                    IN THE COURT OF APPEALS OF IOWA

                                    No. 19-0503
                                 Filed July 3, 2019


IN THE INTEREST OF K.M.,
Minor Child,

R.R., Mother,
       Appellant,

S.M., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Cedar County, Gary P. Strausser,

District Associate Judge.



       A mother and father separately appeal the termination of their parental

rights to their child. AFFIRMED ON BOTH APPEALS.



       Sara Strain Linder of Bray & Klockau, Iowa City, for appellant mother.

       Lisa Renee Jones of Norton, Baumann & Surls, PLLC, Lowden, for

appellant father.

       Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

       Don W. Schroeder of Schroeder Law Firm PLC, West Liberty, attorney and

guardian ad litem for minor child.



       Considered by Potterfield, P.J., and Doyle and May, JJ.
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MAY, Judge.

         The juvenile court terminated a mother and father’s parental rights to their

child, K.M.      On appeal, both parents contend the juvenile court erred (1) in

concluding the statutory requirements for termination were satisfied. Additionally,

the mother contends the juvenile court erred (2) in declining to provide her with an

additional six months to work toward reunification, (3) in finding termination is in

K.M.’s best interest, and (4) in terminating despite a strong parent-child bond and

K.M.’s placement with a relative. We affirm the juvenile court.

I. Background Facts and Proceedings

         K.M. was born in 2017. Prior to K.M.’s birth, the parents’ drug use led the

Iowa Department of Human Services (DHS) to become involved with respect to

their older children.1      The mother continued to use methamphetamine while

pregnant with K.M. The mother gave birth to K.M. three weeks early; as a result,

K.M. had to stay in the neonatal intensive care unit for one week. K.M.’s umbilical

cord blood tested positive for amphetamines and methamphetamine. The mother

also tested positive for amphetamines.

         The juvenile court issued an emergency order removing K.M. from both

parents’ care. The court then adjudicated K.M. as a child in need of assistance

and placed K.M. in the custody of a maternal aunt.

         DHS experienced difficulty in providing services to the parents.                 The

parents’ phones were shut off at one point, preventing communication with DHS.

And the parents failed to meet with the social worker tasked with compiling their



1
    K.M.’s mother has a child with another man. K.M.’s father has three other children.
                                           3


social history. Likewise, both parents often arrived late or failed to attend visitation,

though the mother attended more often than the father. During visitation, the

mother sometimes exhibited signs of stimulant crash, such as sleeping so soundly

that the care coordinator had to wake her up.

       Animosity also began to grow between the mother and her sister, K.M.’s

placement. The mother believed her sister intended to “steal[]” K.M. The mother’s

sister grew suspicious that the mother continued to abuse methamphetamine. She

also felt the mother had become belligerent toward her and did not respect her or

her husband. As a result, the sister ultimately refused to supervise any additional

visitation for the parents.

       Shortly after K.M.’s birth, the mother sought intensive outpatient substance-

abuse treatment, but she failed to attend individual appointments or group therapy.

This prompted the treatment facility to recommend the mother be reevaluated to

determine her treatment options. The mother showed signs of drug use at a

January 2018 meeting. She tested positive for methamphetamine in March 2018.

However, the mother began substance-abuse treatment that same month.

According to a July 2018 letter from her care provider, the mother continued to

progress in treatment up to that point in time.

       Meanwhile, the father also struggled with substance abuse, testing positive

for amphetamines and methamphetamine in December 2017. And he exhibited

signs of drug use at the January 2018 meeting. In February 2018, the father

completed a substance-abuse evaluation, which recommended extended out-

patient treatment. In March 2018, he again tested positive for methamphetamine.
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The father entered substance-abuse treatment in April 2018 but did not complete

the program.

       The juvenile court held a termination hearing in July 2018. The parents

arrived late without explanation. The juvenile court ordered both parents to submit

to drug testing, which was available in the courthouse. The mother’s results were

negative, but the father tested positive for methamphetamine and amphetamines.

       On March 14, 2019, the juvenile court terminated both the mother and

father’s parental rights to K.M. pursuant to Iowa Code section 232.116(1)(e), (h),

and (l) (2018). Both parents appealed. Our supreme court transferred the case to

this court.

II. Standard of Review

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

(Iowa 2010). “We examine both the facts and law, and we adjudicate anew those

issues properly preserved and presented.” In re C.S., No. 13-1796, 2014 WL

667883, at *1 (Iowa Ct. App. Feb. 19, 2014). “Although we are not bound by them,

we give weight to the trial court’s findings of fact, especially when considering

credibility of witnesses.” In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).

