                       IN THE COURT OF APPEALS OF IOWA

                                      No. 20-0145
                                  Filed April 15, 2020


IN THE INTEREST OF T.W.,
Minor Child,

M.H., Father,
       Appellant.
________________________________________________________________


          Appeal from the Iowa District Court for Madison County, Brendan Greiner,

District Associate Judge.



          A father appeals the termination of his parental rights. AFFIRMED.



          John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant

father.

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

Attorney General, for appellee State.

          Shireen Carter, Norwalk, attorney and guardian ad litem for minor child.



          Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
                                          2


MAY, Judge.

       A father appeals from the termination of his parental rights to his child, T.W.

He argues (1) the State failed to satisfy the statutory grounds authorizing

termination, (2) termination is not in T.W.’s best interest, (3) his bond with T.W.

should preclude termination, and (4) he should be given additional time to work

toward reunification.

       We review termination proceedings de novo. In re P.L., 778 N.W.2d 33, 40

(Iowa 2010). “We will uphold an order terminating parental rights where there is

clear and convincing evidence of the statutory grounds for termination. Evidence

is clear and convincing when there is no serious or substantial doubt as to the

correctness of the conclusions of law drawn from the evidence.” In re T.S., 868

N.W.2d 425, 431 (Iowa Ct. App. 2015) (citing In re D.W., 791 N.W.2d 703, 706

(Iowa 2010)).

       We generally use a three-step analysis to review the termination of parents’

rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). We must determine whether:

(1) grounds for termination have been established, (2) termination is in the

children’s best interests, and (3) we should exercise any of the permissive

exceptions to termination. Id. at 472–73. Finally, we consider any additional

arguments raised by the father.

       The father claims the State failed to satisfy the statutory grounds authorizing

termination. The juvenile court found grounds for termination under Iowa Code

section 232.116(1)(e) and (h) (2019). When, as here, the juvenile court terminates

on multiple statutory grounds, we may affirm on any ground supported by the

record. See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). We focus on section
                                          3


232.116(1)(h). Section 232.116(1)(h) authorizes termination of a parent’s parental

rights when:

               (1) The child is three years of age or younger.
               (2) The child has been adjudicated a child in need of
       assistance pursuant to section 232.96.
               (3) The child has been removed from the physical custody of
       the child’s parents for at least six months of the last twelve months,
       or for the last six consecutive months and any trial period at home
       has been less than thirty days.
               (4) There 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.

       The father only challenges the fourth element. He contends: “The State has

not proven by clear and convincing evidence that T.[W.] would suffer some sort of

adjudicatory harm if he were returned to his father’s care and custody and would

he be able and willing to respond to additional services and would additional time

benefit the father if those services were offered.”1

       But, to satisfy section 232.116(1)(h)(4), the State was only required to prove

T.W. could not be safely returned to the father at the time of the termination

hearing. That is how our supreme court interpreted section 232.116(1)(h)(4) in




1To the extent the father attempts to challenge whether the State made reasonable
efforts to facilitate reunification, his argument is not sufficiently developed for our
review. See In re K.M., No. 19-1637, 2020 WL 110408, at *3 n.6 (Iowa Ct. App.
Jan. 9, 2020); In re O.B., No. 18-1971, 2019 WL 1294456, at *2 (Iowa Ct. App.
Mar. 20, 2019).
                                          4


2018,2 2017,3 2016,4 2014,5 and 2010.6 So we believe the “safely returned”

standard is binding on this intermediate appellate court. See In re C.L.C. Jr., 798

N.W.2d 329, 335 n.1 (Iowa Ct. App. 2011) (noting “as an intermediate appellate

court we must follow the precedents of our supreme court”). Indeed, our court

applies it on a regular basis.    See, e.g., In re M.M., No. 20-0058, 2020 WL

1310254, at *2 (Iowa Ct. App. Mar. 18, 2020) (“For all of these reasons, we

conclude there is clear and convincing evidence in the record to show the children

could not be safely returned to the mother’s care. We conclude the mother’s

parental rights were properly terminated under section 232.116(1)(f) and (h).”); In



