                    IN THE COURT OF APPEALS OF IOWA

                                      No. 18-0531
                               Filed September 12, 2018


IN THE INTEREST OF L.C. and K.C.,
Minor Children,

A.C., Father,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clay County, Charles K. Borth,

District Associate Judge.



      A father appeals from termination of his parental rights to two children.

AFFIRMED.



      Michael H. Johnson of Johnson Law Firm, Spirit Lake, for appellant father.

      Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney

General, for appellee State.

      Shawna L. Ditsworth of Ditsworth Law, Spirit Lake, guardian ad litem for

minor children.




      Considered by Danilson, C.J., Vogel, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
                                            2


BLANE, Senior Judge.

          A.C., father of L.C. and K.C., appeals the court’s order terminating his

parental rights to his two children. Upon our de novo review of the record, we

affirm.

          I. Standard of Review.

          This court reviews termination proceedings de novo. See In re A.M., 843

N.W.2d 100, 110 (Iowa 2014). When a juvenile court relies on multiple statutory

grounds to terminate a parent’s rights, we are at liberty to affirm its ruling on any

one of the supported grounds. See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012).

          Clear and convincing evidence is needed to establish the grounds for

termination. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). Where there is clear

and convincing evidence, there is no serious or substantial doubt about the

correctness of the conclusion drawn from the evidence. In re D.D., 653 N.W.2d

359, 361 (Iowa 2002). The paramount concern in termination proceedings is the

best interests of the child. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990).

          [T]he proper analysis under [Iowa Code chapter] 232 is first for the
          court to determine if a ground for termination exists under section
          232.116(1) [(2018)]. If a ground exists, the court may terminate a
          parent’s parental rights. Iowa Code § 232.116(1). In considering
          whether to terminate, “the court shall give primary consideration to
          the child’s safety, to the best placement for furthering the long-term
          nurturing and growth of the child, and to the physical, mental, and
          emotional condition and needs of the child.” Id. § 232.116(2). Any
          findings in this regard should be contained in the judge’s decision.
          Finally, before terminating a parent’s parental rights, the court must
          consider if any of the exceptions contained in section 232.116(3)
          allow the court not to terminate. Id. § 232.116(3).

In re P.L., 778 N.W.2d 33, 39 (Iowa 2010).
                                         3


       II. Facts and Procedural Background.

       On January 12, 2017, a child protective assessment was initiated by the

Iowa Department of Human Services (DHS) based on an allegation that the father,

A.C., and mother, H.B., got into a physical fight—A.C. kicked H.B. in the stomach—

in the presence of L.C., who was six months old at the time. It was also determined

that A.C. and H.B. were using marijuana while caring for L.C. L.C. was removed

and placed in the custody of his paternal grandmother. Following an uncontested

hearing on March 17, L.C. was adjudicated as a child in need of assistance (CINA),

under Iowa Code section 232.2(6)(b), (c)(2), and (n) (2017). The court ordered

L.C.’s custody to remain with his paternal grandmother. A CINA dispositional

hearing was held on April 7, and the court again ordered L.C. remain in the custody

of his paternal grandmother subject to protective supervision by DHS.

       H.B. gave birth to K.C. in June 2017. Upon the State’s application for ex

parte emergency removal filed June 12, the court placed K.C. in the custody of

DHS for placement in family foster care, which took place directly from the

hospital.1 The court was later advised that K.C.’s meconium test at birth was

positive for marijuana. Following an emergency removal hearing held on June 16,

the court ordered K.C. remain in the custody of DHS and continued placement in

family foster care.   Following an adjudicatory hearing on July 7, K.C. was

adjudicated as a CINA under section 232.2(6)(c)(2), (g), and (n). On August 18,

the court held a CINA review hearing in L.C.’s case and simultaneous CINA

dispositional hearing in K.C.’s case and again ordered that custody of these


1
 Because it was unknown at the time whether A.C. was the father of K.C., the paternal
grandmother, who had custody of L.C., did not want to also provide care for K.C.
                                         4


children remain as previously set. Timely CINA review hearings were held with

the children remaining in placement.

       On January 3, 2018, the State filed its petition to terminate parental rights

of A.C. and H.B. to L.C. and K.C. The petition as to A.C. alleged termination was

appropriate under Iowa Code section 232.116(1)(h) and (l) (2018). Both A.C. and

H.B were properly served with the petition. After a continuance, the termination

hearing was held on February 27. H.B. failed to attend the termination hearing,

but she was represented by counsel.2 A.C. attended the termination hearing and

was represented by counsel.

       At the time of the termination hearing, A.C. was 24 years old and H.B. was

21 years old.    They were never married and broke off their relationship in

September 2017. Both parents had a long and extensive history of drug use,

including marijuana and methamphetamine.          A.C. admitted he began using

marijuana at twelve or thirteen years of age and methamphetamine at eighteen.

