                       IN THE COURT OF APPEALS OF IOWA

                                     No. 20-0587
                                 Filed August 5, 2020


IN THE INTEREST OF D.G. and G.G.,
Minor Children,

L.H., Mother,
       Appellant,

J.G., Father,
       Appellant.
________________________________________________________________


          Appeal from the Iowa District Court for Page County, Jennifer A. Benson,

District Associate Judge.



          A mother and father separately appeal the termination of their respective

parental rights to two of their children. AFFIRMED ON BOTH APPEALS.



          C. Kenneth Whitacre, Glenwood, for appellant mother.

          Justin R. Wyatt of Woods, Wyatt, & Tucker PLLC, Glenwood, for appellant

father.

          Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

          Vicki R. Danley, Sidney, attorney and guardian ad litem for minor children.



          Considered by Mullins, P.J., May, J., and Gamble, S.J.*

          *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
                                          2


GAMBLE, Senior Judge.

       A mother and father separately appeal the termination of their parental right

to their children, D.G. and G.G.1 Both parents challenges the statutory grounds

authorizing termination and whether termination is in the children’s best interests.

We affirm.

I. Facts and Prior Proceedings

       This is the second appeal involving this family. We set out the following

facts relating to the parents’ rights to the youngest two of their five children in our

first opinion:

       The department of human services [(DHS)] intervened in 2015,
       following the birth of the parents’ fourth child[, G.G]. The department
       instituted a safety plan based on concerns of drug use by the mother.
       [G.G.] stayed with relatives for approximately two months, then was
       formally removed from the parents’ care in a separate proceeding.
       He was ultimately reunited with his parents, and the district court
       closed the case.
               Less than one year later, the youngest child[, D.G.,] was born
       with marijuana in his system. The State filed a petition to have all
       five children adjudicated in need of assistance.
               On the date of the scheduled adjudicatory hearing, the
       department drug-tested the parents and found they had
       methamphetamine in their systems. The district court granted the
       adjudication petition and ordered the children removed from parental
       care. The department placed the older three children with their
       maternal grandmother. The youngest two children, who are the
       subject of this appeal, ended up with their maternal great-aunt.

1 We note the father is not listed on G.G.’s birth certificate, and he is not married
to the mother. See Iowa Code § 232.2(39) (2019) (defining parent). Both the
mother and father report that the father is G.G.’s biological father. No party takes
issue with the father participating or suggests he does not have established
parental rights to terminate. The juvenile court terminated the parental rights of
any unknown father to G.G. in an August 2018 termination order. In a prior appeal
involving this family, we addressed the father’s parental rights to G.G. noting he
personally acknowledged that he is G.G.’s biological father. See In re D.G., No.
18-1480, 2019 WL 1294228, at *2–3 (Iowa Ct. App. Mar. 20, 2019). Following this
reasoning, we again address the father’s rights to G.G. because he acknowledged
he is G.G.’s biological father.
                                         3


              The parents continued to test positive for methamphetamine
      and marijuana for several months, but, in time, their drug use
      declined. Beginning four months before the termination hearing,
      they tested negative for methamphetamine. Although the father
      tested positive for marijuana after that date, a hair test administered
      in the month preceding the termination hearing tested negative for
      all substances, and the father testified he stopped using marijuana.
      The mother equivocated on whether she curtailed use of the drug.
      But the department caseworker agreed the department typically
      does not remove children for marijuana use by the parents. Both
      parents attended substance-abuse counseling and participated in
      other services designed to address their substance abuse. They also
      participated in several weekly visits with their children.
              Ultimately, the State recommended against termination of
      parental rights to the older three children but petitioned to terminate
      parental rights to the youngest two children. Following a two-day
      termination hearing, the district court granted the termination petition
      pursuant to Iowa Code section 232.116(1)(e) and (h) [(2018)]
      (allowing the court to terminate parental rights where there is an
      absence of significant and meaningful contact or where the children
      cannot be returned to parental custody, respectively).

D.G., 2019 WL 1294228, at *1–2 (footnote omitted).

      Both parents appealed. The father challenged both statutory grounds relied

upon by the juvenile court, but the mother only challenged one ground. Id. at *2–

3. We found Iowa Code section 232.116(1)(h) satisfied as to the father and the

mother. Id. (finding the children could not return safely to the father’s care and

affirming the statutory grounds as to the mother based on the unchallenged ground

found by the juvenile court). But both parents argued termination was not in the

children’s best interests due to the familial bond. Id. We agreed, noting the

children’s strong bonds with their parents as well as their bonds with their older

three siblings. Id. We reversed the termination orders as to both parents. Id. at

*3.

      Following reversal of the first termination order in March 2019, the juvenile

court ordered reasonable efforts toward reunification to resume. On the way to the
                                        4


first visit following the court’s order, G.G. began to vomit. The parents agreed to

cancel the visit due to G.G.’s vomiting. The day of the next scheduled visit, G.G.

had a nightmare at daycare. Care providers observed him “whimpering and yelling

that he did not want to go back.” When care providers woke G.G., they discovered

that he had soiled himself. The guardian ad litem and a DHS worker agreed G.G.

should not attend visitation with the parents that evening. However, D.G. attended

the visitation.

