                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0146
                              Filed March 20, 2019


IN THE INTEREST OF E.K. and A.P.,
Minor Children,

H.P., Father,
       Appellant,

S.K., Mother,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for O’Brien County, David C. Larson,

District Associate Judge.



      A mother and father separately challenge the termination of their parental

rights. AFFIRMED ON BOTH APPEALS.



      Tobias A. Cosgrove, Sibley, for appellant father.

      Kevin J. Huyser, Orange City, for appellant mother.

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

Attorney General, for appellee State.

      Shannon Sandy of Sandy Law Firm, P.C., Spirit Lake, attorney and

guardian ad litem for minor children.



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

          A mother and father separately challenge the termination of their parental

rights.

I.        Background Facts and Proceedings

          The mother and father are the parents of E.K., born in 2009, and A.P., born

in 2013. The mother and father have been in an on-and-off-again relationship for

years. In 2014, the family was investigated by the Iowa Department of Human

Services (DHS), which resulted in founded child-abuse assessments against both

parents for denial of critical care. The assessment against the father was the result

of a domestic abuse incident in December 2013, during which the father choked

the mother while she was holding A.P. The father was charged with domestic

abuse and child endangerment. The assessment against the mother was the

result of her selling drugs out of the home in May 2014 while the children were

present. The children remained with the father after the assessment against the

mother because he was able to show he could care for the children at that time.

          The family again came to the attention of DHS in May 2017 upon reports

that the father was using methamphetamine while he was the children’s primary

caretaker. DHS also received reports that the father’s home was unsafe and the

children had been subjected to domestic violence between the parents. There

were also reports that E.K. had missed a significant amount of school and A.P.

had rotten teeth. When DHS made an unannounced visit at the father’s home, he

refused to allow entry and exhibited physical indicators of drug use, including being

very thin to the point his face was sunken, agitation, paranoia, and visible sores on

his body. The father also allowed the mother to spend time with the children
                                            3


despite his awareness of her drug use as he deemed “there [was] nothing wrong

with [the mother].” The father refused to cooperate any further, including refusing

to allow drug testing, and he wanted no further contact from DHS. DHS also

received police reports indicating the father was actively using and selling drugs in

addition to begging local drug dealers for methamphetamine.                Following an

investigation, DHS returned a founded child-abuse assessment against the father

for denial of critical care. The children were allowed to remain with the father

because, though the children were at high risk for harm, there was insufficient

evidence to support imminent danger.

       In June, the State petitioned for the children to be adjudicated in need of

assistance (CINA), and the court set the adjudication hearing for July. At the time

of the adjudication hearing, the mother was believed to be homeless and an active

methamphetamine user. After arriving for the hearing, the mother was arrested at

the courthouse on an outstanding warrant. The State and DHS also requested the

father complete drug testing, which he refused. After his refusal, the State sought

the children’s removal, which the court granted. The court transferred temporary

custody of the children to DHS for placement in foster care. The father filed a

notice of appeal and requested a stay pending a full removal hearing. 1 The court

consequently continued the adjudicatory hearing until September.

       Subsequent hair-stat testing of the children was negative for any illegal

substances, while the father’s drug test was positive for methamphetamine. The

paternal grandmother communicated to the children’s foster mother that A.P.


1
 The supreme court treated the father’s appeal as an application for interlocutory appeal,
which it denied.
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needed to be seen by a dentist because during one of the mother’s rages, she

attempted to punch the father but A.P. was caught in the middle and the mother

hit the child in the mouth. The children also reported to the foster mother that they

witnessed domestic violence between the parents, including an incident in which

the father punched and pinned the mother down. Further, E.K. reported to the

foster mother that there was no running water at the father’s home and that he

witnessed the paternal grandmother shoving a towel down a cousin’s throat as

discipline during a time the father left E.K. with the grandmother to babysit.

         The father was arrested twice in late July for driving while under suspension.

On one occasion, police found drug paraphernalia with residue on his person while

being searched at the jail. He claimed it was the mother’s. The father was

subsequently charged with possession of a controlled substance in a correctional

facility.

         After an evidentiary hearing, the court continued the children’s removal.

During a subsequent child advocacy interview, E.K. reported the mother’s

whereabouts were unknown and reported witnessing domestic violence between

the parents in addition to violence between the father and a friend. E.K. also

reported the father possessed a “real gun” and the father lied when he denied he

possessed such a gun. E.K. described finding a bullet on the father’s table once

and found a package of Suboxone2 in a box the father kept in his room. E.K. was

also aware of the mother’s drug use by walking in on her doing drugs on two

occasions over the past two years.



