                    IN THE COURT OF APPEALS OF IOWA

                                     No. 17-1536
                               Filed December 6, 2017


IN THE INTEREST OF J.S., T.K., & C.K.,
Minor Children,

P.S., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Bremer County, Peter B. Newell,

District Associate Judge.



       The mother appeals the termination of her parental rights to her children,

C.K. and T.K., and the permanency order placing her child, J.S., in the sole

custody of his father. AFFIRMED.




       Mark A. Milder of Mark Milder Law Firm, Waverly, for appellant mother.

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

General, for appellee State.

       Linnea Nicol of the Juvenile Public Defender’s Office, Waterloo, for minor

children.




       Considered by Danilson, C.J., and Doyle and Mullins, JJ.
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DANILSON, Chief Judge.

       The mother appeals the termination of her parental rights to her children,

C.K. and T.K.,1 and the permanency order placing her child, J.S., in the sole

custody of his father.2 The mother asserts the district court erred in giving weight

to the mother’s hair-stat test results in reaching its determinations. The mother

also contends it is in C.K. and T.K.’s best interests to be returned to her care, or

in the alternative, to be placed in a guardianship. Because we conclude there

are grounds for termination of the mother’s parental rights to C.K. and T.K. and

for the placement of J.S. in the sole custody of his father, and the court’s

determinations are in the children’s best interests, we affirm.

I. Background Facts & Proceedings.

       At the time of the combined termination and permanency hearing, J.S.

was fourteen years old, C.K. was eight, and T.K. was seven.               The Iowa

Department of Human Services (DHS) became involved with the family in

September 2015 due to concerns of methamphetamine use by the mother. This

was not the first time the family had formal interactions with DHS due to

methamphetamine-related concerns.3         The children were removed from the

mother’s care in December 2015. C.K. and T.K. were placed in family foster

care, and J.S. was placed in the sole custody of his father.         The children’s




1
  C.K. and T.K.’s father’s parental rights were also terminated. He does not appeal.
2
  J.S. has a different father than C.K. and T.K.
3
   DHS became involved with the family in 2007, when J.S. tested positive for
methamphetamine, and again in 2009, when the father of C.K. and T.K. was arrested for
manufacturing methamphetamine.
                                           3


removal stemmed from the mother’s continued use of methamphetamine and the

mother’s and father to C.K. and T.K.’s continued ties to the drug culture.4

       Though the mother obtained substance-abuse and mental-health

treatment, consistently attended visitation with the children, and participated in

DHS services throughout the pendency of this matter,5 she was not able to

demonstrate honesty about her use of methamphetamine or provide negative

hair-stat tests. The mother tested positive for methamphetamine by hair-stat

testing on August 5 and September 2, 2016, and January 18, February 22, April

9, June 22, July 3, and August 23, 2017. The last positive hair-stat test was on

the second day of the termination and permanency hearing—the district court left

the record open for admission of the test results. The mother contended her last

use was September 2016; however, a DHS caseworker testified hair-stat testing

can only provide positive results if a person has used within the last ninety days.

       When asked at the termination and permanency hearing, the DHS

caseworker explained the meaning of the string of hair-stat test results showing

methamphetamine in the mother’s system:

              It meant that from each one of those dates there was a use
       and what they tell us, train us, what they say, is that for it to show
       up in a hair-stat there had to be three uses in that 90-day time
       period. We’re not going to catch one use, so what that would tell
       me is that well, we have consistently had use from January through
       June.


4
  At one point during the pendency of this matter there was concern for C.K. and T.K.’s
safety due to their father’s involvement and self-admitted prominent position in the drug
culture, requiring C.K. and T.K. to be placed in a sequestered foster home.
5
  The mother also obtained employment about three months prior to the termination and
permanency hearing. The mother had not been employed for approximately two years.
She was terminated from her last job as a nurse in 2015 after she was charged with
crimes related to taking medication from the care center.
                                         4


      The mother argued the hair-stat tests could be coming back positive due

to exposure from her environment rather than actual methamphetamine use.