2  A.S., 906 N.W.2d at 473 (“We also conclude that there is clear and convincing
evidence that at the time of the termination hearing, the child could not be safely
returned to A.S.’s custody.”).
3 In re L.M., 904 N.W.2d 835, 839 (Iowa 2017) (“Accordingly, we find clear and

convincing evidence that custody of L.M. could not be returned to [the parent] at
the time of the termination hearing.”); see id. (noting “[t]he State must show
reasonable efforts as a part of its ultimate proof the child cannot be safely returned
to the care of a parent” (citation omitted)).
4In re M.W., 876 N.W.2d 212, 223 (Iowa 2016) (“Based on our de novo review of

the record, we conclude there is clear and convincing evidence that each of the
four requirements of Iowa Code section 232.116(1)(h) have been met for both
M.W. and Z.W., and the grounds for termination were proven. . . . Finally, there is
clear and convincing evidence in the record that at the time of the termination
hearing, the children could not be safely returned to the custody of R.W.”).
5 In re A.M., 843 N.W.2d 100, 112 (Iowa 2014) (“The record thus shows A.M. could

not be returned to the care of her parents at the time of the hearing. We find clear
and convincing evidence that grounds for termination of [the parents’] parental
rights were established under Iowa Code section 232.116(1)(h).”); see id. (“It is
significant to us that neither the third-party service providers nor the [guardian ad
litem] believed A.M. could be safely returned to her parents at the time of trial.”).
6 D.W., 791 N.W.2d at 707 (“Section 232.116(1)(h) provides that termination may

be ordered when there is clear and convincing evidence that a child under the age
of three who has been adjudicated a [child in need of assistance] and removed
from the parents’ care for at least the last six consecutive months cannot be
returned to the parents’ custody at the time of the termination hearing. . . . The
record does not provide any evidence that D.W. could safely be returned home
with A.W. at the time of the termination hearing.” (citation omitted)).
                                           5

re A.H., No. 19-2024, 2020 WL 1049846, at *3 (Iowa Ct. App. Mar. 4, 2020) (“We

conclude the children could not be safely returned to the father’s care. There is

clear and convincing evidence to support termination of the father’s parental rights

under section 232.116(1)(h).”); In re C.Y., No. 19-1806, 2020 WL 1049541, at *2

(Iowa Ct. App. Mar. 4, 2020) (“Based on our de novo review of the record, we

conclude there is clear and convincing evidence the child could not be safely

returned to the father’s care at the time of the termination hearing. . . .     We

conclude clear and convincing evidence supports terminating the father’s parental

rights under Iowa Code section 232.116(1)(h).”); In re M.H., No. 19-1195, 2020

WL 110391, at *2–3 (Iowa Ct. App. Jan. 9, 2020) (noting “[t]he mother challenges

the fourth element [of section 232.116(1)(h)], claiming the child can be immediately

returned to her custody and care” and concluding “clear and convincing evidence

shows the child cannot be safely returned to her care at the present time”); In re

P.H., No. 19-1115, 2019 WL 5791037, at *2 (Iowa Ct. App. Nov. 6, 2019) (“[The

mother] does not address the fourth element of subsection (h), that the child cannot

be returned ‘at the present time.’ . . . Even if [the mother] had contested this

element, the record supports the juvenile court’s decision that P.H. could not be

safely returned to her mother’s care.”).

       We acknowledge, though, that many Iowa appellate decisions have

interpreted section 232.116(1)(h)(4) to require proof that returning the child would

create a risk of “adjudicatory harm.” See, e.g., In re A.R.C. III, No. 13-0786, 2013

WL 3458222, at *5 (Iowa Ct. App. July 10, 2013). By this, our cases have meant

“some harm which would justify the adjudication of the child as a child in need of

assistance,”   a   phrase   that   currently   appears   in   Iowa   Code   section
                                          6

232.102(6)(a)(2). See, e.g., In re K.S., No. 16-1258, 2016 WL 5485103, at *1

(Iowa Ct. App. Sept. 28, 2016); accord In re M.S., 05-0667, 2005 WL 1398497, at

*3 (Iowa Ct. App. June 15, 2005); In re C.N.G., No. 03-1717, 2003 WL 22900901,

at *4 (Iowa Ct. App. Dec. 10, 2003). Thus, under the “adjudicatory harm” standard,

section 232.116(1)(h)(4) is satisfied only if the child “cannot be returned to the

parental home because the definitional grounds of a child in need of assistance,

Iowa Code [section] 232.2(6), exist.” In re A.M.S., 419 N.W.2d 723, 725 (Iowa

1988).

