                       IN THE COURT OF APPEALS OF IOWA

                                      No. 17-1272
                                Filed October 11, 2017

IN THE INTEREST OF K.J., T.J., L.J., and I.J.,
Minor Children,

L.J., Father,
       Appellant,

N.D., Mother,
       Appellant.
________________________________________________________________

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

District Associate Judge.



          A mother and father separately appeal the termination of their parental

rights to their four children. AFFIRMED ON BOTH APPEALS.



          Eric W. Manning of Manning Law Office, P.L.L.C., Urbandale, for appellant

father.

          William E. Sales III of Sales Law Firm, P.C., Des Moines, for appellant

mother.

          Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

          Cole Joseph Mayer of Mayer Law, PLLC, Des Moines, guardian ad litem

for minor children.

          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, Presiding Judge.

       The mother and father of four children separately appeal the termination of

their parental rights. Both parents assert the State failed to prove by clear and

convincing evidence the statutory grounds for termination, primarily that the

children could not be returned to the parents at the present time. The mother

also asserts termination is not in the children’s best interests and that the record

should have been reopened to include additional post-hearing information. The

father asserts he should have been given additional time to work towards

reunification and that he has a bond with the children, which should preclude

termination.1 On our de novo review, and agreeing with the district court’s fact

finding and conclusions on all issues raised, we affirm.2 In re M.W., 876 N.W.2d

212, 219 (Iowa 2016) (noting our de novo standard of review).

       I. Background Facts and Proceedings

       The family came to the attention of the Iowa Department of Human

Services (DHS) in July 2015, upon allegations the father was using

methamphetamine in the home when the children were present.                    He tested

positive for methamphetamine and amphetamine and also admitted to his use of

cocaine and Adderall. A denial of critical care was founded as to the father. The

mother was pregnant at the time with I.J. and claimed no knowledge of the

father’s drug use. The children were removed from the father’s care shortly
1
  We need not review any step of the three-step analysis the juvenile court must make in
terminating a parent’s parental rights if the step was not challenged by the parent on
appeal. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).
2
  The children are: K.J., born 2003; T.J., born 2005; L.J., born 2013; and I.J., born 2015.
Both parents’ parental rights were terminated as to the three older children under Iowa
Code section 232.116(1)(f) (2017), and (h) as to I.J. Just after the termination hearing
concluded, a fifth child, S.J., was born, and therefore, this child is not part of these
proceedings.
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thereafter. The mother signed a safety plan, agreeing she would not allow the

father to be around the children unsupervised. The children were adjudicated in

need of assistance (CINA) on October 2, 2015. The children remained in the

care of the mother until they were removed in January 2016 after it was reported

she too had used methamphetamine with the children present and she was

allowing the father unsupervised contact with the children. Intensive services

were offered to the parents with partial success. After a two-day hearing in May

2017, the district court terminated the parental rights of both parents.

       II. Father’s Appeal

       The father asserts the State failed to prove the fourth element of Iowa

Code section 232.116(1)(f) and (h)3, claiming his drug use alone is insufficient to

show “some harm” to the children. See Iowa Code § 232.102.4 He also asserts

he should have been given an additional six months to work towards reunification

as he is currently working on achieving sobriety and the bond he has with the

children should preclude termination.

       In early March 2016—several months after the children were removed

from his care—the father was arrested on drug charges. He attended residential

substance abuse treatment in April on pretrial release. In June, he pled guilty to

possession of a controlled substance (methamphetamine) with intent to deliver.

3
  The fourth element of 232.116(1)(f) (as to children age four or older) and (h) (as to
children age three or younger) are similar. Under section 232.116(1)(f)(4), the State
must prove “[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 as provided in section 232.102.”
Under section 232.116(1)(h)(4) the State must prove, “(4) [t]here 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.”
4
  Section 232.102(6)(a)(2) provides, “The child cannot be protected from some harm
which would justify the adjudication of the child as a child in need of assistance and an
adequate placement is available.”
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In August, judgment was deferred, and he was placed on supervised probation

for two years. In November, while denying any drug use, a report of probation

violations   was   filed,   which   included   positive   drug    screenings    for

methamphetamine on September 14, October 13 and October 25, one full year

after the children were removed from his care. After stipulating to the violations,

the father was again incarcerated, where he remained before entering another

residential substance abuse treatment program in early February 2017. By the

time of the May 2017 termination hearing, the father had participated in four

substance abuse treatment programs. He was “successfully” discharged from

one of those programs, yet relapsed and later began another program. His claim

at the termination hearing was essentially that his success only part of the way

through this latest residential program should demonstrate that he can maintain

sobriety. However, it was apparent to the district court any partial success while

in a controlled environment was insufficient to overcome the more than ten years

of the father’s substance abuse, such that the children could be returned to his

care at the present time. We agree.

       Nonetheless, the father argues the court should have given him an

additional extension of time to work towards reunification with the children. See

Iowa Code § 232.104(2)(b) (providing a court may authorize a six-month

extension of time if it determines “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”).

However, the father had already been given a six-month extension at the

September 8, 2016 permanency hearing.           It was unsuccessful—with three
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subsequent positive drug tests—and there is little indication another extension

would prove otherwise.

