                       IN THE COURT OF APPEALS OF IOWA

                                      No. 18-0202
                                   Filed May 2, 2018


IN THE INTEREST OF T.K. and D.K.,
Minor Children,

S.D., Mother,
       Appellant,

J.K., Father,
       Appellant.
________________________________________________________________

          Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,

District Associate Judge.



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

rights to their children. AFFIRMED ON BOTH APPEALS.



          Elizabeth A. Ryan of Benzoni Law Office, P.L.C., Des Moines, for appellant

mother.

          Jeremy L. Merrill of Lubinus Law Firm, P.L.L.C., Des Moines, for appellant

father.

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

General, for appellee State.

          ConGarry D. Williams of Juvenile Public Defender, Des Moines, guardian

ad litem for minor children.



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

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

rights to their children pursuant to Iowa Code section 232.116(1)(f) and (l) (2017).

Both parents challenge the grounds for termination, contend termination is not in

the children’s best interests, and assert exceptions apply to preclude the need for

termination. Because the parents have not taken significant steps to reengage in

substance-abuse treatment or to address the domestic-violence concerns in their

relationship, we affirm the termination of their parental rights to their children.

I. Background Facts & Proceedings.

       The parents have two children: T.K., age 11, and D.K., age five. The

department of human services (DHS) became involved with this family due to

concerns regarding domestic violence and marijuana use by the parents. The

children were removed on November 4, 2016, after the parents both tested positive

for methamphetamine. The children were placed in the temporary legal custody

of their maternal grandmother under DHS supervision.

       Following the removal of the children from their care, the parents

participated in substance-abuse treatment and both achieved and maintained

sobriety for approximately seven months. A transition plan was put into place

anticipating return of the children to the parents’ care in May of 2017. However,

near the same time the children were being placed back into the parents’ full-time

care, the mother tested positive for marijuana. DHS reverted the parents back to

semi-supervised visits.

       After the children were not returned to their full-time care as planned, the

mother and father both struggled with relapse. At the time of the termination
                                          3


hearing   on   January    18,   2018,    the   mother    reported   she    had     used

methamphetamine within the past week, and the father stated he was actively

using methamphetamine “[w]hen it [was] available.”               Both parents were

unemployed and still living together despite the acknowledged domestic-violence

concerns present when they are using illegal substances. The mother stated that,

following her relapse, she had attempted at least twice to begin inpatient

substance-abuse-treatment programs, only to leave after about an hour each time.

The mother stated she was now on a wait list for a different program. The mother

also acknowledged she had not been consistent with her mental-health treatment.

The father stated he had a bed at an inpatient substance-abuse treatment program

lined up for the following day but had not yet taken steps to address his continuing

substance-abuse issues.

       The court determined termination of the parents’ parental rights was

appropriate under section 232.116(1)(f) and (l). With respect to subsection (f), the

court held,

       [N]either parent is in any better position to have the children in her or
       his care today than when the children were first removed from their
       care. In many respects, the parents are in a worse position now than
       when the children were removed over [fourteen] months ago. Both
       are actively using methamphetamine. Neither has been in treatment
       for several months. Neither [is] addressing their ongoing episodes
       of domestic violence. [The mother] is not addressing her mental
       health.

The parents appeal.
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II. Standard of Review and Analysis.

       On our de novo review, In re M.W., 876 N.W.2d 212, 219 (Iowa 2016), we

agree there are grounds for termination pursuant to section 232.116(1)(f) and

termination is in the children’s best interests. Because we find there are grounds

for termination under section 232.116(1)(f), we need not address whether grounds

also exist under subsection (l). See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012)

(“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.”).

       A. Grounds for Termination.

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

rights where “[t]he child is four years of age or older,” “has been adjudicated a child

in need of assistance” (CINA), “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,”

and “[t]here is clear and convincing evidence that at the present time the child

cannot be returned to the custody of the child’s parents.” At the time of the

termination hearing T.K. and D.K. were both over the age of four and were

adjudicated CINA.

       The mother contends grounds have not been established under section

232.116(1)(f) because there was a trial period with the children at home lasting

greater than thirty days. At the termination hearing, the juvenile court asked the
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DHS caseworker to clarify how long and with what frequency the children had been

transitioned back to their parents’ care just before visitation was pulled back:

              THE COURT: Let’s clear something up for me. We talked
       about a re-removal back in late May or some time in that range; right?
              WITNESS: Yes.
              THE COURT: Okay. Really what we had was extended time
       with the parents, overnights, that type of thing; right?
              WITNESS: That’s correct.
              THE COURT: Okay. So, where exactly were we at when we
       had the—when we pulled back from that? How often had they been
       staying with or living with the parents for a week, two weeks, month?
              WITNESS: We had started with a transition plan in April where
       they would spend a weekend overnight there, transition to three
       days. At the time when we pulled back, they had just started to stay
       there for full time. So I believe they had stayed there that week three
       days.
              ....
              COUNSEL FOR THE MOTHER: But to follow-up on the
       judge’s question, . . . so they were staying at their parents’ home. At
       the conclusion of that week, was it the plan to return to the parents’
       care?
              WITNESS: Yes.

