                    IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0708
                                 Filed July 16, 2014

IN THE INTEREST OF H.L.,
      Minor Child,

A.L., Father,
       Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

District Associate Judge.



       A father appeals the order terminating his parental rights. AFFIRMED.



       Jane M. White of Jane White Law Office, Des Moines, for appellant.

       Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney

General, John P. Sarcone, County Attorney, and Christina Gonzalez, Assistant

County Attorney, for appellee.

       Aaron H. Ginkens of Ginkens Law Firm, P.L.C., West Des Moines, for

mother.

       Karl Wolle of Juvenile Public Defender’s Office, Des Moines, attorney and

guardian ad litem for minor child.




       Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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MCDONALD, J.

       Alan appeals an order terminating the parental rights between him and his

daughter, H.L. The juvenile court terminated Alan’s parental rights pursuant to

Iowa Code section 232.116(1)(d) and (l) (2013) (providing for the termination of

parental rights in the case of physical abuse and neglect and in the case of

severe, chronic substance abuse that presents a danger to others). On appeal,

Alan contends the juvenile court should not have proceeded with termination of

his parental rights because the child is placed with a relative. See Iowa Code

§ 232.116(3)(a). He also argues he should have been granted an additional six

months to access services and work toward reunification.             See Iowa Code

§ 232.104(2)(b).

                                          I.

       H.L. was born in January 2013 to Kami, the mother, and Alan. The child

came to the attention of the Iowa Department of Human Services (hereinafter

“IDHS”) and the juvenile court at the time of birth because Kami was involved in a

pending child in need of assistance proceeding involving her older child. The

older child is not the biological child of Alan, and the older child’s status is not at

issue in this proceeding. The State filed a child in need of assistance proceeding

regarding H.L. in January 2013. The State alleged the mother had a history of

methamphetamine use and abuse and a history of mental health conditions

resulting in hospitalizations. The petition alleged Alan had ongoing substance

abuse problems and a significant history of criminal behavior, including domestic

violence, both of which created a risk to the child. Although the State filed a child
                                           3



in need of assistance proceeding regarding H.L., the child was not removed from

Kami because of Kami’s success in her substance abuse and mental health

treatment in the case involving her older child. Nonetheless, the juvenile court

adjudicated H.L. in need of assistance on March 11, 2013.

       At the time of the adjudication hearing and order, Kami was in residential

substance abuse treatment. From that time throughout the remainder of this

proceeding, Kami continued to progress in her treatment and continued to

participate successfully in recommended services.        Other than a brief period

following Kami’s successful discharge from the residential treatment facility while

transitioning housing, H.L. remained in the custody and care of Kami. At the time

of the adjudication hearing and order, Alan was living at a halfway house

following his release from prison.       Like Kami, Alan participated in services,

including outpatient substance abuse treatment, prior to the adjudication hearing

and for some period of time thereafter. Alan provided clean drug screens. He

exercised supervised visitation with H.L.      Alan’s visitations went well.   By all

accounts he was appropriate, loving, nurturing, and caring. At the termination

hearing, Kami and Kami’s mother testified that Alan, when sober, is a good

father. Because Kami and Alan were progressing with services, the permanency

plan called for reunification of the family.

       Prior to reunification occurring, things began to unravel for Alan.         In

approximately September 2013, Kami reported to IDHS that Alan had relapsed.

She also reported that she could no longer pursue a relationship with Alan. In

October 2013, Alan entered Kami’s home and assaulted her. The incident report
                                         4



shows that Alan pushed his way into Kami’s home, pulled her to the ground by

her hair, and then struck her in the head several times. Kami believed that Alan

was under the influence of methamphetamine at the time. He was charged with

domestic abuse assault enhanced. The IDHS case worker testified that Alan

simply stopped using services in approximately August 2013. She also testified

that Alan had only one visitation with H.L. between September 2013 and the time

of the termination hearing.

       The State filed its petition to terminate Alan’s parental rights in January

2014. The matter came on for trial on February 17, 2014. At the time of the

termination hearing, Alan was in the custody of the Polk County Sheriff on the

pending assault charge. He waived his presence at the termination trial. The

court ordered the termination of Alan’s parental rights pursuant to the above-cited

code provisions. The mother supported the termination of Alan’s parental rights

as did H.L.’s guardian ad litem. Alan timely filed this appeal.

                                         II.

       We review de novo proceedings terminating parental rights. See In re

H.S., 805 N.W.2d 737, 745 (Iowa 2011). We examine both the facts and law,

and we adjudicate anew those issues properly preserved and presented. See In

re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We give weight to the

findings of the juvenile court, especially concerning the credibility of witnesses,

but we are not bound by them. See id. at 480–81. While giving weight to the

findings of the juvenile court, our obligation to review termination proceedings de

novo means our review is not a rubber stamp of what has come before. We will
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thus uphold an order terminating parental rights only if there is clear and

convincing evidence of grounds for termination. See In re C.B., 611 N.W.2d 489,

492 (Iowa 2000). Evidence is “clear and convincing” when there are no “serious

or substantial doubts as to the correctness [of] conclusions of law drawn from the

evidence.” Id.

       Termination of parental rights under chapter 232 follows a three-step

analysis. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). First, the court must

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

established. See id. Second, if a ground for termination is established, the court

must apply the framework set out in section 232.116(2) to decide if proceeding

with termination is in the best interests of the child. See id. Third, if the statutory

best-interests framework supports termination of parental rights, the court must

consider if any statutory exceptions set forth in section 232.116(3) should serve

to preclude the termination of parental rights. See id.

                                          III.