         It is not entirely clear whether—as a practical matter—the “adjudicatory

harm” standard is different from the “safely returned” standard. Many children

become a child in need of assistance (CINA) because of safety issues involving a

parent. So, there is likely substantial overlap between the categories of (1) children

who cannot be safely returned to a parent and (2) children who, if returned, would

meet the definition of a CINA.

         But we need not decide whether the two standards are materially different

or—if so—which is better. We believe the supreme court has resolved the issue

through its recent decisions.7         Those decisions teach us that section


7  Although earlier supreme court cases employed the “adjudicatory harm”
standard, see, e.g., In re M.M., 483 N.W.2d 812, 815–16 (Iowa 1992), we follow
the court’s most recent guidance. See Dix v. Casey’s Gen. Stores, Inc., No. 18-
1464, 2020 WL 105087, at *4 (Iowa Ct. App. Jan. 9, 2020) (citing and following the
supreme court’s most recent cases); State v. Ritenour, No. 15-0038, 2016 WL
3269551, at *15 (Iowa Ct. App. June 15, 2016) (McDonald, J., specially concurring)
(referencing and applying “[t]he supreme court’s most recent decision”); State v.
Hayslip, No. 00-0878, 2001 WL 194886, at *2 (Iowa Ct. App. Feb. 28, 2001)
(referencing and applying “our supreme court’s most recent published
pronouncement on [the] subject”); see also Patterson v. PowderMonarch, LLC,
926 F.3d 633, 637 (10th Cir. 2019) (“In applying Colorado law, we ‘must follow the
most recent decisions of the state’s highest court.’” (citation omitted)); Eastern
                                          7


232.116(1)(h)(4) is satisfied only if “the child could not be safely returned” to the

parent “at the time of the termination hearing.” See A.S., 906 N.W.2d at 473.

       So we apply the “safely returned” standard here. And we find it is satisfied.

The father’s petition on appeal concedes that “[a]dmittedly because [the father]

has unresolved substance abuse and domestic violence issues he cannot

presently take custody of T.[W].” Following our de novo review, we agree with the

father’s assessment. The child could not be safely returned at the time of the

termination hearing. Section 232.116(1)(h)(4) is satisfied.

       We further note that, even if risk of “adjudicatory harm” were required, we

would reach the same conclusion. As noted, “adjudicatory harm” means the child

could qualify as a CINA if returned to the parent. Under section 232.2(6)(c), (n),

and (p), a “[c]hild in need of assistance”—or CINA—includes any

       [u]nmarried child:
               ....
           c. Who has suffered or is imminently likely to suffer harmful
       effects as a result of any of the following:
           (1) Mental injury caused by the acts of the child’s parent,
       guardian, or custodian.
           (2) The failure of the child’s parent, guardian, custodian, or other
       member of the household in which the child resides to exercise a
       reasonable degree of care in supervising the child.

Shawnee Tribe of Oklahoma v. United States, 598 F.3d 1326, 1327 n.1 (Fed. Cir.
2010) (noting when “decisions are inconsistent, we are obligated to follow the
court’s most recent decision”); Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 884
(10th Cir. 2006) (“Because this determination necessarily involves interpretation of
Oklahoma law, we apply the most recent pronouncement of the Oklahoma
Supreme Court.”); United States v. Hardy, 77 M.J. 438, 441 n.5 (C.A.A.F. 2018)
(“When confronted with conflicting precedents, we generally follow the most recent
decision.”); State v. Berry, 506 S.W.3d 357, 362 n.5 (Mo. Ct. App. 2016) (“[T]he
Court of Appeals is constitutionally bound to follow the most recent controlling
decision of the Supreme Court of Missouri.”(alteration in original) (citation
omitted)); Yarbrough v. State, 57 S.W.3d 611, 618 (Tex. App. 2001) (“Being
required to follow the most recent decision of the Court of Criminal Appeals directly
on point . . . .” (footnote omitted)).
                                          8