2
    Suboxone is a prescription narcotic.
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      In August, the parents were arrested together after police found them in a

South Dakota state park with methamphetamine. DHS subsequently returned

additional founded child-abuse assessments against both parents in August and

September. The court adjudicated the children CINA in September. The court

ordered the parents to complete substance-abuse and psychological evaluations

and submit to random drug testing.

      Home studies were conducted of the maternal grandparents, a paternal

grandmother, and a paternal aunt in late 2017.       The maternal grandparents

subsequently withdrew their request for a home study due to concerns over how

the children could impact their own mental health. They also believed the children

were in a stable foster home and they did not wish to disturb the arrangement.

DHS did not recommend the paternal grandmother for possible placement due to

her inability to keep healthy boundaries with the father and concerns about her

possible drug use. DHS recommended the paternal aunt as a possible placement

for the children. However, DHS did not continue pursuing her as a placement

option due to an allegation regarding the paternal aunt’s child. E.K. subsequently

reported to the foster family that he was inappropriately touched by a cousin and

was fearful of the cousin while at the paternal aunt’s home. Further, E.K. reported

witnessing drug use in the home. DHS investigated and determined there was

insufficient evidence to return a founded child-abuse assessment with respect to

these allegations.

      DHS provided the father with supervised visits until March 2018, when he

was arrested for domestic abuse assault after attacking and choking the mother.

Since March, the father has not had face-to-face contact with the children. At the
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time of the termination hearing, the father was in jail and had pending criminal

matters in another county and in South Dakota.

       Throughout most of the pendency of this case, the mother was incarcerated.

She has not seen the children since their removal in July 2017. DHS tried to

contact the mother numerous times to attempt to set up services, but the mother

failed to respond. When the mother was released from jail in January 2018, she

did request visitation at a meeting with DHS. After DHS explained the need for her

to comply and exhibit some consistency in her substance-abuse treatment before

starting visitation, the mother left the room. The mother was incarcerated again in

mid-April for approximately one month. After her release in mid-May, the mother

began making weekly telephone calls to the children. She also began taking steps

to address her substance-abuse issues, but she tested positive for marijuana in

July. At the time of the termination hearing, the mother also had pending criminal

matters in South Dakota.

       In July, the State petitioned to terminate both parents’ parental rights. In

January 2019, the court terminated both parents’ parental rights pursuant to Iowa

Code section 232.116(1)(e) and (f) (2018). Both parents separately appeal.

II.    Analysis

       We review termination-of-parental-rights proceedings de novo. In re A.S.,

906 N.W.2d 467, 472 (Iowa 2018). “We are not bound by the juvenile court’s

findings of fact, but we do give them weight, especially in assessing the credibility

of witnesses.” Id. (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa 2014)). “Our

primary concern is the best interests of the child.” In re J.E., 723 N.W.2d 793, 798

(Iowa 2006).
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       “[R]eview of termination of parental rights under Iowa Code chapter 232 is

a three-step analysis.” In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). We must

first determine if “any ground for termination under section 232.116(1) has been

established.” Id. If a “ground for termination has been established, then we

determine whether the best-interest framework as laid out in section 232.116(2)

supports the termination of parental rights.” Id. at 219–20. “Finally, if we do find

that the statutory best-interest framework supports the termination of parental

rights, we consider whether any exceptions in section 232.116(3) apply to preclude

termination of parental rights.” Id. at 220.

       A.     Father’s Appeal

       The court terminated the father’s parental rights pursuant to section

232.116(1)(e) and (f). “When the juvenile court terminates parental rights on more

than one statutory ground, we may affirm the juvenile court’s order on any ground

we find supported by the record.” In re A.B., 815 N.W.2d 764, 774 (Iowa 2012).

Termination pursuant to paragraph (f) requires the State to show:

              (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.

Iowa Code § 232.116(1)(f).       “At the present time” refers to the time of the

termination-of-parental-rights hearing. See A.M., 843 N.W.2d at 111.
                                          8


       Here, the father does not contest the establishment of the first three

elements. He seemingly challenges the establishment of the fourth. However,

during the termination hearing, when asked at the termination hearing, “are you

able to have the [children] in your care and custody today?” the father responded

“I am not.” Accordingly, we find the State proved the statutory grounds under

paragraph (f) by clear and convincing evidence.

