IN THE INTEREST OF M.M., Minor Child, A.M., Father, Appellant.
from the Iowa District Court for Linn County, Susan F.
Flaherty, Associate Juvenile Judge.
father appeals the termination of his parental rights.
Annette F. Martin, Cedar Rapids, for appellant father.
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.
father appeals the termination of his parental rights to his
child, M.M.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.
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.
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?
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).
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 ...