                    IN THE COURT OF APPEALS OF IOWA

                                      No. 18-0937
                               Filed September 12, 2018


IN THE INTEREST OF A.H. and I.H.,
Minor Children,

R.H., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Pottawattamie County, Craig M.

Dreismeier, District Associate Judge.



       A father appeals the termination of his parental rights to his minor children.

AFFIRMED.




       Jon J. Narmi, Council Bluffs, for appellant father.

       Thomas J. Miller, Attorney General, and John B. McCormally, Assistant

Attorney General, for appellee State.

       Roberta J. Megel of State Public Defender Office, Council Bluffs, guardian

ad litem for minor children.




       Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

       The children in interest were born in 2008 and 2010. The family was

previously involved with child protective services in another state during which the

children were removed from the parents’ care for roughly three and a half years.

The mother’s parental rights were ultimately terminated, and the case was closed

with the father having custody of the children and the mother being entitled to

visitation at the father’s discretion. The mother eventually moved back into the

family home with the father and children.

       The family came to the attention of the Iowa Department of Human Services

(DHS) in October 2016 upon information that the father was both using

methamphetamine in and selling the substance from the family home. The father

and mother submitted to urine drug screens and tested negative for drugs, but the

test results indicated the drugs tests were manipulated.        As a result, DHS

requested the parents to submit to hair testing. The parents declined, advising

DHS they would only submit to another urine test. The parents subsequently

agreed to take the hair tests. The parents failed to timely appear for their first

scheduled hair tests. When the parents ultimately appeared for later tests, the

mother tested positive for methamphetamine and amphetamines and the father

did not have a sufficient amount of hair on his head or body for the test to be

completed. As a result, DHS advised the parents the children would need to be

subjected to hair testing. The parents declined the request. The children were

removed from the parents’ care in October and adjudicated children in need of

assistance in December.
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       Later in December, the father was referred to submit to a urinalysis and

sweat-patch test.     The father tested negative for drugs on his urinalysis but

reporting from staff at the testing facility indicated the father manipulated the test.

The father subsequently reported to DHS that his sweat patch had become

damaged shortly after its application. He was directed to return the patch to the

testing center and obtain a new one. The father never returned the allegedly

damaged patch or obtained a new one.

       Following a substance-abuse evaluation in December, the father enrolled

in outpatient treatment services. In March 2017, the father tested positive for

methamphetamine.       In June, the father engaged inpatient services.           He was

discharged in July having substantially completed the program. Shortly thereafter,

the father enrolled in intensive outpatient treatment. He also submitted to drug

screens in late July and early August and tested negative for drugs. As a result of

these positive steps, DHS elevated the father’s visitation with the children from

fully supervised to semi-supervised.

       At a group-therapy session in early September, however, the father fell

asleep and was unresponsive to attempts to awaken him. Medical staff reported

the father exhibited signs of being under the influence of an intoxicating substance.

Later in September, the father was charged with domestic abuse assault. 1 The

father’s interactions with the children were returned to fully supervised, and DHS

subsequently recommended that a concurrent permanency plan of termination of




1
  This charge was subsequently dismissed as a result of the alleged victim’s unwillingness
to cooperate with the prosecution of the crime.
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parental rights be put in place as a potential alternative to reunification. The court

adopted the recommendation in its subsequent permanency order.

          The father was successfully discharged from inpatient treatment in

November, despite violating the program’s attendance policy.            The treatment

program reported there was nothing to indicate the father was using illegal drugs

at the time of his discharge. In December, the father was arrested on a charge of

fifth-degree theft.2      Later in December, the father admitted to relapsing on

methamphetamine. Thereafter, the father declined to reengage substance-abuse

treatment and submit to drug testing. As a result, in March 2018, the State

petitioned to terminate the father’s parental rights. In April, the father was living

with his paramour and her relatives, but he was asked to leave this residence

because the relatives suspected he was using drugs.

          It is undisputed that the father consistently attended visitations with the

children throughout the life of the case and generally acted appropriately during

those interactions, with some exceptions. However, the frequency and duration of

the visits began to wane in or about December 2017.                It is also generally

undisputed that the father has continued to use drugs, was largely unemployed

throughout the life of the case, and has been unable to maintain consistent suitable

housing. The father did not attend the termination hearing, and the DHS worker

reported his living arrangements were unknown.