       To the extent the father is challenging whether termination is in the

children’s best interest, 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].” Iowa Code § 232.116(2). When determining whether termination is in

a child’s best interests, “there is no all-encompassing best-interest standard.” In

re P.L., 778 N.W.2d 33, 40 (Iowa 2010). “Insight for the determination of the child’s

long-range best interests can be gleaned 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.’” A.B., 815 N.W.2d at 778 (quoting In re C.B.,

611 N.W.2d 489, 495 (Iowa 2000)).

       Throughout the pendency of this case, the father has struggled with

substance abuse and domestic violence. He consistently blamed the mother or

DHS for his inability to take steps toward addressing his issues. The father

expressed no concern with the possibility of placing the children with the paternal

aunt despite E.K.’s allegations of incidents in the paternal aunt’s home. While DHS

determined there was insufficient evidence to return a founded child-abuse

assessment with respect to these allegations, the father did not express any
                                          9


concern about why E.K. made these reports. There was also evidence that E.K.

has suffered psychologically given the trauma and neglect the parents’ actions

have placed upon the children. While the father argues that the children should

be placed with the maternal grandparents or a paternal sister, “[a]n appropriate

determination to terminate a parent-child relationship is not to be countermanded

by the ability and willingness of a family relative to take the child. The child’s best

interests always remain the first consideration.” In re C.K., 558 N.W.2d 170, 174

(Iowa 1997). Upon our de novo review, we find the children’s best interests are

served by the termination of the father’s parental rights.

       To the extent the father is arguing that a statutory exception to termination

applies, “[t]he court need not terminate the relationship between the parent and

child if . . . [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.” Iowa Code § 232.116(3)(c). The application of a statutory exception

to termination under section 232.116(3) is “permissive not mandatory.” M.W., 876

N.W.2d at 225 (quoting A.M., 843 N.W.2d at 113).              “[T]he parent resisting

termination bears the burden to establish an exception to termination.” A.S., 906

N.W.2d at 476. “[O]ur consideration must center on whether the child will be

disadvantaged by termination, and whether the disadvantage overcomes [the

parent]’s inability to provide for [the children]’s developing needs.” In re D.W., 791

N.W.2d 703, 709 (Iowa 2010). Upon our de novo review, we find that although

there is a bond between the father and the children, the record does not reflect

that the bond outweighs the children’s need for stability and permanency. We

decline to apply an exception to termination.
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       B.     Mother’s Appeal

       The court also terminated the mother’s rights pursuant to paragraphs (e)

and (f) of section 232.116(1).      Like the father, she does not contest the

establishment of the first three elements of paragraph (f). She argues the reasons

for the children’s removal—domestic violence, the parents’ drug use, and unsafe

home conditions—no longer exist. She contends that through her efforts, she has

addressed and rectified the underlying conditions and, as such, the children would

not suffer any harm if returned to her care.       Upon our review, we find that

throughout much of the pendency of this case the mother has been incarcerated.

During those times she was not incarcerated, she was transient and unemployed.

At the time of the termination hearing, the mother, while employed, was severely

underemployed so as not to be able to even support herself, let alone two children.

She admitted she was entirely dependent on her fiancé for financial support and

shelter. Additionally, even though the mother has taken steps toward addressing

her substance-abuse and mental-health issues, those steps occurred only within

the few months before the termination hearing, and conditions remain that

returning the children to her care could place them at risk. Prior to her release

from incarceration in May 2018, the mother avoided participation in services and

has not seen the children face-to-face since their removal in July 2017. Further,

at the termination hearing, the mother did not argue that she was able to resume

care of the children at the time, but instead requested additional time for

reunification or the children’s placement with either her parents or a paternal aunt.

On our de novo review, we find there is clear and convincing evidence that the

children could not be returned to the mother at the time of the termination hearing.
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       We also find the children’s best interests are served by termination of the

mother’s parental rights. DHS has extended services to the mother since the

children’s removal, and she resisted those services until only the few months prior

to the termination hearing. “Time is a critical element. A parent cannot wait until

the eve of termination, after the statutory time periods for reunification have

expired, to begin to express an interest in parenting.” C.B., 611 N.W.2d at 495.

Further, like the father, she expressed no concern about E.K.’s report about

incidents in the paternal aunt’s home. The mother does not argue that a statutory

exception to termination applies; therefore, we do not need to address the step as

to her appeal. See P.L., 778 N.W.2d at 40.

       C.     Extension

       Finally, both parents request additional time to allow for reunification.

Section 232.104(2)(b) permits the juvenile court to continue the placement of a

child for an additional six months to allow for reunification if the court finds “the

need for removal . . . will no longer exist at the end of the additional six-month

period.” Upon our de novo review, we find the children were removed from the

parents’ care due to substance-abuse-related issues and neglect. Neither parent

has followed through with services ordered by the court as recommended, and

though the mother has taken steps to begin to address her substance-related

issues, this only happened in the few months prior to the termination hearing. The

children have been out of the home for over a year and have not seen either parent

face-to-face for months; in the mother’s case, it has been over a year. “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
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learn to be a parent and be able to provide a stable home for the child.” A.B., 815

N.W.2d at 777 (quoting P.L., 778 N.W.2d at 41). “[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). We decline to delay the children’s

permanency any longer. We therefore affirm the termination of both parents’

parental rights.

       AFFIRMED ON BOTH APPEALS.
