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In re M.M.

Court of Appeals of Iowa

August 16, 2017

IN THE INTEREST OF M.M., Minor Child, A.M., Father, Appellant.

         Appeal from the Iowa District Court for Linn County, Susan F. Flaherty, Associate Juvenile Judge.

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

          Annette F. Martin, Cedar Rapids, for appellant father.

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

          Kimberly A. Opatz, Linn County Advocate, Cedar Rapids, guardian ad litem for minor child.

          Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.

          DOYLE, Judge.

         A father appeals the termination of his parental rights to his child, M.M.[1]He claims that the State failed to prove the statutory grounds for termination, that he should be granted additional time for rehabilitative services, and that termination of his parental rights will be detrimental to the child because of because of their strong bond. Upon our de novo review, see In re A.M., 843 N.W.2d 100, 110 (Iowa 2014), we affirm the juvenile court's order.

         The juvenile court terminated the father's parental rights pursuant to Iowa Code section 232.116(1)(h) (2016). This section provides termination may be ordered when there is clear and convincing evidence that a child age three or under who has been adjudicated a child in need of assistance (CINA) and removed from the parents' care for at least six of the last twelve months, or the last six consecutive months, cannot be returned to the parents' custody at the time of the termination hearing. See Iowa Code § 232.116(1)(h). The first three elements of paragraph (h) are not in dispute; rather, the father asserts on appeal that the State failed to prove the fourth element. See Iowa Code § 232.116(1)(h)(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."). To satisfy its burden of proof, the State must establish "[t]he child cannot be protected from some harm which would justify the adjudication of the child as a child in need of assistance." See id. § 232.102(5)(2); see also In re A.M.S., 419 N.W.2d 723, 725 (Iowa 1988). The threat of probable harm will justify termination of parental rights, and the perceived harm need not be the one that supported the child's initial removal from the home. See In re M.M., 483 N.W.2d 812, 814 (Iowa 1992). "At the present time" refers to the time of the termination hearing. A.M., 843 N.W.2d at 111.

         The father's argument that the State failed to prove the child could not be returned to his custody at the time of the termination hearing is fatally flawed. On appeal, he asks that he be granted an additional period of time for rehabilitative services. This request for more time is certainly a tacit, if not explicit, admission that the child could not be returned to his care at the time of the termination hearing. He admitted at the hearing that placement of the child with him was "a long ways off." He testified it would be three months before the child could be returned to his care. He was asked,

if you had three more months of clean, consistent drug testing, three more months of continued care at the methadone clinic, three more months of stability in your housing and employment and three more months of consistency in your visitation, you think that [the child] would be able to be returned to your care and not be removed from your care?

         He answered, "Yes." Given the circumstances, we believe this is sufficient evidence for the establishment of element four of section 232.116(1)(h). See In re Z.G., No. 16-2187, 2017 WL 1086227, at *4 n.5 (Iowa Ct. App. Mar. 22, 2017) (collecting cases in which termination of parental rights was affirmed because a parent admitted the child or children could not be returned to the parent's care at the time of the termination hearing).

         In any event, the juvenile court found,

In the two years since [the child's] original placement in foster family care, [the father] and [the mother] have continued to cycle through the same patterns of behavior. They have each had periods of stability and consistency and they have each had periods of regression evidenced by use of substances, criminal charges and extended periods in jail, and unhealthy adult relationships evidenced by ongoing criminal charges and police contact for [the father], [the mother] and [the father's girlfriend]. . . . [The father] has never progressed to a trial home placement, he has progressed to unsupervised visitation, only to move back to fully supervised visitation due to his use of substances and ongoing concerns regarding domestic violence. An extension of time to achieve reunification was granted by the court in May of 2016 and in the months that have passed since that extension was granted, neither parent has demonstrated any sustained period of sobriety or stability. Chaos and conflict in their ...

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