       A doctor examined G.G. and found G.G. “did not demonstrate any signs of

illness” to explain his vomiting and soiling. So DHS obtained a mental-health

evaluation for G.G. to determine if G.G. had mental-health needs that needed to

be addressed. G.G.’s therapist recommended visitations between both G.G. and

D.G. and the parents be fully supervised until the parents completed family therapy

with G.G.     However, the parents have not consistently participated in family

therapy, and visitations remain supervised.

       The mother claims she received an updated mental-health evaluation in

September 2019. However, because the mother did not sign a release for DHS to

communicate with the facility, DHS could not confirm the mother completed an

evaluation or received any recent treatment. Similarly, the father claims he had

engaged in mental-health services, but this could not be confirmed.

       Both parents also obtained updated substance-abuse evaluations.

However, they were both discharged from treatment due to lack of attendance.

       The parents expressed difficulty obtaining transportation to drug screens,

so DHS arranged for in-home drug testing. However, the mother tested positive

for THC twice and missed several drug screens since reasonable efforts resumed.
                                         5


The father also tested positive for THC. And the father failed to complete some of

the in-home drug testing provided, though we note some tests occurred while he

was at work.

      So the State once again petitioned for termination of the parents’ parental

rights in November 2019. And the juvenile court terminated the parents’ parental

rights to both children. Again, both parents appeal.

II. Scope and Standard of Review

      We review termination proceedings de novo. In re P.L., 778 N.W.2d 33, 40

(Iowa 2010). “We give weight to the factual determinations of the juvenile court

but we are not bound by them. Grounds for termination must be proven by clear

and convincing evidence.     Our primary concern is the best interests of the

child[ren].” In re J.E., 723 N.W.2d 793, 798 (Iowa 2006) (citations omitted).

      We use a three-step process to review the termination of a parent’s rights.

In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). First, we determine whether a

ground for termination under Iowa section 232.116(1) (2019) has been

established. See id. at 472–73. If a ground for termination has been established,

then we consider “whether the best-interest framework as laid out in section

232.116(2) supports the termination of parental rights.”      Id. at 473 (citation

omitted). Then we consider “whether any exceptions in section 232.116(3) apply

to preclude termination of parental rights.” Id. (quoting In re M.W., 876 N.W.2d

212, 220 (Iowa 2016)).
                                         6


III. Discussion

   A. Statutory Grounds

       Both parents challenge the statutory grounds authorizing termination. The

juvenile court authorized termination pursuant to Iowa Code section 232.116(1)(d),

(f), and (h). When, as here, the juvenile court terminates on multiple statutory

grounds, we may affirm on any ground we find supported by sufficient evidence.

See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). We will address paragraph (f)

as to G.G. and paragraph (h) as to D.G.          These paragraphs differ slightly.

Paragraph (f) authorizes termination of a parent’s parental rights when:

              (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.
              (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.

Paragraph (h) is nearly identical except it applies to a child who is “three years of

age or younger” and only requires the child be removed “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.” But the parents only challenge the fourth
                                         7


element under both paragraphs. 2 As we found on the parents’ first appeals, we

conclude the children cannot be safely returned to either parent.3

      Substance abuse remains a concern for us. Both parents tested positive

for THC following our first reversal and remand.

      This is concerning with respect to the father because he testified at the first

termination hearing that he stopped using marijuana and recent testing supported

that. See D.G., 2019 WL 1294228, at *1. But he resumed his drug use following

our reversal, testing positive for THC twice. And he missed some drug testing.

We presume those tests, at least the ones he did not miss because of his work

schedule, would have resulted in positive tests. See, e.g., In re L.B., No. 17-1439,

2017 WL 6027747, at *2 (Iowa Ct. App. Nov. 22, 2017); In re C.W., No. 14-1501,

2014 WL 5865351, at *2 (Iowa Ct. App. Nov. 13, 2014) (“She has missed several

drug screens, which are thus presumed ‘dirty,’ i.e., they would have been positive

for illegal substances.”). Given the father’s backslide into marijuana use and his

fairly recent history with methamphetamine, we are concerned he may resume

methamphetamine use as he did marijuana use. See In re R.O., No. 17-1408,

2017 WL 6517532, at *2 (Iowa Ct. App. Dec. 20, 2017) (describing periods of

methamphetamine sobriety of up to two-and-a-half years as “relatively short


2 The mother’s petition on appeal only challenges paragraphs (d) and (h). Her
petition does not challenge paragraph (f), which is applicable to G.G. But we note
the elements to paragraph (f) are largely similar to paragraph (h); and the only
element she challenges under paragraph (h) is substantively identical to the fourth
element of paragraph (f). So, if she would have challenged, or intended to
challenge, paragraph (f) under the fourth element, our analysis would be the same.
3 Both parents argue it is safe for the children to return home because the juvenile