III. Analysis

       We generally use a three-step analysis to review the termination of a

parent’s rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). First, we must

determine whether a ground for termination under section 232.116(1) has been

established. Id. at 472–73. If a ground for termination has been established, we

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

232.116(2) supports the termination of parental rights.” Id. at 473. Finally, we
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must 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)).

       A. Grounds for Termination

       Our first step is to determine if a ground of termination under section

232.116(1) has been established. Id. at 472–73. “The State has the burden of

proving the grounds for termination by clear and convincing evidence.” In re

H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct. App. 1997). “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). We choose to address grounds for termination

under Iowa Code section 232.116(1)(h) with respect to both parents.

       Iowa Code section 232.116(1)(h) authorizes termination of a parent’s

parental rights when:

               (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,
       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.

Here, each parent challenges the fourth element. Each contends K.M. could have

been returned to their care at the time of the termination hearing.

       We agree with the juvenile court that K.M. could not be returned to the

father’s care.   The father was largely absent from visitations with K.M.       He
                                         6


continued to abuse methamphetamine. We commend the father for eventually

participating in substance-abuse treatment.       However, his positive drug test

administered the day of the termination hearing demonstrates K.M. could not

safely return to his care. See In re J.S., 846 N.W.2d 36, 42 (Iowa 2014) (“[A]

juvenile court could reasonably determine that a parent’s active addiction to

methamphetamine is ‘imminently likely’ to result in harmful effects to the physical,

mental, or social wellbeing of the children in the parent’s care.”); A.B., 815 N.W.2d

at 776 (noting “an unresolved, severe, and chronic drug addiction can render a

parent unfit to raise children”); In re B.S., No.19-0006, 2019 WL 1055686, at *1

(Iowa Ct. App. Mar. 6, 2019) (collecting cases concluding a child cannot be safely

returned to parent with unresolved substance-abuse issues).

        We also agree with the juvenile court that K.M. could not be returned to the

mother’s care either. During several visitations, the mother displayed signs of a

stimulant crash, indicating she recently used stimulants. On one occasion, she fell

asleep while holding K.M. She smacked K.M.’s head on a table when she awoke.

        While her drug screen during the termination hearing was negative, she had

a positive test a few months prior. We find her explanation that she used another

person’s urine to produce a false positive for that test to be unbelievable and

illogical.   The mother also evaded drug testing on several occasions, which

suggests she knew testing would produce a positive result. Cf. In re C.W., No. 14-

1501, 2014 WL 5865351, at *2 (Iowa Ct. App. Nov. 13, 2014) (noting missed drug

screenings are presumed positive).

        The mother also struggled to comply with basic tasks such as confirming

visitations by 8:30 a.m. the day of visitation. She explained she had difficulty
                                              7


waking up in time. It is difficult to imagine she would be able to adequately care

for K.M., an infant, when she is unable to wake up in the mornings to complete

basic tasks. Even more concerning, two weeks prior to the termination hearing,

the mother fell asleep while driving to a visitation with her other child. She only

woke up after driving over roadside rumble strips. She pulled over, slept on the

side of the road, and missed the scheduled visitation.

       Finally, given the father’s ongoing substance abuse, the mother’s continued

relationship with the father also indicates K.M. could not be safely returned to the

mother’s care. See In re M.M., No. 18-1028, 2018 WL 4361074, at *2 (Iowa Ct.

App. Sept. 12, 2018) (noting a parent’s ongoing relationship with an active

substance abuser weighed in favor of termination).

       In short, K.M could not have been returned to either parent’s care at the

time of the termination hearing. The first step of our analysis is satisfied.2




2
  Neither parent directly challenges the sufficiency the State’s reasonable efforts to support
reunification, which “impacts the burden of proving [the statutory] elements of termination,
which require reasonable efforts.” See C.B., 611 N.W.2d at 493 (“The State must show
reasonable efforts as part of its ultimate proof the child cannot be safely returned to the
care of a parent.”). However, both parents allude to such a challenge in their petitions on
appeal. Any such claims are not sufficiently developed for our review. See In re E.C., No.
14-0754, 2014 WL 3513336, at *2 (Iowa Ct. App. July 16, 2014). Further, any such claim
is waived because neither parent brought a request for additional services to the juvenile
court prior to the termination hearing. See In re C.H., 652 N.W.2d 144, 147 (Iowa 2002)
(“If, however, a parent is not satisfied with DHS’[s] response to a request for other services,
the parent must come to the court and present this challenge.”); In re A.A.G., 708 N.W.2d
85, 91 (Iowa Ct. App. 2005) (stating the parent has an obligation to demand other,
different, or additional services prior to the termination hearing or the issue is considered
waived for appeal).
                                          8


        B. Best-Interest Framework

        Our next step is to consider the best-interest framework set forth in section

232.116(2). A.S., 906 N.W.2d at 473. Section 232.116(2) provides in relevant

part:

               In considering whether to terminate the rights of a parent
        under this section, 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.