The mother pointed out that her urinalysis tests through her substance-abuse

treatment at Pathways and those submitted as a part of the mother’s probation

were negative for illegal substances.        The mother submitted twenty-nine

urinalysis tests through Pathways and three as a condition of her probation—all

negative for illegal substances.     However, the DHS caseworker testified the

urinalysis tests were submitted in correlation with her scheduled Pathways

appointments and two out of three of the tests submitted as part of the mother’s

probation were scheduled, meaning “of the [thirty-one] tests I talked about that

were conducted by Pathways or Corrections, one of those tests w[as] done

where [the mother] couldn’t have anticipated the probability of testing.” The DHS

caseworker further testified the window for picking up methamphetamine in a

person’s system by way of urinalysis is typically only forty-eight hours. The DHS

caseworker also testified Pathways does not typically send urinalysis tests to a

laboratory for further testing.    The mother’s Pathways treatment coordinator

testified all the urinalysis tests taken through Pathways are observed but

admitted “there’s probably always a way” to substitute urine even while being

observed. Ultimately, the district court determined:

      [T]he hair-stat testing is credible evidence of ongoing
      methamphetamine usage. The mother’s ability to avoid the
      detection of her methamphetamine usage while providing urine
      samples is evidence of duplicity and not abstinence. The urine
      tests that the mother took did not occur randomly. She submitted
      urine samples when she was scheduled to have appointments with
      her substance abuse counselor. These tests were not forwarded to
      a laboratory for further testing.
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       After a combined termination and permanency hearing held July 21 and

August 23, 2017, the court terminated the mother’s parental rights to C.K. and

T.K. pursuant to Iowa Code section 232.116(1)(f) and (l) (2017). The court also

ordered the sole custody of J.S. to be transferred to his father pursuant to section

232.104(2)(d)(2). The mother appeals.

II. Standard of Review.

       We review termination-of-parental rights and child-in-need-of-assistance

(CINA) proceedings de novo. In re A.M., 843 N.W.2d 100, 110 (Iowa 2014)

(termination); In re J.S., 846 N.W.2d 36, 40 (Iowa 2014) (CINA). “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.” A.M., 843 N.W.2d at 110. In

both cases, the best interests of the children is our primary concern. See In re

J.E., 723 N.W.2d 793, 798 (Iowa 2006); J.S., 846 N.W.2d at 40.

III. Analysis.

       1) Hair-Stat Testing. The mother first contends the court erred in giving

weight to the hair-stat tests showing positive results for methamphetamine in

determining termination of the mother’s rights to C.K. and T.K. and confirmation

of J.S. as a CINA was necessary. The mother asserts hair-stat testing is of

questionable reliability and should not have been relied upon by the court. The

mother argues the court should have given more weight to the negative urinalysis

tests completed through her substance-abuse treatment instead. However, the

mother cites no Iowa authority supporting the argument hair-stat testing is

unreliable and should not be utilized by courts. We therefore will not address this

issue. See Iowa R. App. P. 6.903(2)(g)(3).
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      2) Grounds for Termination—C.K. & T.K. The mother also challenges the

court’s finding grounds for termination of her parental rights to C.K. and T.K.

Section 232.116(1)(f) provides the court may order the termination of parental

rights where the child is four years of age or older; has been adjudicated a CINA;

has been out of the parent’s care for at least twelve months of the last eighteen

months, or for the last twelve consecutive months; and it is established by clear

and convincing evidence the child cannot be safely returned to the parent’s

custody at present. C.K. and T.K. were both over the age of four at the time of

the termination hearing and had been adjudicated CINA and out of the mother’s

care for nearly two years.

      The mother argues the State has failed to show the children could not be

returned to her care safely because the only factor supporting the children’s

continued removal was the string of positive hair-stat tests. The mother cites to

In re M.S., 889 N.W.2d 675, 682 (Iowa Ct. App. 2016), and asserts the State

failed to show a nexus between the mother’s alleged methamphetamine use and

safety concerns for the children. In M.S., this court found no adjudicatory harm

supporting termination of a father’s parental rights where the father provided

illegal substance tests positive for THC during the pendency of the CINA

proceeding because there were no additional safety concerns. 889 N.W.2d at

682-83.   We also note our supreme court has stated, “[W]e do not believe

general   statements   about   methamphetamine       addiction   are   enough   by

themselves to prove that a child is imminently likely to suffer physical harm under

section 232.2(6)(b).” J.S., 846 N.W.2d at 42. However, despite the mother’s

effort and participation in DHS services, the record in this case establishes that
                                          7


due to the mother’s long-standing methamphetamine addiction there exists

potential harm to the children if returned to her care.

       This is not the first time the family has been brought to the attention of

DHS due to the mother’s substance-abuse issues. The mother testified she has

been addicted to methamphetamine since 2006, and DHS was involved with the

family as early as 2007 due to J.S. testing positive for methamphetamine. The

mother has shown an inability to maintain sobriety.          The mother provided a

number of hair-stat tests positive for methamphetamine—the last on the very

same day as the second day of the termination and permanency hearing.

Despite the continued indication of use via hair-stat testing, the mother denied

using methamphetamine since September 2016.               This indicates the mother’s

inability to be honest about her use. A behavior-health-intervention specialist

who worked with the mother and the children testified dishonesty is a bar to

recovery in that it is usually a sign of relapse or a sign relapse will likely occur.

