                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-2092
                               Filed March 4, 2020


IN THE INTEREST OF A.D.,
Minor Child,

D.D., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Colin J. Witt, District

Associate Judge.



       A father appeals the termination of his parental relationship with his three-

year-old daughter. AFFIRMED.



       Dale Mays of Mays and Clausen Law Office, Newton, for appellant father.

       Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant

Attorney General, for appellee State.

       Paul White, Juvenile Public Defender’s Office, Des Moines, attorney and

guardian ad litem for minor child.




       Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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TABOR, Presiding Judge.

       A.D. has been in a kinship placement for two of her three years of life. Her

parents lost custody because their substance abuse prevented them from

providing a safe and stable home for her. But by the time of the hearing on the

termination of parental rights, her father—Devin—was seeking treatment and had

been sober for nearly a year. Facing a difficult decision, the juvenile court found it

was in A.D.’s best interests to terminate parental rights so she could find

permanency through adoption. Devin appeals that decision.

       Although it is a close call, after our full review of the record, we reach the

same conclusion as the juvenile court.1 The prospect of waiting another six months

for permanency is not in A.D.’s best interests.

       I.     Facts and Prior Proceedings

       A.D. tested positive for methamphetamines at her birth in September 2016.

Because of that test, the Iowa Department of Human Services (DHS) removed

A.D. from her parents’ custody at the hospital and placed her with the foster family

who adopted her half-siblings.2 The birth parents received court-ordered services,

and the DHS returned A.D. to their home in September 2017.

       But one year later, a welfare check on A.D. revealed her parents were

caring for her while extremely intoxicated. Police found both parents passed out.



1 We review child-welfare cases de novo. In re M.W., 876 N.W.2d 212, 219 (Iowa
2016). The juvenile court’s fact findings do not bind us, but we give them weight,
particularly on credibility issues. Id. Our top concern is A.D.’s best interests. See
In re L.T., 924 N.W.2d 521, 529 (Iowa 2019).
2 The foster parents explained the DHS considered their family to be a kinship

placement because they had adopted the older children of A.D.’s mother. The
older children have a different father.
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Devin’s blood alcohol content tested at 0.315—more than three times the legal

limit for operating while intoxicated (OWI). In October 2018, A.D. went back to the

same foster home, where she stayed for the remainder of the case. A few months

later, Devin picked up his third OWI conviction.

       Throughout 2019, A.D. struggled with transitions between parental visits

and her foster home. Her foster mother reported A.D. saying she was “scared”

and hiding when the FSRP (family safety, risk and permanency) worker arrived to

transport her to visitation. A.D. also grappled with her emotions after returning

from those visits. A.D.’s play therapist likewise noticed her ambivalence about

continuing to see her parents. In a November 2019 letter, the therapist described

the theme of A.D.’s sessions as a “consistent sadness regarding visitation” with

her parents. While A.D. wanted to have visits, the girl said they lasted “too long.”

       At the termination-of-parental-rights hearing in November 2019, both

parents acknowledged they were not in a position to resume care of A.D. See

Iowa Code § 232.116(1)(h)(4) (2019). Devin was living at a rehabilitation center.

But he had lined up a new residence at a “recovery house” and secured

employment at an upscale restaurant. The juvenile court applauded Devin for his

current commitment to therapy. The juvenile court also recalled the parents’

progress in 2016 and 2017 but emphasized: “They relapsed, hard and quickly and

significantly. Resulting in [A.D.] not being supervised by sober and safe caretakers

in fall 2018.” The court had “no doubt” the parents loved A.D. Yet the court

decided her best interests were served by remaining in the foster home with her

biological siblings where her physical and emotional needs were being met. See

Iowa Code § 232.116(2). Devin contests that decision on appeal.
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       II.    Analysis

       Devin advances two contentions: (1) we should delay permanency for six

months and (2) termination of his parental rights is not in A.D.’s best interests. We

will address each claim in turn.

       A.     Six-Month Delay

       To continue a child’s placement for an additional six months, Iowa Code

section 232.104(2)(b) requires the court to determine the need for removal will no

longer exist at the end of the extension. Devin argues A.D. would not suffer

additional harm if the court granted a six-month extension to provide him time to

show he had “gotten his alcoholism under control.”

       Devin compares his situation to In re K.M., where our court found a child

would not experience disruption from a delay in permanency. No. 16-0795, 2016

WL 4379375, at *7–9 (Iowa Ct. App. Aug. 17, 2016). As we said in K.M., “A good

deal of prognostication is required in termination cases.” Id. at *9. There, the

twenty-year-old mother had completed several substance-abuse and life-skills

programs in prison to prepare for parenting her child upon her imminent release.

We expressed optimism she had matured and would succeed in her reunification

efforts. Id. In the meantime, K.M. was secure in her grandmother’s care. Id.

       Neither we nor the juvenile court could predict a similar resolution here.

Devin’s past performance gives insight into the quality of future care he is capable

of providing. See In re L.L., 459 N.W.2d 489, 493–94 (Iowa 1990). After regaining

custody of A.D in 2017, his dramatic relapse in the fall and winter of 2018 is

testament to the continued danger his substance abuse poses to A.D. Unlike the

mother in K.M., Devin cannot attribute his alcohol-related difficulties to the bad
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judgment of a juvenile. He was thirty-nine years old when A.D. was born. The

DHS case supervisor believed “Devin has minimized the trauma that [A.D.’s] two

removals and his incarceration during this case has caused her.” And Devin has

not demonstrated his ability to maintain long-term sobriety outside a prison or

treatment setting. Under these circumstances, we cannot muster confidence that

the need for removal would no longer exist at the end of a six-month extension.

       B.     Best Interests

       Meanwhile, A.D. continued to be anxious about visiting her birth parents,

according to her therapist and her foster mother. That therapist stressed the

importance of establishing a stable environment for A.D. Delaying permanency

contradicts those therapeutic recommendations.

       Still, Devin argues termination of his rights is not in A.D.’s best interests

because she has “demonstrated a bond with her father.” He emphasizes he has

displayed good parenting skills during supervised visits. Devin makes valid points.

But, while important, his positive relationship with A.D. is not the only consideration

in our best-interest assessment.

       In making the best-interests determination, we give primary consideration

to the child’s safety, the best placement for furthering her long-term nurturing and

growth, as well as her physical, mental, and emotional condition and needs. See

In re P.L., 778 N.W.2d 33, 37 (Iowa 2010). That consideration includes a child’s

integration into her foster family and their willingness to adopt. See Iowa Code

§ 232.116(2)(b). Safety and the need for a permanent home mark the “defining

elements” in a child’s best interests. In re J.E., 723 N.W.2d 793, 802 (Iowa 2006)

(Cady, J., concurring specially).
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       At the termination hearing, A.D.’s guardian ad litem (GAL) supported the

State’s termination petition and stressed “the length of time this child has been out

of the care of the parents is significant.” The GAL appreciated the efforts of the

foster parents as going “above and beyond” in caring for A.D. and her siblings. We

give weight to that professional opinion. At the same time, we recognize Devin

has taken positive steps toward being a stable parent. It’s just that those steps

come late in the life of the case and do not show a durable stability. Under these

circumstances, termination of parental rights serves A.D.’s best interests. See In

re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (declining to gamble with a child’s future

by asking her to “continuously wait for a stable biological parent,” particularly at a

tender age).

       AFFIRMED.