       Alan contends the juvenile court should have denied the State’s petition

for termination of his parental rights or afforded him an additional six months’

services to work toward reunification of the child. Alan first relies upon Iowa

Code section 232.116(3)(a), which provides the court need not terminate the

parent-child relationship if a “relative has legal custody of the child.” Alan also

relies upon Iowa Code section 232.104(2)(b), which allows the juvenile court to

       [e]nter an order pursuant to section 232.102 to continue placement
       of the child for an additional six months at which time the court shall
       hold a hearing to consider modification of its permanency order. An
       order entered under this paragraph shall enumerate the specific
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       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.

       It should first be noted that the statutory provisions upon which Alan relies

do not grant him an automatic entitlement to relief. The exception set forth in

section 232.116(3)(a) is permissive and not mandatory. See In re C.K., 558

N.W.2d 170, 174 (Iowa 1997) (“An 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.”); In re D.S., 806 N.W.2d 458, 474–75 (Iowa

Ct. App. 2011) (stating this provision is permissive and not mandatory). Thus,

even where custody of the child is with a relative, the juvenile court may proceed

with termination of the parent-child relationship where there is clear and

convincing evidence establishing a ground for termination and termination is in

the best interest of the child. See C.K., 558 N.W.2d at 174 (“The child’s best

interests always remain the first consideration.”). The decision not to terminate

must be made based on the facts and circumstances of each case. Likewise,

being afforded additional time is not a matter of right. The plain language of

section 232.104(2)(b) provides that additional time shall not be granted unless

the juvenile court specifically finds the basis for the need for removal of the child

will no longer exist at the end of the six-month period.           See Iowa Code

§ 232.104(2)(b); In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005).

       On our de novo review, we agree with the juvenile court that further delay

will not resolve the harms warranting removal with respect to Alan and that

termination of the parent-child relationship between Alan and H.L. was in the best
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interest of the child. Alan has a long history of substance use and abuse, and we

see no reasonable likelihood of successful treatment and continued sobriety by

the end of the six-month period. He first consumed alcohol and marijuana at age

eleven. He started using methamphetamine and acid at age twelve. He started

using cocaine at age thirteen. He is now forty-four. While it is true that Alan

experienced success with services at the beginning of this case, he relapsed

shortly after completing outpatient treatment despite all the services afforded

him. The story of Alan’s life is substance use and abuse punctuated by brief

interludes of sobriety. What’s past is prologue. See In re J.E., 723 N.W.2d 793,

798 (Iowa 2006) (“When making this decision, we look to the parent’s past

performance because it may indicate the quality of care the parent is capable of

providing in the future.”); In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998)

(“When the issue is a parent’s drug addiction, we must consider the treatment

history of the parent to gauge the likelihood that the parent will be in a position to

parent the child in the foreseeable future.”); id. (“Where the parent has been

unable to rise above the addiction and experience sustained sobriety in a

noncustodial setting, and establish the essential support system to maintain

sobriety, there is little hope of success in parenting.”); In re R.D., No. 14-0252,

2014 WL 1714959 (Iowa Ct. App. Apr. 30, 2014) (affirming termination of

parental rights where mother sought more time pursuant to section 232.104(2)(b)

but relapsed during proceedings).

       Related to his substance use and abuse is a history of criminal conduct.

Alan has convictions spanning two decades for license violations, making false
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reports to law enforcement, forgery, operating while intoxicated, harassment,

possession of a controlled substance, domestic assault, domestic assault second

offense, violations of no contact orders, and criminal mischief. In particular, Alan

has a history of domestic violence against Kami. In addition to the assault giving

rise to the charges pending at the time of the termination hearing, Alan had been

previously convicted of domestic assault where Kami was the victim. Under the

facts and circumstances of this case, the fact that Kami has custody of H.L.

actually supports terminating Alan’s parental rights because his past conduct

shows he poses a risk to the safety and health of the mother and child. See In re

C.M.M., 690 N.W.2d 465 (Iowa Ct. App. 2004) (concluding that history of

domestic violence and alcohol abuse supported termination of father’s parental

rights); In re K.G. No. 14-0012, 2014 WL 1999179 (Iowa Ct. App. May 14, 2014)

(affirming termination of father’s rights where mother had custody but there was a

history of domestic violence and necessity of no-contact order); In re J.N., No.

13-1725, 2014 WL 72277 (Iowa Ct. App. Jan. 9, 2014) (affirming termination of

mother’s rights where father had custody but mother had been convicted of

domestic violence against the father and violated no-contact order). There is no

evidence that Alan will cease his criminal thinking and conduct if afforded an

additional six months. He already has had two decades.

      A final, global consideration also supports the termination of Alan’s

parental rights. The judge considering a six-month extension of time “should . . .

constantly bear in mind that, if the plan fails, all extended time must be

subtracted from an already shortened life for the children in a better home.” In re
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A.A.G., 708 N.W.2d 85, 92-93 (Iowa Ct. App. 2005). The IDHS case worker

testified that Alan was in a worse position at the time of the termination hearing

than he was at the beginning of this case because Alan failed to address his

substance abuse and criminal behavior and now faces criminal charges that

must be resolved. The child need not wait any longer for stability in her life. See

In re A.J., 553 N.W.2d 909, 915 (Iowa Ct. App. 1996) (concluding that lengthy

history of repeated relapses and repeated guarded prognosis for sobriety

supported termination of parental rights), overruled on other grounds by In re

P.L., 778 N.W.2d 33, 40 (Iowa 2010); In re J.L., 669 N.W.2d 263 (Iowa Ct. App.

2003) (concluding that relapse of parent despite offer of services supported

termination of parental rights).

                                        IV.

       For the foregoing reasons, the judgment of the juvenile court is affirmed.

       AFFIRMED.
