                      IN THE COURT OF APPEALS OF IOWA

                                     No. 18-0386
                                  Filed May 2, 2018


IN THE INTEREST OF X.L.,
Minor Child,

D.L., Father,
       Appellant.
________________________________________________________________


         Appeal from the Iowa District Court for Cerro Gordo County, Gregg R.

Rosenbladt, Judge.



         A father appeals the order terminating his parental rights to his three-year-

old son. AFFIRMED.



         Jane M. Wright, Forest City, for appellant father.

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

General, for appellee.

         Crystal L. Ely of McGuire Law Firm, Mason City, guardian ad litem for minor

child.



         Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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TABOR, Judge.

       DeWayne appeals the juvenile court’s order terminating his parental rights

to three-year-old X.L. He contends the State did not present clear and convincing

evidence to support the grounds for termination. He argues it was not in X.L.’s

best interests to terminate his rights, and termination would be detrimental to X.L.

due to the closeness of their relationship.           DeWayne complains the Iowa

Department of Human Services (DHS) did not make reasonable efforts to reunify

him with X.L. He also argues he should have been given an additional six months

to work toward reunification.

       After our de novo review of the record,1 we conclude the circumstances

meet the statutory basis for termination under Iowa Code section 232.116(1)(h)

(2017), and termination was proper under sections 232.116(2) and (3). DeWayne

is not prepared, due to his unresolved substance-abuse issues, to assume custody

despite reasonable efforts made on his behalf. An additional six months would not

have remedied the situation. We affirm the juvenile court’s order.

I.     FACTS AND PRIOR PROCEEDINGS

       At birth, X.L. tested positive for tetrahydrocannabinol (THC), the active

component of marijuana, but continued to live with his older half-sister in the care

of their mother. When X.L. was just eight weeks old, the mother and DeWayne


1
  We review termination-of-parental-rights proceedings de novo, which means examining
both the facts and law and adjudicating anew those issues properly preserved and
presented. In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). 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. See In re M.W., 876 N.W.2d 212, 219 (Iowa 2016).
The State must offer clear and convincing proof, which means we see 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) (quoting In re C.B., 611 N.W.2d 489, 492
(Iowa 2000)).
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got into a physical fight, and the mother stabbed DeWayne, while X.L. was present.

The DHS temporarily removed the children but later returned them to the mother’s

care. When X.L. was nine months old, law enforcement officials received reports

the mother was physically abusing X.L.’s sister. The court approved removal of

the children, then placed them back with the mother. In the fall of 2016, DHS lost

contact with the family. They had become homeless, and the older child had not

been attending school. Upon relocating them late in 2016, the DHS removed the

children from the mother again and placed them in the foster home where they

have been living ever since.

      Around this time, DeWayne got in touch with DHS about seeing X.L. At the

next review hearing, DeWayne was present, and the court ordered DHS to begin

providing services to him. The court ordered DHS to investigate his home for

possible placement, set up drug testing, provide visitation, and assist with housing

and transportation. The court ordered DeWayne to obtain substance-abuse and

mental-health evaluations and follow through with any recommendation for

treatment.

      In early 2017, DeWayne’s substance-abuse counselor informed DHS

DeWayne was not engaging in services and admitted to substance abuse but was

not interested in quitting.    DeWayne refused to take drug tests and missed

appointments. He declined to provide his address so DHS could set up visitation.

In April, he pleaded guilty to misdemeanor possession of marijuana. In May, the

juvenile court terminated the mother’s parental rights.       But the court found

DeWayne was entitled to more time to participate in services because DHS had

focused its services on the mother and did not adequately respond to DeWayne’s
                                              4


requests. DeWayne had secured a job and housing, and DHS set up supervised

visits in his home.

          As the months passed, DeWayne failed to address his substance abuse or

respond to services. He was discharged unsuccessfully from a treatment program

for not participating.         Another substance-abuse evaluation recommended

extended outpatient treatment which he declined. He failed several drug screens,

testing positive for marijuana. DeWayne allowed his marijuana use to impact his

interactions with X.L. On one occasion, social workers came to his apartment for

visitation but had to cut the visit short due to the heavy smell of marijuana. A few

days later, DeWayne refused to let the family safety, risk, and permanency (FSRP)

worker into his apartment. The worker identified the distinct smell of marijuana

coming from inside.

          Visitation otherwise went well—DeWayne was generally prepared and

actively engaged in his interactions with X.L. But DeWayne routinely ended visits

ten minutes to one hour early, stating he did not know what to do with X.L. or he

had to go to work. He occasionally missed visits or FSRP meetings without

explanation or advanced warning.

          The State filed a petition to terminate parental rights, and the juvenile court

held a hearing on December 20, 2017. The court terminated DeWayne’s parental

rights under Iowa Code sections 232.116(1)(e) and (h). DeWayne appeals.2




2
    The mother does not participate in this appeal.
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II.       ANALYSIS

          A. Statutory Basis

          DeWayne argues the State did not present clear and convincing evidence

to support the grounds for terminating his parental rights. He claims the State did

not prove, under section 232.116(1)(e), that he failed to maintain significant and

meaningful contact with X.L. He also claims the State did not prove the grounds

under section 232.116(1)(h) because that section applies to children “three years

of age or younger,” and X.L. was three years and sixteen days old on the last day

of the termination hearing.3

          When the termination order rests on more than one paragraph of section

232.116(1), we may affirm on any ground supported by the record. In re K.R., 767

N.W.2d 321, 323 (Iowa Ct. App. 2007). Here, we find clear and convincing

evidence under subsection (h).