          The juvenile court ultimately terminated the father’s parental rights pursuant

to Iowa Code section 232.116(1)(e), (f), and (l) (2018).



2
    The record indicates the father was convicted of this crime.
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       The father appeals. He contends: (1) the State failed to prove the statutory

grounds for termination by clear and convincing evidence, (2) termination is not in

the best interests of the children, and (3) the statutory exception contained in Iowa

Code section 232.116(3)(c) should be applied to preclude termination. Our review

is de novo. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018).

       As to the statutory grounds for termination, “we may affirm the juvenile

court’s termination order on any ground that we find supported by clear and

convincing evidence.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). Under

paragraph (f), the father appears to only challenge the State’s establishment of the

final element, that the children could not be returned to his care at the time of the

termination hearing. See Iowa Code § 232.116(1)(f)(4); 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 father simply argues there is clear and convincing

evidence that the children “can be returned to [his] care today.”

       The uncontested evidence presented showed that at the time of the

termination hearing in May 2018, the father had recently relapsed on

methamphetamine and then evaded treatment and drug tests for several months

thereafter, he was kicked out of the home he was residing in even more recently

because he was allegedly using illegal drugs, and he had a current and historical

inability to maintain consistent and suitable employment and housing. The father’s

progression beyond fully supervised visitation to semi-supervised visitation was

short-lived—only remaining in effect for one visitation—as a result of the father’s

conduct. We find the evidence clear and convincing that the children could not be
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returned to the father’s care at the time of the termination hearing. We affirm the

juvenile court’s finding of the same.

       Next, the father contends termination is not in the children’s best interests.

In determining whether termination is in the best interests of a child, we “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.” Iowa Code § 232.116(2). We fully

acknowledge that the father shares a bond with these children and that he has the

potential to be a caring and appropriate father, as has been demonstrated during

his visitations with the children. However, although the father has been able to

maintain short stints of supposed sobriety, the record makes clear he is unable to

refrain from the use of illegal substances on a long-lasting basis. The father is

unable to maintain employment and suitable housing. The father’s inability to

obtain and sustain sobriety, employment, or suitable housing has a direct and

negative impact on his ability to provide for these children’s safety; long-term

growth; and physical, mental, and emotional well-being. There is no change in

sight. “It is well-settled law that we cannot deprive a child 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.” In re A.B., 815 N.W.2d 764, 777 (Iowa 2012) (quoting In re P.L., 778

N.W.2d 33, 41 (Iowa 2010)). “[A]t some point, the rights and needs of the children

rise above the rights and needs of the parent.” In re C.S., 776 N.W.2d 297, 300

(Iowa Ct. App. 2009). These children have waited for permanency long enough.

Termination is in their best interests.
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          Finally, the father argues the statutory exception contained in Iowa Code

section 232.116(3)(c) should be applied to preclude termination. “The court need

not terminate the relationship between the parent and child if . . . there 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.”              Iowa Code

§ 232.116(3)(c).     The application of the statutory exceptions to termination is

“permissive not mandatory.” In re M.W. 876 N.W.2d 212, 225 (Iowa 2016) (quoting

In re A.M., 843 N.W.2d 100, 113 (Iowa 2014)). “[T]he parent resisting termination

bears the burden to establish an exception to termination.” A.S., 906 N.W.2d at

476.

          The father presented no testimony or evidence at the termination hearing

that termination would be detrimental to these children due to the parent-child

bond. The State’s evidence does indicate the children share somewhat of a bond

with the father. Generally lacking in the record, however, is clear and convincing

evidence that at the time of the termination hearing “termination would be

detrimental to the child[ren] . . . due to the closeness of the parent-child

relationship.” Iowa Code § 232.116(3)(c). We conclude the father failed to meet

his burden to establish the statutory exception to termination. See A.S., 906

N.W.2d at 476. In the alternative, we conclude the application of the permissive

exception to termination would be contrary to the children’s best interests.

          Upon our de novo review, we affirm the termination of the father’s parental

rights.

          AFFIRMED.