court closed the child-in-need-of-assistance proceedings for their three oldest
children. But we review this case independently of those cases that are not before
this court.
                                        8

periods of sobriety”); see also In re J.P., No. 19-11633, 2020 WL 110425, at *2

(Iowa Ct. App. Jan. 9, 2020) (noting “[m]ethamphetamine is a scourge”). This

concern is compounded by the father’s lack of participation in and dismissal from

substance-abuse treatment.      See, e.g., In re D.W., No. 19-0438, 2019 WL

2145856, at *1 (Iowa Ct. App. May 15, 2019); In re K.S., No. 13-1420, 2014 WL

1234472, at *3 (Iowa Ct. App. Mar. 26, 2014) (considering the father’s lack of

substance-abuse treatment participation as a factor weighing in favor of

termination).

       And like with the father, we have concerns about the mother’s sobriety. She

admits to continued marijuana use as a means to address pain associated with

various medical conditions. Her testimony suggests she feels her drug use is

necessary to avoid use of prescription opiates. See In re A.M., No. 20-0116, 2020

WL 1881109, at *2 (Iowa Ct. App. Apr. 15, 2020) (considering a mother’s self-

medication with marijuana as a factor weighing in favor of determining her children

could not return to her care). And we presume her missed drug tests also would

have resulted in positive tests. See, e.g., L.B., 2017 WL 6027747, at *2; C.W.,

2014 WL 5865351, at *2.       The mother’s continued self-medication practices

coupled with her history of methamphetamine use and lack of substance-abuse

treatment leave us concerned about her future drug use.

       We also note the parents have not progressed past supervised visitation.

See In re C.N., No. 19-1961, 2020 WL 567283, at *1 (Iowa Ct. App. Feb. 5, 2020)

(recognizing visitations should progress and require less supervision before

reunification can occur). This is because the parents have not participated in the

recommended family therapy, which is also concerning. We understand that the
                                            9


parents faced certain obstacles to the therapy, those being transportation and the

father’s work schedule. But the parents had access to one vehicle, DHS provided

gas cards to the family, and the therapist offered to make herself available on

evenings and weekends in order to work around the father’s work schedule. In

short, others involved in this case made every attempt to facilitate the needed

family therapy, but the parents did not meaningfully participate.4

         For these reasons, we find the first step in our review reveals the State

established grounds for termination under section 232.116(1) as to both parents.

         B. Best Interests

         Next, we consider whether termination is in the children’s best interests. In

considering the best interests of children, we “give primary consideration to the

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

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

needs of the child[ren].” P.L., 778 N.W.2d at 40 (quoting Iowa Code § 232.116(2)).

“It is well-settled law that we cannot deprive [children] of permanency after the

State has proved a ground for termination under section 232.116(1) by hoping

someday a parent will learn to be a parent and be able to provide a stable home

for the child[ren].” Id. at 41.

         With respect to both parents, we conclude termination is in the children’s

best interests. The parents’ lack of participation in family therapy demonstrates,

intentionally or not, that the parents are not willing to put in the work to rebuild their

relationships with the children. The children are integrated into their family foster



4   The mother participated in one session in December 2019.
                                         10


placement and look to them to meet their physical and emotional needs. In fact,

they refer to their foster placements as “Mom” and “Dad.” And their foster parents

would like to adopt the children. See Iowa Code § 232.116(2)(b).

       C. Exceptions to Termination

       We complete our three-step analysis by considering if section 232.116(3)

should be applied to preclude termination. “[T]he parent resisting termination

bears the burden to establish an exception to termination” under section

232.116(3). A.S., 906 N.W.2d at 476. Even if the parent proves an exception, we

are not required to apply the exception. In re A.M., 843 N.W.2d 100, 113 (Iowa

2014). We exercise our discretion, “based on the unique circumstances of each

case and the best interests of the child[ren],” to determine whether the parent-child

relationships should be saved. Id. (citation omitted).

       Both parents contend the juvenile court should have applied section

232.116(3)(c) to forgo termination. Section 232.116(3)(c) permits the court to forgo

termination when “[t]here is clear and convincing evidence that the termination

would be detrimental to the child[ren] at the time due to the closeness of the parent-

child relationship[s].”   We recognize we previously applied the exception to

preclude termination with respect to this family. D.G., 2019 WL 1294228, at *3.

And in doing so we considered the children’s relationships not only with the parents

but their older siblings as well. Id. We provided the parents a second chance at

reunification, but the parent-child relationships have since diminished. The parents

place blame for this on the guardian ad litem and DHS, noting the lack of services

they received while the first appeal was pending. But we recognize once services

resumed, DHS arranged for services specifically intended to build and strengthen
                                        11


the familial bonds. However, those bonds are not what they once were, and we

cannot say they are now so strong to justify precluding termination. Therefore, we

decline to apply this permissive exception to either parent.

IV. Conclusion

       The juvenile court was correct in terminating both parents’ parental rights.

       AFFIRMED ON BOTH APPEALS.