      The father next asserts that he has a bond with the children that should

preclude termination under section 232.116(3).           While there was some

supporting evidence, especially of the bond between the two older children and

the father, there was also testimony from the oldest child’s therapist that spoke of

that child’s struggles with mild depression over “the situation” and, importantly,

that the child suffers from not knowing what will happen next. He needs stability

and needs to be able to move past the long uncertainty brought on by his father’s

drug use. Moreover, the domestic conflict in the home coupled with the father’s

mental health problems went unaddressed by the father during the pendency of

these proceedings. As the district court found, any negative impact termination

has on the children is outweighed by the father’s inability to meet the children’s

long-term needs. We affirm the termination of the father’s parental rights.

      III. Mother’s Appeal

      Like the father, the mother asserts the State failed to prove by clear and

convincing evidence that the children could not be returned to her care at the

present time pursuant to the fourth element of section 232.116(1)(f) and (h). She

claims she will only stay with the father if his drug treatment is successful and,

therefore, there is no evidence she would subject the children to adjudicatory

harm if they were placed with her. See Iowa Code § 232.102(6)(a)(2).

      Had the mother been able to extricate herself from the dysfunctional

relationship with the father, these children might never have been removed from

her care or they might have been returned to her care after nearly two years of
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services offered to the mother.        However, the mother continued to put her

relationship with the father ahead of learning the skills she needed to be able to

protect the children. The DHS worker testified, “The outstanding concerns are

[the mother’s] ability to protect the children . . . if [the father] were to relapse, her

continuing need to address her mental health and learn new skills, the father’s

substance abuse issues, his unresolved mental health issues, and then their

relationship issues.” As the mother testified, “things between us have been rocky

for the most part. We’ve been together for a very long time, so obviously there’s

going to be a lot of relationship issues. And we were basically teenagers when

we got together.” She testified she is “not willing to risk the kids anymore” but

only came to that realization long after the children were removed from her care.

       In addition, she has not been able to recognize when the father is using

drugs, although she has testified since the first hearing in 2015 that “looking

back” she could “now” see indications of when he was on drugs. Her lack of

insight into the father’s drug use greatly impacted her ability to protect the

children.   This, coupled with the ongoing domestic struggles, manipulation,

codependency, and mental health issues, as well as the mother succumbing to

the father’s request that she use methamphetamine, compromised the mother’s

ability to protect the children from their dysfunctional home environment. As

such, the district court was correct in finding the children could not be returned

home at the present time under both section 232.116(1)(f) and (h).

       The mother also asserts termination is not in the children’s best interests.

Since the children were removed from their home, they have been able to

progress in their own physical, mental, and emotional development. See Iowa
                                           7


Code § 232.116(2) (giving “primary consideration to the child’s safety, 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”). All four

children are doing well living in the same foster home, and the foster parents

have indicated they would be willing to adopt the children should the parental

rights be terminated. They also agreed to allow limited contact with the parents

as recommended by the oldest child’s therapist.       As the district court found,

“[T]hese parents have repeatedly demonstrated they will put their relationship in

front of the children’s need of a stable, safe and loving environment.” The record

supports this finding, and we agree it is in the children’s best interests the

mother’s parental rights are terminated.

      The mother’s final issue is the district court’s failure to reopen the record

after the conclusion of the termination hearing on May 5.        On May 12, the

couple’s fifth child, S.J., was born, and on May 16, the State petitioned to have

this child adjudicated in need of assistance. A contested hearing was held on

July 5, and on July 26, the mother moved to reopen the termination record as to

the older four children, seeking to include S.J.’s CINA record into the termination

record. However, as of that date, no ruling had been made on the adjudication of

S.J. The State resisted the motion to reopen the record. On July 31, the court

filed its termination order, and on August 1, the court denied the motion to reopen

the record without a hearing.

      The State asserts this issue is not preserved as the notice of appeal only

included “all adverse rulings and orders inhering therein on July, 31, 2017.” We

agree. See In re A.B., 815 N.W.2d 764, 773 (Iowa 2012) (“[T]he general rule that
                                          8


appellate arguments must first be raised in the trial court applies to CINA and

termination of parental rights cases.”); see also Thomas A. Mayes & Anuradha

Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives on

Present Practice, 55 Drake L. Rev. 39, 48 (Fall 2006) (“However error is

preserved, it is not preserved by filing a notice of appeal. While this is a common

statement in briefs, it is erroneous, for the notice of appeal has nothing to do with

error preservation.”). We also agree with the State that the mother’s assertion

she should have been allowed to have her motion to reopen come on for hearing

was not preserved for our review because she failed to ask for a hearing at the

time.   Finally, the State asserts the code section under which the mother’s

parental rights were terminated, section 232.116(1)(f) and (h), concern whether

the children can be returned home at the time of the termination hearing—May 5,

not at some later date. We agree the statute is clear as to that time reference

and affirm the district court’s denial of the motion to reopen the record.

        Having considered the issues raised by both parents on appeal, we affirm

the termination of the mother’s and the father’s parental rights.

        AFFIRMED ON BOTH APPEALS.