Because of his drug use, A.C. has generated a criminal history. In 2011, he was

on probation for burglary, prompted by his drug use, and marijuana possession

offenses. His probation was revoked due to additional drug possession; he served

time in prison and was later released on parole. In 2016, he was again convicted

of possession of marijuana, with a sentence enhancement due to his prior

controlled-substance conviction. He was granted a suspended sentence and is

currently on probation. A condition of probation included drug treatment. Even

though he was on probation, he admittedly used methamphetamine on almost a


2
 At the time of the termination hearing, the whereabouts of H.B. were unknown and she
had not recently been in communication with her attorney.
                                          5


daily basis starting in 2015 and stopping after about one year—when L.C. was

born in 2016.

       In August 2017, A.C.’s substance-abuse treatment provider reported that

he had not been showing up for treatment. Attempts to obtain drug testing from

him were unsuccessful. In October 2017, A.C. tested positive for both marijuana

and methamphetamine.         He admitted the marijuana use but denied using

methamphetamine. He also admitted continual marijuana use while on probation

to help him sleep.

       On January 26, 2018, a month before the termination hearing, A.C. was

again arrested for possession of marijuana, third or subsequent offense. A report

of violation was filed, and his probation officer testified at the termination hearing

that she is requesting that his probation be continued but, as a condition, that A.C.

be required to reside at the residential treatment facility in Sioux City, which would

last for at least two months. Based on this arrest, the county attorney also filed an

application to revoke A.C.’s probation. The probation-revocation hearing was

pending at the time of the termination hearing; if revoked, A.C. could be required

to serve his prison sentence. The criminal charges from January 26, 2018, were

also still pending at the time of the termination hearing. According to the probation

officer, A.C. has not had a period of sobriety during his probation.

       A.C. also admitted he continuously used methamphetamine and marijuana

between January 26 and the morning of February 1, 2018, before entering drug

treatment later on February 1. He was residing at the treatment facility at the time

of the termination hearing, with discharge being imminent. This is A.C.’s fourth

inpatient substance-abuse treatment since he was fifteen; none with lasting
                                          6


success, although it appeared he would discharge from the program successfully.

A.C. testified this inpatient treatment was different as he has been prescribed a

drug, naltrexone, which he indicates has stopped his craving for drugs. He would

have to be on this drug for approximately one year and also continue other

outpatient treatment, including regular attendance at AA or NA meetings.

          L.C. is currently living with A.C.’s mother.   A.C. exercised supervised

visitation with L.C. on a daily basis until February 1, when he entered inpatient

drug treatment, with his mother providing the supervision. L.C. has not lived with

A.C. since his removal in January 2017. K.C. remains placed in foster care with a

family.     K.C. has not at any time resided with A.C., but A.C. has exercised

supervised visitation with him for three hours usually once a week. The court

ordered continued services to facilitate reunification between A.C. and both

children. A.C. testified he has established a bond with both children. However,

the social worker did not believe the bond between A.C. and the children was so

strong that it would be detrimental to them to terminate parental rights. A.C. was

employed during 2017 until his employer shut down the business at the end of the

year. A.C. has been receiving unemployment compensation since that time and

acknowledges this is not adequate to support him and the children. Due to his

possession convictions, A.C. does not currently have a valid driver’s license,

although he does qualify for a work permit.

          K.C.’s foster family expressed an interest in adopting him and stated they

would facilitate a continuing relationship between L.C. and K.C. A.C.’s mother has

indicated that she would be willing to adopt L.C., but she does not want to adopt

K.C., even though that would keep the siblings together. It is the recommendation
                                             7


of DHS that the parental rights be terminated because A.C. is not able to parent

these children on his own.

       On March 21, the court filed its order establishing permanency and

terminating A.C.’s and H.B.’s parental rights as to both children. A.C. filed a timely

notice of appeal.3

       IV. Discussion.

       A. Statutory Grounds for Termination.

       As noted, on our de novo review, we need find only one of the statutory

bases supported by clear and convincing evidence to affirm the district court’s

order of termination. A.B., 815 N.W.2d at 774. The district court determined that

termination of A.C.’s parental rights was proved by clear and convincing evidence

under both subsection 232.116(1)(h) and (l).           Since we first address section

232.116(1)(h) and find it is supported by clear and convincing evidence, it is not

necessary for us to address A.C.’s arguments regarding section 232.116(1)(l).4

       Iowa Code section 232.116(1)(h) requires the State prove the following by

clear and convincing evidence for the court to terminate parental rights:

              (1) The child is three years of age or younger.
              (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 six months of the last twelve months,