           . . . . [or]
           n. Whose parent’s or guardian’s mental capacity or condition,
       imprisonment, or drug or alcohol abuse results in the child not
       receiving adequate care.
           . . . . [or]
           p. Whose parent, guardian, custodian, or other adult member of
       the household in which a child resides does any of the following:
       unlawfully uses, possesses, manufactures, cultivates, or distributes
       a dangerous substance in the presence of a child; or knowingly
       allows such use, possession, manufacture, cultivation, or distribution
       by another person in the presence of a child; possesses a product
       with the intent to use the product as a precursor or an intermediary
       to a dangerous substance in the presence of a child; or unlawfully
       uses, possesses, manufactures, cultivates, or distributes a
       dangerous substance specified in subparagraph (2), subparagraph
       division (a), (b), or (c), in a child's home, on the premises, or in a
       motor vehicle located on the premises.
           (1) For the purposes of this paragraph, “in the presence of a child”
       means in the physical presence of a child or occurring under other
       circumstances in which a reasonably prudent person would know
       that the use, possession, manufacture, cultivation, or distribution
       may be seen, smelled, ingested, or heard by a child.
           (2) For the purposes of this paragraph, “dangerous substance”
       means any of the following:
           ....
           (b) Methamphetamine, its salts, isomers, or salts of its isomers.

       When a parent is actively addicted to methamphetamine while caring for

children, those children may be at risk for adjudicatory harm under section

232.2(6)(c), (n), and (p). See, e.g., In re P.D., No. 19-1824, 2019 WL 6894420, at

*1 (Iowa Ct. App. Dec. 18, 2019) (“Given the mother’s continued use of

methamphetamine, the child would be at risk of adjudicatory harm.”); see also In

re C.H., No. 16-0144, 2016 WL 1129311, at *3 (Iowa Ct. App. Mar. 23, 2016) (“[W]e

agree with the district court the evidence established that C.H.’s adjudication under

paragraph (c)(2) should remain, as there continues to be concerns regarding the

volatile relationship between the parents and their subsequent vulnerability to

relapsing on methamphetamine.”); In re J.C., No. 13-0597, 2013 WL 3291867, at
                                          9


*2 (Iowa Ct. App. June 26, 2013) (“A parent using methamphetamine while caring

for a child is known to be a significant danger and pose great harm to that child.”).

       Here, the father admitted to consistent “daily” methamphetamine use since

he was eighteen. He is now in his thirties. And he was arrested for possession of

methamphetamine only two months prior to the termination hearing. Moreover, he

has a history of domestic abuse.       Indeed, the father properly concedes that,

because of his “unresolved substance abuse and domestic violence issues[,] he

cannot presently take custody of T.[W].” And the juvenile court found the father

“has three serious unresolved impairments to reunification: domestic violence,

substance abuse, and untreated mental health.” Ultimately, the court concluded

the father “continues to struggle with a severe addiction to methamphetamine and

[T.W.] will be placed in adjudicatory harm if he is placed in [the father]’s custody.”

We agree, and we reaffirm our conclusion that section 232.116(1)(h)(4) is satisfied.

       Next, we consider whether termination is in T.W.’s best interest.            In

considering T.W.’s best interest, we “give primary consideration to the child’s

safety, to 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.” P.L., 778 N.W.2d at 40 (quoting Iowa Code § 232.116(2)). “It is well-settled

law that we cannot deprive the 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 be able to provide a stable home for the child.” Id. at 41.

       We conclude termination is in T.W.’s best interest. By the father’s own

admission, he has unresolved methamphetamine-abuse and domestic-abuse

issues. These issues are inherently incompatible with safe parenting. See In re
                                           10

K.F., No. 19-1828, 2020 WL 375951, at *2 (Iowa Ct. App. Jan. 23, 2020) (finding

termination to be the child’s best interest when a parent has an unresolved drug

addiction and there is history of domestic abuse between parents). And safety is

a “defining element[]” of our best-interest analysis. In re J.E., 723 N.W.2d 793,

802 (Iowa 2006) (Cady, J., specially concurring).

