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In re J.M.

Court of Appeals of Iowa

April 4, 2018

IN THE INTEREST OF J.M., A.M., M.M., and A.M., Minor Children, D.M., Father, Appellant.

          Appeal from the Iowa District Court for Marion County, Steven W. Guiter, District Associate Judge.

         Father appeals from an order terminating his parental rights pursuant to Iowa Code chapter 232 (2017).

          Blake D. Lubinus of Lubinus Law Firm, PLLC, Des Moines, for appellant father.

          Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant Attorney General, for appellee State.

          William E. Sales III of Sales Law Firm, P.C., Des Moines, guardian ad litem for minor children.

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

          MCDONALD, Judge.

         Derik appeals from an order terminating his parental rights in his four children, J.M. (born 2012), M.M. (born 2014), A.M. (born 2015), and A.M. (born 2016), pursuant to Iowa Code section 232.116(1)(f) and (h) (2017). On appeal, he contends the State failed to prove the statutory grounds authorizing the termination of his parental rights, the district court should have granted him six months' additional time to reunify with the children, and the strength of the parent-child bond warrants preservation of the parent-child relationship.

         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).

         We first address the sufficiency of the evidence supporting the statutory grounds authorizing the termination of Derik's parental rights. At issue here is only the fourth element of section 232.116(1)(f) and (h). To authorize the termination of a parent's rights pursuant to these provisions, we have required the State to prove by "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).

         On de novo review, we conclude the State proved the children could not be returned to Derik's care at the time of the termination hearing. The family first came to the attention of the Iowa Department of Human Services (IDHS) in 2014 when M.M. was born and tested positive for oxycodone. The family was offered services in response. The family again came to the attention of IDHS when the youngest child was born and the cord blood tested positive for unprescribed oxycodone. The mother admitted to use of unprescribed opioids. She was unsure what controlled substances Derik was abusing, but she knew he had abused Vicodin. Upon inquiry, maternal relatives expressed concerns to IDHS regarding the parents' abuse of controlled substances. After the parents evaded IDHS on multiple occasions and failed to appear for drug tests, IDHS removed the children from the home in October 2016.

         At the time of the termination hearing Derik had an outstanding warrant and was to be immediately transported to jail. Derik's status prevented the children from being returned to his care and satisfies Iowa Code section 232.116(1)(f) and (h). See In re A.P., No. 17-1830, 2018 WL 540985, at *3 (Iowa Ct. App. Jan. 24, 2018) (finding incarceration at the time of the termination hearing satisfies the requirements of section 232.116(1)(f) and (h)); In re D.S., No. 16-1149, 2016 WL 5408175, at *1 (Iowa Ct. App. Sept. 28, 2016) (finding sufficient grounds for termination where "The father admitted at the combined permanency review and termination-of-parental-rights hearing that he could not care for his child at that time due to his incarceration").

         The State also proved the children would be exposed to an appreciable risk of adjudicatory harm if returned to Derik's care due to Derik's untreated substance-abuse addiction. Derik admitted he was an opioid addict. By his own account, Derik attempted to complete substance-abuse treatment on five separate occasions while this case was pending. On two occasions, he was unsuccessfully discharged from treatment. On two occasions, IDHS contacted the treatment provider and learned Derik was not enrolled in any treatment program and Derik had misrepresented his treatment status to the department. In July 2017, Derik did actually enroll for substance-abuse treatment, but his counselor reported Derik's attendance was sporadic. Untreated substance abuse can create an appreciable risk of adjudicatory harm to the children where, as here, there is evidence establishing the children have already been exposed to the drug. See, e.g., In re A.B., 815 N.W.2d 764, 776 (Iowa 2012) (noting drug addiction can render a parent unable to care for children); In re L.S., No. 17-1824, 2018 WL 540968, at *1 (Iowa Ct. App. Jan. 24, 2018) (providing untreated substance abuse can create a risk of harm to the children); 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); In re H.L., No. 14-0708, 2014 WL 3513262, at *3 (Iowa Ct. App. July 16, 2014) (affirming termination of parental rights when parent had history of substance abuse).

         In addition, the State established Derik would not be able to meet the basic needs of the children if returned to his care. Over his lifetime, Derik has demonstrated an inability to maintain employment and obtain stable housing. At the time of the termination hearing, Derik was living with his mother. The inability to meet the basic needs of the children supports the termination of Derik's parental rights. See In re E.R., No. 14-1816, 2015 WL 162177, at *3 (Iowa Ct. App. Jan. 14, 2015) (discussing mother's financial instability and inability to meet the child's basic needs as one basis for termination); In re J.A., No. 13-0735, 2013 WL 4012434, at *2 (Iowa Ct. App. ...


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