Throughout the pendency of these proceedings, the mother’s substance-abuse

issues resulted in criminal charges and caused the mother to be unemployed.

The mother only obtained employment again a few months prior to the

termination and permanency hearing. Although the mother has exhibited effort to

meet the requirements imposed by DHS, her inability to be fully honest about her

use of methamphetamine and to achieve sobriety cause significant instability that

makes it impossible for her to safely parent the children. There is clear and

convincing evidence C.K. and T.K. could not be safely returned to the mother’s

care at the time of the termination hearing. We agree with the district court that
                                           8


there are grounds supporting the termination of the mother’s parental rights to

C.K. and T.K. under section 232.116(1)(f).6

       3) Best Interests.    The mother maintains it is in C.K. and T.K.’s best

interests to be returned to her care. In determining whether termination is in the

children’s best interests, 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).

       C.K. and T.K. have been in a state of instability for nearly two years while

waiting for the mother to maintain sobriety and exhibit she can safely parent the

children.   They deserve permanency.           “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 provide a stable home for the child.” A.M., 843 N.W.2d at 112

(citation omitted). C.K. and T.K. are placed in family foster care with their aunt

and uncle who provide a safe and nurturing environment for the children and who

are willing to adopt them. Their best interests are served by terminating the

mother’s parental rights.

       Alternatively, the mother maintains it is in C.K. and T.K.’s best interests for

a guardianship to be created rather than terminate the mother’s parental rights.

The mother cites to In re B.T., 894 N.W.2d 29, 34 (Iowa Ct. App. 2017), in


6
  We need only find termination appropriate under one of the sections asserted to affirm.
In re J.B.L., 844 N.W.2d 703, 704 (Iowa Ct. App. 2014).
                                          9

support of this contention. In B.T., this court determined placing the child in a

guardianship with the grandmother was appropriate, stating, “This is not a case

where the child’s future placement will remain in limbo if the mother’s parental

rights are not terminated.” 894 N.W.2d at 34. There, we noted the mother had

“had successful years of sobriety” and the grandmother had always protected the

child. Id. The same is not true here.

         In any event, by requiring under section 232.104(4)(a) that the court find

termination would not be in the children’s best interests prior to entering a

guardianship, “[t]he legislature has categorically determined ‘the needs of a child

are promoted by termination of parental rights’ if the grounds for termination of

parental rights exist.” In re L.M.F., 490 N.W.2d 66, 68 (Iowa Ct. App. 1992)

(quoting In re M.W., 458 N.W.2d 847, 850 (Iowa 1990)). In this case, placing

C.K. and T.K. in a guardianship would not provide permanency. A guardianship

requires annual review by the court7 and would provide the mother repeated

opportunities to contest the court’s determination the children should not be

placed in her custody. This would leave the children in limbo—perhaps hoping

they will be returned to their mother’s care or hoping they will not—and is not in

C.K. and T.K.’s best interests. Termination of the mother’s parental rights and

adoption of the children by their aunt and uncle will provide protection for the

children and allow the children the sense of stability they deserve.

         4) Permanency Order—J.S. The mother also challenges the court’s order

placing J.S. in the sole custody of his father pursuant to Iowa Code section


7
    See Iowa Code § 232.104(8)(a).
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232.104(2)(d)(2). Section 232.104(2)(d)(2) provides after a permanency hearing,

the court shall enter an order, pursuant to the findings required by section

232.104(4), to “[t]ransfer sole custody of the child from one parent to another

parent.” Section 232.104(4) in turn requires:

       Prior to entering a permanency order . . . convincing evidence must
       exist showing that all of the following apply:
               a. A termination of the parent-child relationship would not be
       in the best interests of the child.
               b. Services were offered to the child’s family to correct the
       situation which led to the child’s removal from the home.
               c. The child cannot be returned to the child’s home.

       The mother asserts the record does not support the finding J.S. could not

be returned to the shared-care arrangement between her and J.S.’s father that

was in place prior to the commencement of these proceedings. As explained

above, the mother’s failure to acknowledge her continued use and to achieve and

maintain sobriety stands in the way of her ability to provide a safe environment in

which to parent her children. We agree with the district court’s determination that

placement of J.S. in the mother’s care would be contrary to J.S.’s welfare. We

affirm the court’s order placing J.S. in the sole custody of his father.

IV. Conclusion.

       We find the district court did not improperly consider the mother’s hair-stat

test results in reaching its determinations, there are grounds for termination of

the mother’s rights to C.K. and T.K., termination is in C.K. and T.K.’s best

interests, and no section 232.116(3) factor weighs against the need for

termination. We also find there are grounds for placement of J.S. in the sole

custody of his father pursuant to section 232.104(2)(d)(2). We therefore affirm.

       AFFIRMED.