3
  H.B. has not appealed the termination of her parental rights.
4 A.C. challenges the finding required under subparagraph 2 of Iowa Code section
232.116(1)(l), that he “has a severe substance-related disorder and presents a danger to
self or others as evidenced by prior acts.” He contends that to make such a finding the
State was required to present evidence that he had a diagnosis of a severe substance-
related disorder under the diagnostic and statistical manual of psychiatric disorders of the
American Psychiatric Association, commonly referred to as DSM-5. He cites In re L.S.,
Nos. 14-1026, 14-1080, 2014 WL 5252948, at *5 (Iowa Ct. App. Oct. 15, 2014), in support.
Since we find termination was appropriate under section 232.116(1)(h), we do not need
to address this challenge.
                                         8


       or for the last six consecutive months and any trial period at home
       has been less than thirty days.
               (4) There 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.

The district court found as follows:

               There is clear and convincing evidence that [L.C.] and [K.C.]
       are both three years of age or younger and have been adjudicated
       as children in need of assistance pursuant to Iowa Code section
       232.96. Both children have been removed from the physical custody
       of their parents for at least six months of the last twelve months, or
       for the last six consecutive months. There is clear and convincing
       evidence that at the present time the children cannot be returned to
       the custody of their parents as provided in section 232.102, all within
       the scope and meaning of Iowa Code section 232.116(1)(h).

       A.C. concedes the State has proved the first three elements. He challenges

the fourth: whether L.C. and K.C. could be returned to his custody under section

232.102. The supreme court has interpreted this requirement as returning a child

to the parent at the time of the termination hearing; not some point in the future.

See Iowa Code § 232.116(1)(h)(4); In re D.W., 791 N.W.2d 703, 707 (Iowa 2010)

(“Section 232.116(1)(h) provides that termination may be ordered when there is

clear and convincing evidence that a child under the age of three who has been

adjudicated a CINA and removed from the parents’ care for at least the last six

consecutive months cannot be returned to the parents’ custody at the time of the

termination hearing.”); see also A.M., 843 N.W.2d at 111.

       We agree with the district court that L.C. and K.C. could not be returned to

A.C.’s custody at the time of the termination hearing.       He had not yet been

discharged from his inpatient drug treatment, which was to last four to six weeks.

He was facing a probation revocation, and his probation officer was

recommending, at a minimum, placement at a residential treatment facility for at
                                         9


least two months; the State was recommending a prison sentence. A.C. also still

had pending criminal charges of possession of controlled substances, as a third or

subsequent offense.5 Even more concerning than these matters—which he has

created by his actions and has little or no control over how they might resolve and

cloud A.C.’s immediate future—is his lengthy and uncontrolled substance abuse.

A court cannot deprive children of permanency, after the State has proved a

ground for termination of parental rights, by hoping someday a parent will learn to

be a parent and be able to provide a stable home for the children. A.M., 843

N.W.2d at 112. In considering “what the future likely holds for the child if returned

to his or her parents,” we gain insight from “evidence of the parent’s past

performance, for that performance may be indicative of the quality of the future

care that parent is capable of providing.” In re Dameron, 306 N.W.2d 743, 745

(Iowa 1981). As testified by the social worker, the State provided services and

gave A.C. a chance to prove he could parent, but he could not move forward due

to his continued substance abuse. His inability to maintain sobriety does not

indicate that he would have the ability to parent two children under the age of two

years on a full-time basis.

       B. Best Interests of Child.

       The court must next consider the children’s best interests as provided by

section 232.116(2), which requires the court to “give primary consideration to the

child[ren]’s safety, to the best placement for furthering the long-term nurturing and




5
 Under Iowa Code section 124.401(5), a third or subsequent possession of marijuana is
an aggravated misdemeanor and subjects A.C. to a potential prison sentence not to
exceed two years.
                                         10


growth of the child[ren], and to the physical, mental, and emotional condition and

needs of the child[ren].” Iowa Code § 232.116(2); P.L., 778 N.W.2d at 37.. The

juvenile court addressed this requirement and for the reasons set forth properly

determined termination is in the best interests of these children.

       A.C. had more than a year of services to rectify the concerns that led to

L.C.’s, and then K.C.’s, removals. He has continued to demonstrate that he has

not adequately addressed the substance-abuse concerns that caused the

children’s removals. Both children have done well in their respective placements.

The paternal grandmother has provided for L.C.’s needs since his placement with

her over a year ago and appears willing to continue in that role. K.C. has been

placed with the foster family since he was two days old. The family has developed

a bond and relationship with K.C., and he has integrated into that family. He is

with the only daily family unit he has ever known. The foster family has expressed

a desire to adopt K.C. if he becomes available for adoption. That family indicates

it would also work with the paternal grandmother to maintain a sibling relationship

between L.C. and K.C.