      We complete our three-step analysis by considering if section 232.116(3)

should be applied to preclude termination. “[T]he parent resisting termination

bears the burden to establish an exception to termination” under section

232.116(3). See A.S., 906 N.W.2d at 476. Even if the parent proves an exception

could apply, we are not required to decline termination. A.M., 843 N.W.2d at 113.

We exercise our discretion, “based on the unique circumstances of each case and

the best interests of the child,” to determine whether the parent-child relationship

should be saved. Id. (citation omitted).

      The father argues section 232.116(3)(c) applies. Section 232.116(3)(c)

permits the court to forgo termination when “[t]here is clear and convincing

evidence that the termination would be detrimental to the child at the time due to

the closeness of the parent-child relationship.” But the juvenile court did not

“believe any parent-child bond exist[ed] between [the father] and [T.W.].” We defer

to the juvenile court’s finding. See M.W., 876 N.W.2d at 219. So we decline to

apply section 232.116(3)(c) to forgo termination.

      Finally, we address the father’s request for “additional time so that when he

has addressed his substance abuse and domestic violence issues and has a
                                         11


stable living environment he can take custody of his child.”8 The juvenile court

may defer termination for a period of six months if it is able to “enumerate the

specific 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.” Iowa Code

§ 232.104(2)(b). While the father makes a general statement about conditions he

believes could change with additional time, he does not provide any explanation

as to how he would make these changes. We will not force T.W. to wait in limbo

when the father may or may not turn over a new leaf. See D.W., 791 N.W.2d at

707 (“We do not ‘gamble with the child[]’s future’ by asking them to continuously

wait for a stable biological parent, particularly at such tender ages.” (citation

omitted)).

       The juvenile court was correct in terminating the father’s parental rights.

       AFFIRMED.

       Vaitheswaran, P.J., concurs; Doyle, J., concurs specially.




8We question whether the father preserved error as to this claim. A parent cannot
request additional time to work toward reunification for the first time on appeal.
See In re A.U., No. 13-0599, 2013 WL 2646971, at *3 (Iowa Ct. App. June 12,
2013) (explaining traditional error-preservation rules apply to termination-of-
parental-rights proceedings). But we interpret his request at the termination
hearing for the court to not terminate and instead keep the CINA case open as a
request for additional time.
                                         12


DOYLE, Judge (specially concurring).

       I concur with the majority’s disposition but take this opportunity to comment

on the conundrum faced by the court—has the supreme court supplanted the

“adjudicatory harm” standard with a more relaxed “safely returned” standard in

applying the fourth element of Iowa Code section 232.116(1)(h)? Without deciding

whether the two “standards” are materially different, the majority concludes the

supreme court has resolved the issue by employing the “safely returned” language

in its recent decisions. But the supreme court has not overruled its cases, or our

cases, employing the “adjudicatory harm” standard, nor has it explained the shift

to the “safely returned” language. So I disagree that the issue is resolved. In any

event, I believe the “safely returned” standard is merely judicial shorthand for the

“adjudicatory harm” standard, and, under either, the State must show that the child

cannot be returned to the parent’s custody without risk of adjudicatory harm.

       The fourth element of section 232.116(1)(h) requires the State to prove

“[t]here is clear and convincing evidence that the child cannot be returned to the

custody of the child’s parent as provided in section 232.102 at the present time.”9

Iowa Code § 232.116(1)(h)(4). What does this mean? Central to the determination

is section 232.102(6). It provides:

              Whenever possible the court should permit the child to remain
       at home with the child’s parent . . . . Custody of the child should not
       be transferred unless the court finds there is clear and convincing
       evidence that:
              ....
              (2) The child cannot be protected from some harm which
       would justify the adjudication of the child as a child in need of
       assistance.

