuse treatment is absent

from the record. He acknowledges he has not re-engaged in treatment since his

most recent relapse.

The district court terminated the father’s parental rights to D.H. pursuant to

section 232.116(1)(e), (f), (k), and (l) (2020) and to his youngest son, J.H.,

pursuant to section 232.116(1)(e), (h), (k), and (l). The father challenges all four
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grounds relied upon by the district court with respect to D.H. When the juvenile

court orders termination of parental rights on more than one statutory ground, we

need only find grounds to terminate on one of the 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) in

relation to the father’s rights concerning D.H. As to one-year-old J.H., the father

challenges grounds in section 232.116(1)(e), (k), and (I), leaving section

232.116(1)(h) unchallenged. We may therefore affirm the termination based on

the unchallenged ground. See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999).

2. Analysis

We begin our analysis guided by defined case law and statutory guidance

concerning termination of parental rights. We do not “‘gamble with the children’s

future’” by asking them to continuously wait for a stable biological parent,

particularly at such tender ages. In re D.W., 385 N.W.2d 570, 578 (Iowa 1986)

(quoting In re Kester, 228 N.W.2d 107, 110 (Iowa 1975)); see also In re D.W., 791

N.W.2d 703, 707–08 (Iowa 2010); In re L.L., 459 N.W.2d 489, 495 (Iowa 1990)

(“Children simply cannot wait for responsible parenting. Parenting . . . must be

constant, responsible, and reliable.”).

Under section 232.116(1)(f), parental rights may be terminated if the court

finds all of the following have occurred:

(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least twelve of the last eighteen months, or
for the last twelve consecutive months and any trial period at home
has been less than thirty days.
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(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents
as provided in section 232.102.

The father does not challenge the first three elements. D.H. is four years of

age or older; he has been adjudicated pursuant to section 232.96; and D.H. has

been out of the physical custody of his parents for at least twelve of the last

eighteen months, or for the last twelve consecutive months, and any trial period at

home has been less than thirty days. D.H. has not been the subject of a trial home

period since his removal.

The father focuses his argument on the fourth element of section

232.116(1)(f). He argues at the time of the termination hearing, he was making

progress on case plan expectations.1 See Iowa Code § 232.116(1)(f)(4) (requiring

clear and convincing evidence that the child cannot be returned to parental custody

at the present time); D.W., 791 N.W.2d at 707 (interpreting the statutory language

“at the present time” to mean “at the time of the termination hearing”).

The district court found D.H. could not safely be returned to the custody of

his parents at the time of the termination hearing, noting the father was still testing

positive for the presence of illegal substances, he was not addressing his

substance-abuse issue, and the original adjudicatory harm continued to exist. The

father’s counsel acknowledged the children could not be returned to the father’s

custody on the day of the termination hearing in his closing argument, stating,

I think the testimony today shows that the parents have been making
progress, not sufficient at this time to return the kids to them today,
but they both seem to understand exactly what they need to do now

1The father does not argue on appeal that he should have been granted more time
pursuant to Iowa Code section 232.104(2)(b).
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and intend to do it. So we’re asking for more time and a continuance
so that they can fully accomplish everything . . . .

D.H. has been removed from parental custody for over a year, with little

progress on behalf of the father toward the issues that brought D.H. to the attention

of the court. We further note the record reflects the father has not attended

substance-abuse treatment since his recent relapse on methamphetamine. The

father’s visits with the children have never progressed beyond supervised. We

agree that D.H. could not be returned to his father’s custody at the time of the

termination hearing, finding clear and convincing evidence in the record for

termination under section 232.116(1)(f) as to D.H.

We next address the termination of the father’s parental rights as to J.H.

Under section 232.116(1)(h), the court may terminate the rights of a parent to a

child if: (1) the child is three years old or younger, (2) the child has been

adjudicated a CINA under section 232.96, (3) the child has been out of the parent’s

custody for at least six of the last twelve months or the last six consecutive months,

and (4) “[t]here is clear and convincing evidence that the child cannot be returned

to the custody of the child’s parents as provided in section 232.102 at the present

time.”

