IN THE INTEREST OF M.R. and K.R., Minor Children, C.R., Father, Appellant.
from the Iowa District Court for Polk County, Rachael E.
Seymour, District Associate Judge.
father appeals from an order terminating his parental rights
pursuant to Iowa Code chapter 232 (2017).
L. Knight of Carr & Wright, P.L.C., Des Moines, for
J. Miller, Attorney General, and John B. McCormally,
Assistant Attorney General, for appellee State.
Garbis Nolan of Youth Law Center, Des Moines, guardian ad
litem for minor children.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
appeals from an order terminating his parental rights in his
two children, K.R. (born 2016) and M.R. (born 2017). This
court reviews termination proceedings de novo. See In re
A.M., 843 N.W.2d 100, 110 (Iowa 2014). The statutory
framework authorizing the termination of a parent-child
relationship is well established and need not be repeated
herein. See In re P.L., 778 N.W.2d 33, 39 (Iowa
2010) (setting forth the statutory framework).
appeal, Casey contends there was insufficient evidence
supporting the statutory grounds authorizing termination of
his parental rights. The juvenile court terminated
Casey's parental rights pursuant to Iowa Code section
232.116(1)(e) and (h) (2017). We focus our analysis on ground
(h). See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012)
(noting if "the juvenile court terminates parental
rights on more than one statutory ground, we may affirm the
juvenile court's order on any ground we find supported by
the record"). Under this provision, as relevant here,
the State was required to prove by "clear and convincing
evidence that at the present time the child cannot be
returned to the custody of the child's parents as
provided in section 232.102." Iowa Code §
232.116(1)(h)(4). We have interpreted this to require
"clear and convincing evidence the children would be
exposed to an appreciable risk of adjudicatory harm if
returned to the parent's custody at the time of the
termination hearing." In re E.H., No. 17-0615,
2017 WL 2684420, at *1 (Iowa Ct. App. June 21, 2017).
our de novo review, we find the State proved its case by
clear and convincing evidence. In May 2016, K.R. was removed
from the parents' care after the mother's parole was
revoked when she tested positive for controlled substances.
Casey consented to removal of the child. M.R. was born in
2017, and she was also removed from the parents' care.
Since the time of M.R.'s removal from the care of the
family, Casey failed to progress. He continued to use drugs,
including methamphetamine. He was incarcerated on multiple
occasions and absconded on another occasion. Because he was
avoiding law enforcement, Casey failed to exercise visitation
with the children. Casey was most recently arrested May 4,
2017, and charged with new drug offenses. By the time of the
termination hearing, he had been convicted of possession of a
controlled substance and driving while barred. The district
court took judicial notice of Casey's criminal
proceedings, however it failed to make a record and identify
with particularity the specific documents of which it took
notice. See In re Adkins, 298 N.W.2d 273, 278 (Iowa
1980) (reminding district court that "[t]rial
court's ruling in the termination proceeding should state
and describe what it is the court is judicially
noticing"). Nonetheless, we know from the trial
testimony Casey was incarcerated at the time of the
termination hearing awaiting placement in a residential
treatment facility. He conceded he was not in the position to
take care of either child. This is sufficient evidence to
authorize the termination of Casey's parental rights.
See, e.g., In re A.B., 815 N.W.2d at 776 (noting
drug addiction can render a parent unable to care for
children); In re W.J., No. 17-0991, 2017 WL 3525340,
at *1 (Iowa Ct. App. Aug. 16, 2017) (affirming termination
where, among other things, parent continued with
"criminal behavior"); In re E.N., No.
16-2135, 2017 WL 514405, at *2 (Iowa Ct. App. Feb. 8, 2017)
(affirming termination where mother continued "to engage
in criminal behavior"); In re R.P., No.
16-1154, 2016 WL 4544426, at *2 (Iowa Ct. App. Aug. 31, 2016)
(affirming termination of parental rights of parent with
history of drug abuse).
decline Casey's request to defer permanency for an
additional six months. To grant such a request we must be
able to articulate factors that illustrate why the need for
removal will no longer exist at the end of the six-month
extension. See Iowa Code § 232.104(2)(b). The
juvenile court already granted one such request to Casey, but
Casey did not avail himself of the opportunity to address the
behaviors giving rise to removal. Instead, his conduct
worsened. Casey's past conduct is the best indicator of
his future conduct. There is no reason to believe the need
for removal will no longer exist if Casey is granted a second
six-month extension. Indeed, he agreed at the termination
hearing that the children could not be placed with him in the
next six months. There is no need to address this argument
argues termination was not in the best interest of the
children. As a general rule, "'the needs of
[children] are promoted by termination of parental
rights' if the grounds for termination of parental rights
exist." In re L.M.F., 490 N.W.2d 66, 68 (Iowa
Ct. App. 1992) (citation omitted). Further, "[i]nsight
for the determination of the child's long-range best
interests can be gleaned from evidence of the parent's
past performance for that performance may be indicative of
the quality of the future care that parent is capable of
providing." In re A.B., 815 N.W.2d at 778.
Based on his past performance, there is no indication Casey
could provide for the needs of the children going forward. He
has unresolved domestic-violence and substance-abuse issues.
He has not demonstrated sobriety outside a custodial setting.
He has not demonstrated the capacity to provide for the
physical, social, or emotional needs of the children. Casey
has not exercised visitation with the children in over six
months. There is no evidence that maintenance of the
parent-child relationship is in the best interest of the
argues this court should exercise its discretion and preserve
the parent-child relationship on the ground that placing the
children with their grandparents in a guardianship makes
termination unnecessary. Placement of a child with a relative
under a permanency order is not a legally preferable
alternative to termination of parental rights. See In re
A.S., ___ N.W.2d ___, ___, 2018 WL 480373, at *9 (Iowa
2018); In re N.M., No. 17-0054, 2017 WL 1088119, at
*3 (Iowa Ct. App. Mar. 22, 2017); In re L.M.F., 490
N.W.2d at 67-68. "An appropriate determination to
terminate a parent-child relationship is not to be
countermanded by the ability and willingness of a family
relative to take the child." In re C.K., 558
N.W.2d 170, 174 (Iowa 1997). On the record presented, we find
no reason to preserve the parent-child relationship and risk
disruption to the children's stable home with their
to the argument in the preceding paragraph, Casey appears to
argue there is a procedural due process "obligation to
seek a less restrictive solution than termination of parental
rights." He relies on the procedural-due-process
framework set forth in Mathews v. Eldridge, 424 U.S.
319, 335 (1976). Our courts have not adopted this rule with
respect to a claim of procedural due process, and we decline
to do so. In our view, this approach confuses the right to
due process with a right to a favorable substantive result.
See In re K.M.,653 N.W.2d 602, 607 (Iowa 2002)
(rejecting procedural-due-process challenge to substantive
provision and stating, "the parents in this case are
clearly entitled to procedural due process: notice and a
meaningful opportunity to be heard"). Casey received the
process due ...