See Iowa Code § 232.116(2)(a), (b), (c) (identifying factors that may be relevant to

the court’s best-interest analysis).

        Here, the father does not contest the juvenile court’s conclusion termination

of his parental rights is in K.M.’s best interest. The mother, however, notes K.M.

recognizes her and that she has provided for K.M.’s needs. On these grounds, the

mother argues that termination is not in K.M.’s best interest.

        We disagree. K.M. has not lived with either parent. Neither parent has

provided care and support for K.M. for any meaningful period of time. Rather, K.M.

is bonded to her aunt’s family, who has cared for her since 2017. The aunt and

uncle are willing to adopt K.M. See id. § 232.116(2)(b). Both are working to

maintain a relationship between K.M. and a half-sibling. Cf. In re A.M.S., 419

N.W.2d 723, 734 (Iowa 1988) (noting siblings should be raised together when

possible). We conclude the second step of our analysis is satisfied.

        C. Exceptions

        Next, we consider section 232.116(3), which provides as follows:

               The court need not terminate the relationship between the
        parent and child if the court finds any of the following:
               (a) A relative has legal custody of the child.
                                           9


               (b) The child is over ten years of age and objects to the
       termination.
               (c) 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.
               (d) It is necessary to place the child in a hospital, facility, or
       institution for care and treatment and the continuation of the parent-
       child relationship is not preventing a permanent family placement for
       the child.
               (e) The absence of a parent is due to the parent’s admission
       or commitment to any institution, hospital, or health facility or due to
       active service in the state or federal armed forces.

       “[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. If

the parent proves an exception, this court may conclude termination is

inappropriate. Id. We are not, however, required to reach that conclusion. In re

A.M., 843 N.W.2d 100, 113 (Iowa 2014). Rather, we exercise our discretion,

“based on the unique circumstances of each case and the best interests of the

child,” to determine whether the parent-child relationship should be saved. Id.

(citation omitted).

       The father does not contend any exception to termination applies, but the

mother does. She contends the juvenile court did not need to terminate because

K.M. was in the custody of a relative pursuant to Iowa Code section 232.116(3)(a).

The State responds that the mother failed to preserve error because she failed to

assert this claim in the juvenile court. We agree with the State. See A.B., 815

N.W.2d at 773 (“[T]he general rule that appellate arguments must first be raised in

the trial court applies to . . . termination of parental rights cases.”). Moreover, even

if error was preserved, we find no compelling reason to apply the exception and
                                          10


forego termination in this instance. Rather, for reasons already explained, we

believe K.M.’s best interest requires termination.

       Still, the mother argues the strength of the parent-child bond should

preclude termination pursuant to section 232.116(3)(c). We disagree and find the

mother overstates her relationship with K.M. See In re D.W., 791 N.W.2d 703, 709

(Iowa 2010) (“[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 child]’s developing needs.”).

       D. Additional Time

       Finally, we consider the mother’s contention the juvenile court erred in

declining to provide an additional six months to work toward reunification. The

juvenile court may defer termination for a period of six months if it is able to

“enumerate the specific factors, conditions, or expected behavioral changes which

comprise the basis for the determination that the need for removal of the child from

the child’s home will no longer exist at the end of the additional six-month period.”

Iowa Code § 232.104(2)(b).

       Here, the mother argues the need for removal will be obviated in the near

future as she progresses through substance-abuse treatment and therapy. She

also points to her recent improvements in attending visitation and maintaining

stable housing.     Even so, the mother appears committed to continuing her

relationship with the father. His confirmed substance abuse presents a serious

risk of harm to K.M. Moreover, the mother’s “past performance is indicative of the

quality of care [s]he is capable of providing in the future.” In re N.A.S., No. 13-

0074, 2013 WL 988895, at *2 (Iowa Ct. App. Mar. 13, 2013); accord In re C.W.,
                                        11


554 N.W.2d 279, 283 (Iowa Ct. App. 1996). Her history reveals deficiencies she

is unlikely to resolve in the near future. The juvenile court reasonably concluded

it could not rely on the mother to turn over a new leaf within the next six months.

IV. Conclusion

       For the reasons stated, we conclude the juvenile court properly terminated

both parents’ parental rights.

       AFFIRMED ON BOTH APPEALS.