9“At the present time” means “at the time of the termination hearing.” In re D.W.,
791 N.W.2d 703, 707 (Iowa 2010).
                                        13


Iowa Code § 232.102(6(a)(2).       Section 232.2(6) defines “child in need of

assistance.” So the fourth element is met when the child cannot be returned to the

parental home because the definitional grounds of a child in need of assistance,

under section 232.2(6), exist at the time of the termination hearing. In re K.L.C.,

372 N.W.2d 223, 227 (Iowa 1985) (finding termination may only take place when

the child cannot be returned to the parental home because definitional grounds of

a “child in need of assistance” still exist); see also In re M.M., 483 N.W.2d 812,

815-16 (Iowa 1992); In re A.M.S., 419 N.W.2d 723, 725 (Iowa 1988) (discussing

same language applicable here); In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct. App.

1995) (discussing section 232.116(1)(g)(4), now renumbered 232.116(1)(h)(4)). “If

any one of the grounds listed in section 232.2(6) can be proven by clear and

convincing evidence, there is a sufficient basis for termination.” In re R.R.K, 544

N.W.2d at 277 (citing In re M.W., 458 N.W.2d 847, 850 (Iowa 1990)).

      Recently, in considering element four of section 232.116.1(h), we said in a

published opinion:

      This section requires the State to prove by “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.”
      Iowa Code § 232.116(1)(h)(4). “[A] child cannot be returned to the
      custody of the child’s parent under section 232.102 if by doing so the
      child would be exposed to any harm amounting to a new child in need
      of assistance adjudication.” In re M.M., 483 N.W.2d 812, 814 (Iowa
      1992).

In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App. 2016).10 This language, or similar

language, has been used by this court many times since then. See, e.g., In re K.L.,



10“The threat of probable harm will justify termination, and the perceived harm
need not be the one that supported the child’s initial removal from the home.”
                                         14


No. 20-0012, 2020 WL 1049874, at *1 (Iowa Ct. App. Mar. 4, 2020) (“A child cannot

be returned to a parent’s custody if doing so would expose the child to any harm

amounting to a new CINA adjudication.”); In re P.C., No. 19-1387, 2020 WL

110435, at *2 (Iowa Ct. App. Jan. 9, 2020) (“[T]he child cannot be returned to the

[parent]’s custody without risk of adjudicatory harm”).

       As pointed out by the majority, in applying the fourth element of section

232.116(1)(h), our courts have articulated a “safely returned”11 standard for over a

decade. But I do not view this as a change in the requisite burden of proof. Other

than renumbering, the statutory framework has not changed since the supreme

court held there must be clear and convincing evidence “that the child will suffer

harm specified in section [232.2(6)] if returned to the parent.” K.L.C., 372 N.W.2d

at 227. And bolstering my view that the “safely returned” standard is just judicial

shorthand for the “adjudicatory harm” standard is In re Dameron, where the

supreme court said: “[W]e find there is clear and convincing evidence that the

Dameron children cannot be returned to their parents. Stated otherwise, the

evidence convinces us that the children will suffer harm if returned.”        In re

Dameron, 306 N.W.2d 743, 747 (Iowa 1981) (emphasis added).              Lastly, the

supreme court has not overruled cases employing the “adjudicatory harm”

standard, nor has it indicated the “safely returned” standard is different than the

“adjudicatory harm” standard.




M.M., 483 N.W.2d at 814; see In re C.M.T., 433 N.W.2d 55, 56 (Iowa Ct. App.
1988).
11 The language varies from “could not be safely returned,” “cannot be safely

returned,” “could not be returned,” and “cannot be returned.”
                                        15


      But even if there is a material difference in requisite proof under the two

“standards,” it would make no difference here. The State met its burden under

either standard. As the majority notes, the father’s petition on appeal concedes

that “[a]dmittedly because [the father] has unresolved substance abuse and

domestic violence issues he cannot presently take custody of T.[W].” And a de

novo review of the record reveals that the State did indeed prove by clear and

convincing evidence that T.W. could not be returned to the father’s custody without

risk of adjudicatory harm as defined in section 232.2(6). I therefore agree with the

majority that a statutory ground authorizing termination was satisfied.
