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In re K.S.

Court of Appeals of Iowa

March 8, 2017

IN THE INTEREST OF K.S., Minor child, J.S., Father, Appellant.

         Appeal from the Iowa District Court for Polk County, Susan C. Cox, District Associate Judge.

         The father appeals from the order terminating his parental rights to his child, pursuant to Iowa Code section 232.116(1)(h) (2016). AFFIRMED.

          Magdalena B. Reese of Cooper, Goedicke, Reimer, & Reese, P.C., West Des Moines, for appellant father.

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

          Congarry D. Williams of State Public Defender Office, Des Moines, guardian ad litem for minor child.

          Considered by Potterfield, P.J., and Doyle and Tabor, JJ.

          POTTERFIELD, Presiding Judge.

         The father appeals from the order terminating his parental rights to his child, K.S., born in October 2015. The juvenile court terminated the father's parental rights pursuant to Iowa Code section 232.116(1)(h) (2016). We affirm.

         I. Background Facts Proceedings.

         Meggen, the mother, [1] was pregnant with K.S. when she was paroled to the House of Mercy, a transitional housing facility, on October 5, 2015. K.S. was born shortly thereafter. The mother absconded from her parole at the House of Mercy and hid from law enforcement with K.S. at the residence of Justin, the father, in Greenfield, Iowa. The Iowa Department of Human Services (DHS) became involved immediately, an arrest warrant was issued for the mother, and on December 9, 2015, pick up and removal orders for K.S. were entered by the court, citing the father's drug use and criminal history as well as the mother's. On December 18, 2015, the court confirmed removal based on the mother and father's criminal activity and history of substance abuse.[2] The father was summoned and appeared in court for the removal hearing. The court provided him with written notice that the continuation of removal could result in the termination of his parental rights. K.S. was placed with the maternal grandmother, where K.S. has remained during the proceedings. On January 25, 2016, the court adjudicated K.S. a child in need of assistance.

         Both parents have an extensive history of mental-health issues, substance abuse, and criminal activity. DHS offered an array of services to achieve reunification, including child protective services (CPS) assessments, ongoing case management services, substance-abuse evaluation and treatment, drug testing, and family safety, risk, and permanency (FSRP) services. Initially, the father had some success with the services. In late December 2015, the FSRP worker noted positive interactions between the father and K.S. at supervised visitations. Despite a few cancellations due to weather and illness, the father was visiting K.S. regularly. In January 2016, however, the father relapsed and tested positive for amphetamines and methamphetamine. Shortly after, his utility company shut off his gas, and he failed to meet the FSRP worker within fifteen minutes of the visitation time, which required the worker to cancel a visit. DHS decided to move the visits from Greenfield to Des Moines because the father failed to meet the FSRP worker at a previous visit and the travel time disrupted the child's sleeping schedule. At DHS's recommendation, the father successfully completed inpatient substance-abuse treatment on March 4, 2016, and he began outpatient treatment on April 28, 2016.

         Despite the progress during visitations and a round of inpatient substance abuse treatment, the father relapsed multiple times on amphetamines and methamphetamine. On May 16, 2016, he tested positive for methamphetamine. In July 2016, the father was unsuccessfully discharged from his outpatient treatment facility for a lack of attendance. During testimony at the termination trial on September 1, 2016, the father admitted to using methamphetamine multiple times over the summer. He also stated he had not seen K.S. in a couple of months because he was using illegal substances; he admitted to using methamphetamine seven days before the termination trial.

         Only three days before trial, the father entered an intensive inpatient care facility in California. He testified at the termination trial by telephone. His counselor testified that he was progressing by not oversleeping and by attending all of his meetings. However, there was not a complete diagnosis and the length of his treatment was uncertain. On October 30, 2016, the court issued an order terminating the father's parental rights. The father appealed the termination order.

         We entered an order for further briefing on the issue of whether K.S. was "removed from the physical custody" of the father in light of the Iowa Supreme Court's order interpreting the "removal" aspect of Iowa Code section 232.116 (1)(h)(3). See In re C.F.-H., 889 N.W.2d 201, 203-08 (Iowa 2016). The Supreme Court's ruling was filed after the juvenile court's order terminating the father's rights. The father and the State filed an additional brief.

         II. Standard of Review.

         We conduct a de novo review of proceedings terminating parental rights. In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). An order terminating parental rights will be upheld if there is clear and convincing evidence of grounds for termination under Iowa Code section 232.116. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). Evidence is "clear and convincing" when there are no serious or substantial doubts as to the correctness of conclusions drawn from it. Id. We give weight to the factual determinations of the juvenile court, particularly regarding the credibility of witnesses, although we are not bound by them. Id. The primary consideration of our review is the best interests of the child. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).

         III. ...


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