Thus, it is clear even if the children could have been considered returned to the

full-time care of the parents at all, such time would have been much less than the

requisite thirty-day period under section 232.116(1)(f)(3). We conclude it was

shown the children were removed from the parents’ care for the last twelve

consecutive months with no trial period exceeding thirty days.

       The father asserts there is not clear and convincing evidence the children

could not safely be returned to the parents’ care.        The father argues, “The

children’s needs were met by [the father] despite some intermittent drug use

throughout the children’s lives. While it is agreed that children should not be

witness to drug use or domestic abuse, these children’s physical needs were met.”

However, this argument ignores the danger to the children by being placed in a
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situation involving substance abuse and domestic violence by the parents. It also

ignores the lack of stability for the children.

       There may be no greater challenge than to parent a child, and we

acknowledge there is no perfect parent. We do expect, however, that a parent’s

efforts exceed a meager or sporadic level of cooperation with services and that

progress will be sufficiently sustained to evoke confidence.          Unfortunately,

sometimes a parent’s willingness and ability to cooperate and progress are

compromised by usage of drugs or alcohol, or both. Here, both parents have faced

difficulties in avoiding the use of drugs.

       The parents’ failure to maintain sobriety and to reengage in treatment after

relapse has resulted in detrimental effects on the children. Service providers and

the parents recognize T.K. is very angry with her parents and D.K. suffers a great

deal of sadness being separated from the parents. Neither child has been afforded

the comfort they deserve in knowing they will have a stable and safe environment

in which to grow. At the termination hearing, the mother acknowledged:

               I think that both my children feel abandoned. I think they feel
       like they don’t matter. I think they feel like they’ve been waiting on
       these promises that we’ve been making over the last year and that
       we didn’t follow through with, so they can’t trust us, you know. . . .
       [T]hey’re let down. They are disappointed.

It is clear the children cannot be safely returned to the parents’ care under the

current circumstances with neither parent having taken significant steps toward

maintaining sobriety and providing a safe environment for the children.



       B. Best Interests.
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       The detrimental impact on the children reveals why termination is also in

the children’s best interests.

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

       At the time of the termination hearing, the children had been primarily

placed with the grandmother since November 2016.1 The mother recognized that

in the grandmother’s care the children “have a good routine. They have stability.

They have a sense of normalcy. You know, they know what to expect. They know

nothing crazy is going to happen and turn their world upside down anytime soon.”

       We note, “Once the limitation period lapses, termination proceedings must

be viewed with a sense of urgency.” In re C.B., 611 N.W.2d 489, 495 (Iowa 2000).

“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.’”

Id. (citation omitted). The children have waited long enough for the parents to

address their ongoing substance-abuse and domestic-violence issues.                 The

children deserve permanency.

       C. Exceptions.




1
  The children were transferred to their aunt’s care from February to June 2017 while the
grandmother recovered from open-heart surgery. The aunt moved in to assist with the
children, allowing the children to remain in the grandmother’s home. The children were
returned to the grandmother’s care following her recovery.
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       We also acknowledge the parents contend the exceptions provided in

section 232.116(3)(a) and (c) apply to preclude the need for termination in this

matter.   “‘The factors weighing against termination in section 232.116(3) are

permissive, not mandatory,’ and the court may use its discretion, ‘based on the

unique circumstances of each case and the best interests of the child[ren], whether

to apply the factors in this section to save the parent-child relationship.’” In re A.M.,

843 N.W.2d 100, 113 (Iowa 2014) (citation omitted).

       Section 232.116(3)(a) states an exception to the need for termination of the

relationship between the parents and children exists where “[a] relative has legal

custody of the child.” We note here temporary legal custody was placed with the

grandmother under DHS supervision. However, at the termination hearing, the

grandmother expressed she wished to adopt the children. She explained, “I want

this to be over for the kids and myself so that we can go on and make a—a life;

and then when their parents decide that they want to be clean and healthy and

productive people, then they can be a part of their life.” Termination of the parents’

rights to the children and the subsequent adoption of the children by the

grandmother will avoid subsequent legal proceedings which could arise if the

children were placed in a guardianship—particularly if the parents were to achieve

another short period of sobriety and attempt to terminate the guardianship.

Although the children are placed in the custody of their grandmother, that

consideration does not outweigh the children’s need for permanency, and, thus,

the need for termination.

       Section 232.116(3)(c) provides “[t]he court need not terminate the

relationship between the parent and child if the court finds . . . [t]here is clear and
                                         9


convincing evidence that the termination would be detrimental to the child at the

time due to the closeness of the parent-child relationship.” We acknowledge the

strong bond between the children and parents in this case. However, throughout

these proceedings the children have been left disappointed and now lack trust in

the parents. Here, we do not find the parent-child bond outweighs the need for the

children to achieve permanency and stability.

III. Conclusion.

       We affirm the termination of the parents’ parental rights pursuant to section

232.116(1)(f), finding grounds for termination have been established, termination

is in the children’s best interests, and no exception applies to preclude the need

for termination.

       AFFIRMED ON BOTH APPEALS.