While the father does not challenge termination of his rights under section

232.116(1)(h), on our de novo review of the record, we find sufficient evidence to

support this statutory ground. J.H. is one year old. He was adjudicated to be a

CINA and had been out of his parents’ custody since adjudication, a consecutive

period of over six months. We find there is clear and convincing evidence J.H.
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could not be returned to his father’s custody at the time of the termination hearing

based on his father’s unaddressed substance-abuse issues.

The father also argues an exception to termination under section 232.116(3)

should be applied to avoid termination. Specifically, the father argues that the

bond between father and sons should preclude termination. He highlights the

relationship he has with D.H. However, as we have previously stated, “the factors

weighing against termination in section 232.116(3) are permissive, not

mandatory.” In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App. 2011). The court

may exercise its discretion in deciding whether to apply the factors in section

232.116(3) to save the parent-child relationship based on the unique

circumstances of each case and the best interests of the children. In re A.M., 843

N.W.2d 100, 113 (Iowa 2014).

We disagree with the father’s argument concerning the application of a

permissive exception. First, the statute requires “clear and convincing evidence

that termination would be detrimental to the child due to the closeness of the

parent-child relationship.” Iowa Code § 232.116(3)(c). Even if we were to assume

the father and the children have a close bond, which we question given that J.H.

has been out of parental custody the majority of his life and D.H. has been removed

from parental custody for over a year, such bond is not alone sufficient for purposes

of the permissive exception. This record is void of clear and convincing evidence

termination would be detrimental to either child. The evidence establishes the

converse. When D.H. was removed from parental custody, he was non-verbal.

He has special needs that must be addressed. While he is beginning to use some

words, he requires constant supervision and is unable to do basic tasks for a child
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of his age. J.H. is a very young child who is unable to self-protect. Secondly, while

we have no doubt the father loves both of his sons, love is not enough to trigger

this exception. See D.W., 791 N.W.2d at 709 (noting the consideration when

assessing the exception in section 232.116(3)(c) is not the parent’s love for the

child, but whether the child will be disadvantaged by termination). The

disadvantages of termination do not overcome the safety concerns that would

come with denying termination concerning D.H. and J.H.

We turn next to the mother’s arguments on appeal. The district court

terminated the mother’s parental rights to D.H. pursuant to section 232.116(1)(e),

(f), (k), and (l) and terminated the mother’s parental rights to her youngest son,

J.H., pursuant to section 232.116(1)(e), (h), (k), and (l). The mother challenges

sufficiency of the evidence under section 232.116(1)(d), (h), and (I).2 We may

affirm the termination based on the unchallenged grounds. See S.R., 600 N.W.2d

at 64. We, therefore, affirm the termination of the mother’s parental rights

concerning D.H. under section 232.116(1)(f), an unchallenged ground. We affirm

the termination of the mother’s parental rights as to J.H. under section

232.116(1)(h), finding the record contains clear and convincing evidence to

support termination under this ground challenged by the mother as to J.H.

Like the father, the mother challenges only the fourth element of section

232.116(1)(h), arguing that the child could be safely transitioned to her care. We

disagree. The mother failed to complete inpatient treatment. While she completed

level one outpatient treatment in July 2020, she had a positive drug screen for both

2The district court did not rely on section 232.116(1)(d) for termination for either
D.H. or J.H.
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marijuana and methamphetamine following outpatient treatment. The mother has

not consistently addressed her mental health. We agree with the district court that

J.H. could not be safely returned to the mother at the time of the termination

hearing given these unresolved issues.

3. Conclusion

Based on our de novo review of the record, we conclude termination of the

father’s parental rights was warranted under section 232.116(1)(f) as to D.H. and

under section 232.116(1)(h) as to J.H. We further agree that an exception to

termination under section 232.116(3) should not preclude termination between the

father and his sons under the facts of this case. We concur with the district court’s

conclusion termination of the mother’s parental rights was warranted under section

232.116(1)(f) as to D.H., and section 232.116(1)(h) as to J.H.

AFFIRMED ON BOTH APPEALS.