          Reviewing the record, on the last day of the termination hearing, X.L. was

past his third birthday. But we have previously concluded paragraph (h) applies to

children who are past their third birthday but have not yet reached their fourth

birthday:

          [B]y looking to another subsection of Section 232.116(1) we can
          easily determine that [subsection (h)] does [apply to children who are
          past their third birthday but who have not yet reached age four].

3
    Iowa Code section 232.116(1)(h) provides a ground for termination where
         [t]he court finds that all of the following have occurred:
             (1) The child is three years of age or younger.
             (2) The child has been adjudicated a child in need of assistance . . . .
             (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, 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 . . . at the present time.
                                          6


       Section 232.116(1)(f) relates to a child “four years of age or older.”
       If section 232.116(1)(h) did not apply to children between the ages
       of three and four, the statutory grounds for termination of parental
       rights under sections 232.116(1)(f) and (h) would apply to all
       identified children except those between ages three and four. We
       will not attribute such an illogical intent to the legislature. See Iowa
       Code § 4.4(3) (presuming that in enacting a statute a just and
       reasonable result is intended); Baldwin v. City of Waterloo, 372
       N.W.2d 486, 493 (Iowa 1985) (declining to interpret a statute in a
       manner that “would make no sense”).

In re N.N., 692 N.W.2d 51, 53–54 (Iowa Ct. App. 2004). DeWayne does not

challenge termination under paragraph (h) for any other reason. Therefore, we

conclude the termination is supported on this ground.

       B. Best Interests and Closeness of Relationship

       DeWayne next argues termination is not in the child’s best interests, and

would be detrimental to X.L. due to the closeness of their parent-child relationship.

See Iowa Code §§ 232.116(2), (3)(c). He asserts no evidence was presented that

his ability to provide for the child was affected by his mental condition.        See

id. § 232.116(2)(a). He also asserts there was no evidence X.L. has become

integrated into his foster family or has a preference for the foster family. See

id. § 232.116(2)(b)(2).

       The statutory best-interests provision requires us to give primary

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

term nurturing and growth, and to his physical, mental, and emotional condition

and needs. Id. § 232.116(2). We also must decide if any factors in section

232.116(3) weigh against termination. See In re P.L., 778 N.W.2d 33, 41 (Iowa

2010). Section 232.116(3)(c) allows the court to decline termination if “[t]here is
                                          7


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.”

       After our review of the record, we conclude X.L.’s best interests will be

advanced by terminating DeWayne’s parental rights.          DeWayne has failed to

adequately address his substance-abuse issues and is unable to support X.L.’s

mental and physical well-being.      DeWayne has not completed recommended

treatment and denies he has a substance-abuse problem. X.L. has never been in

DeWayne’s care, and DeWayne was not involved in X.L.’s life until he was

removed from his mother’s care for the third time.

       DeWayne contends the record did not show X.L. was integrated into his

foster family. But a letter from the foster parents dated October 2017 emphasizes

X.L. has lived with them for most of his life and considers them to be his “mommy

and daddy.” He is also deeply bonded with his half-sister. The foster parents have

provided both children a safe, stable home and hope to adopt them. It is in X.L.’s

best interests to terminate his parental relationship with DeWayne and seek a

stable and permanent home with the foster parents.

       The permissive factor identified in section 232.116(3)(c) does not tilt the

scales away from termination. See D.W., 791 N.W.2d at 709. The social worker

testified DeWayne and X.L. are building a relationship but do not yet have a bond.

Accordingly, we affirm the termination of DeWayne’s parental rights.

       C. Reasonable Efforts

       DeWayne also contends the DHS did not make reasonable efforts to allow

him to resume care of X.L. The DHS is required to make every reasonable effort

to return children home, consistent with their best interests.              Iowa Code
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§ 232.102(7); C.B., 611 N.W.2d at 493. But reasonable efforts are not a “strict

substantive requirement of termination.” C.B., 611 N.W.2d at 493.

       DeWayne has been offered numerous services during the child-in-need-of-

assistance case but has not used them effectively to achieve reunification.

DeWayne has received FSRP services, supervised visitation, parenting classes,

drug testing, substance-abuse evaluations and treatment, and transportation

assistance, among other services. But he declined or did not fully participate in

substance-abuse treatment, repeatedly tested positive for marijuana, missed visits

and FSRP meetings, and routinely ended visits early.                 DHS’s efforts were

reasonable.

       D. Additional Time

       DeWayne requests an additional six months to work toward reunification.

We may extend placement if we determine there will no longer be a reason for

removal in six months. Iowa Code § 232.104(2). But DeWayne did not request

any additional time at the termination hearing, so this claim is not preserved for our

review.4 But, even if we assume he preserved error, “[t]he best indication of a

parent’s future performance is past performance.” In re S.N., 500 N.W.2d 32, 34

(Iowa 1993). Given his refusal to acknowledge his substance-abuse problem,

DeWayne has not shown he would be able to resume care of X.L. if given an

additional six months.

       AFFIRMED.




4
 “It is a fundamental doctrine of appellate review that issues must ordinarily be both raised
and decided by the district court before we will decide them on appeal.” Meier v. Senecaut,
641 N.W.2d 532, 537 (Iowa 2002).