       A.C. has not demonstrated the ability to maintain sobriety long enough to

provide L.C. and K.C. a safe, long-term home environment that would further their

nurturing and growth while also addressing their physical, mental, and emotional

needs. A.C. expresses concerns that the children will be separated. The sibling

bond and the prospect that siblings will be adopted separately is a relevant factor

in considering their best interests. Wherever possible, siblings should be kept

together. See in re L.B.T., 318 N.W.2d 200, 202 (Iowa 1982). Here, due to the

conduct of the parents, the children have never lived together at any point in their
                                        11


lives. In addition, the foster parents and paternal grandmother have expressed a

commitment to maintaining contact between the siblings. And the paramount

concern is their best interests, which are best served by giving them permanent,

safe, and stable homes. See id. at 201.

      After our review, we agree with the juvenile court’s analysis.

      C. Exceptions to Termination—232.116(3).

      We also find there are no permissive considerations weighing against the

termination of the father’s parental rights. See Iowa Code § 232.116(3); In re R.M.,

No. 17-0174, 2017 WL 1278382, at *3 (Iowa Ct. App. Apr. 5, 2017). Under section

232.116(3) the court “need not terminate” parental rights if the court finds any of

five statutory conditions have been met. “A finding of any of these factors allows

the court to avoid terminating parental rights, but the factors ‘are permissive, not

mandatory.’” In re A.S., 906 N.W.2d 467, 475 (Iowa 2018) (quoting A.M., 843

N.W.2d at 113). The juvenile court considered this requirement and concluded

that application of none of these exceptions was warranted under the facts of this

case. It determined that the only exceptions arguably applicable to L.C. were

subsections 232.116(3)(a) and (c) and to K.C. subsection (c).

      Section 232.116(3)(a) can be applied when “[a] relative has legal custody

of the child.” L.C.’s paternal grandmother does have custody of him and has since

his removal in January 2017. But we agree with the juvenile court that for the

reasons discussed above, this exception should not be applied.            A.C. has

unresolved substance-abuse issues and the best interests of these young children

require permanency; we will not apply the exception to prevent termination.
                                           12


       Section 232.116(3)(c) can be applied when “[t]here is clear and convincing

evidence that the termination would be detrimental to the child at the time due to

the closeness of the parent-child relationship.” The record does not contain clear

and convincing evidence to support this exception. A.C. testified he had a bond

with L.C., and the juvenile court found a bond existed. A.C. also testified he was

developing a bond with K.C. But, given his ongoing substance-abuse issues and

the length of time the children have been out of his care—or in the case of K.C.,

that he has never been in his care—we conclude termination of A.C.’s parental

rights would not be detrimental to either L.C. or K.C.

       D. Additional Six Months and Guardianship

       A.C. contends the court should have granted him six additional months to

work toward reunification. During this six months, he believes K.C. should also be

placed in a guardianship so that at the end of six months, he would have both L.C.

and K.C. in his custody. “[A] guardianship is not a legally preferable alternative to

termination.” A.S., 906 N.W.2d at 477 (citing In re B.T., 894 N.W.2d 29, 32 (Iowa

Ct. App. 2017)). After a review of the record, we agree with the juvenile court that

a six-month delay is not in the best interest of the children.

       The court may continue placement of the child for an additional six months

if it finds “specific factors, conditions, or expected behavioral changes” that lead it

to conclude “the need for removal . . . will no longer exist at the end of the additional

six-month period.” Iowa Code § 232.104(2)(b). In this case, given A.C.’s long

history of drug use, failed drug treatment, and admitted continuous use of drugs,

there is no reason to believe the situation will be any different after six months. We

are not persuaded by his argument and testimony that his newly prescribed
                                            13


medication will help him succeed where three prior treatment attempts,

incarceration, and well over a year’s removal of his children failed to help him

achieve even day-to-day sobriety. Further, we do not ask children of a tender age

“to continuously wait for a stable biological parent.” D.W., 791 N.W.2d at 707.

       After our complete review, we also agree with the juvenile court’s conclusion

that a guardianship under Iowa Code section 232.104(2)(d) would not be

appropriate under the facts of this case.6 L.C. and K.C. deserve the permanency

that can only be accomplished by terminating their parents’ parental rights. Six

additional months would not change the outcome in this case when the same

concerns exist now as did when the children were removed from their parents’

custody. We agree placing either child with one or the other paternal grandparents

is not an appropriate permanency plan for the next six months to see if A.C. is then

capable of providing a home for these children.

       AFFIRMED.




6
  We address this issue raised by A.C. on appeal even though it was not squarely raised
in the termination hearing. There is testimony regarding the possibility of a guardianship,
but the father did not raise it, nor did the district court rule on such a request.
