IN THE INTEREST OF J.M., A.M., M.M., and A.M., Minor Children, D.M., Father, Appellant.
from the Iowa District Court for Marion County, Steven W.
Guiter, District Associate Judge.
appeals from an order terminating his parental rights
pursuant to Iowa Code chapter 232 (2017).
D. Lubinus of Lubinus Law Firm, PLLC, Des Moines, for
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.
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.
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).
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).
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.
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
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).
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.