IN THE INTEREST OF L.B., B.B., J.A., and A.E., Minor Children, A.E., Mother, Appellant, A.B., Father, Appellant.
from the Iowa District Court for Plymouth County, Robert J.
Dull, District Associate Judge.
and father appeal from an order terminating their rights in
their children pursuant to Iowa Code chapter 232 (2018).
AFFIRMED ON BOTH APPEALS.
Bauerly Langel of Trotzig & Bauerly, PLC, Le Mars, for
appellant mother. Robert B. Brock II of Law Office of Robert
B. Brock II, P.C., Le Mars, for appellant father.
J. Miller, Attorney General, and John B. McCormally,
Assistant Attorney General, for appellee State.
Thali of Juvenile Law Center, Sioux City, guardian ad litem
for minor children.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
case arises out of a chapter 232 proceeding to terminate the
parental rights of Alicia and Andrew. Alicia is the mother of
J.A., A.E., L.B., and B.B. Andrew is the father of L.B. and
B.B. The juvenile court terminated Alicia's rights in her
children pursuant to Iowa Code section 232.116(1)(f) (2018).
The juvenile court terminated Andrew's parental rights in
his children pursuant to Iowa Code section 232.116(1)(f) and
(l). The juvenile court also terminated the parental
rights of the fathers of J.A. and A.E. Those fathers do not
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. See In re A.S.,
906 N.W.2d 467, 472-73 (Iowa 2018) (setting forth the
statutory framework). The burden is on the State to prove by
clear and convincing evidence (1) the statutory ground or
grounds authorizing the termination of parental rights and
(2) termination of parental rights is in the best interest of
the child. See In re E.H., No. 17-0615, 2017 WL
2684420, at *1 (Iowa Ct. App. June 21, 2017). Even where the
State proves its case, the juvenile court has the discretion
to preserve the parent-child relationship where the parent
proves by clear and convincing evidence a statutory factor
allowing preservation of the parent-child relationship.
See Iowa Code § 232.116(3) (setting forth
permissive factors to avoid the termination of parental
rights); In re AS., 906 N.W.2d at 476 (stating it is
the parent's burden to prove an exception to
first address the sufficiency of the evidence supporting the
termination of Alicia and Andrew's parental rights. Where
"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." In re A.B., 815 N.W.2d 764, 774 (Iowa
2012). We focus our attention on the statutory ground set
forth in section 232.116(1)(f). As relevant here, this
provision requires "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., 2017 WL 2684420, at *1. In assessing the
sufficiency of the evidence regarding the best interest of
the children, we "give primary consideration to the
children's safety, to the best placement for furthering
the long-term nurturing and growth of the children, and to
the physical, mental, and emotional condition and needs of
the children." In re P.L., 778 N.W.2d 33, 39
(Iowa 2010) (quoting Iowa Code § 232.116(2)) (altered
novo review, we conclude the State proved by clear and
convincing evidence this statutory ground authorizing the
termination of Alicia's rights and termination of
Alicia's rights is in the best interest of the children.
Alicia has a long history of involvement with the Iowa
Department of Human Services (IDHS) due to her substance
abuse, among other things. Most recently, IDHS became
involved with this family in December 2014. Since that time,
Alicia has continued to use controlled substances, including
methamphetamine, and has not demonstrated the ability to
maintain sobriety for any appreciable time outside a
custodial setting. Her continued use of methamphetamine
creates an appreciable risk of adjudicatory harm to the
children and supports the termination of her 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 K.C., No. 18-0581, 2018 WL 3057888,
at *2 (Iowa Ct. App. June 20, 2018) (affirming termination
where mother had long history of substance abuse); 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 B.C.,
No. 17-0933, 2017 WL 4050975, at *1 (Iowa Ct. App. Sept. 13,
2017) (affirming termination where mother had history of drug
abuse and limited success with treatment and other services);
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 K.F., No. 14-0892, 2014 WL 4635463, at *3 (Iowa Ct.
App. Sept. 17, 2014) (finding termination appropriate, where,
as here, "[a]lthough [the mother] has been involved with
services concerning her children at least three times, she
does not obtain any lasting benefit from those
services"); 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, Alicia has a history of
unstable employment and housing and was essentially homeless
at the time of the termination hearing. Alicia's economic
instability and concomitant inability to meet the most basic
needs of her children create an appreciable risk of harm to
the children and supports the termination of her parental
rights. See, e.g., In re J.M., No. 18-0163, 2018 WL
1631391, at *2 (Iowa Ct. App. Apr. 4, 2018) (affirming
termination where father was unable to meet the basic needs
of the children due to "inability to maintain employment
and obtain stable housing"); In re DM., No.
18-0086, 2018 WL 1433104, at *2 (Iowa Ct. App. Mar. 21, 2018)
(holding financial instability and homelessness showed mother
would not be able to provide care for the children without
creating an appreciable risk of adjudicatory harm); In re
J.C., No. 17-0750, 2017 WL 3283395, at *3 (Iowa Ct. App.
Aug. 2, 2017) (affirming termination of parental rights where
mother was unemployed and essentially homeless); 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. Aug. 7, 2013) (noting
mother's financial instability as significant factor in
termination); In re K.K., No. 02-0350, 2002 WL
987376, at *1 (Iowa Ct. App. May 15, 2002) (same); In re
K.H., No. 03-0671, 2003 WL 21459582, at *2 (Iowa Ct.
App. June 25, 2003) (concluding the children would be at a
continued risk for harm when the father did not have stable
employment or housing).
novo review, we also conclude the State proved by clear and
convincing evidence the statutory ground authorizing the
termination of Andrew's parental rights and termination
of his rights is in the best interest of his children. Like
Alicia, Andrew has a long history of substance abuse that
precluded him from providing adequate care for the children.
In addition, Andrew has a long history of criminal behavior
resulting in his incarceration. Andrew was incarcerated for
most of this case and remained incarcerated at the time of
the termination hearing. Andrew's long history of
substance abuse, criminal behavior, and incarceration
precludes the return of the children to his care and supports
the termination of his parental rights. See, e.g.,
In re J.M., 2018 WL 1631391 at *1 (affirming
termination pursuant to section 232.116(1)(f) and (h) where
father was incarcerated at the time of the termination
hearing); 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 "[t]he 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
contends this court should exercise its discretion and not
terminate her parental rights due to the strength of the bond
between her and her children. Section 232.116(3)(c) provides
the court may avoid termination if "there is clear and
convincing evidence that the termination would be detrimental
to the child at the time due to the closeness of the
parent-child relationship." The existence of a bond
between the mother and the children is a factor that can
weigh against termination, but the court may use its
discretion in deciding whether to apply the factor to
continue the parent-child relationship. See In re
A.M., 843 N.W.2d at 113. In exercising the discretion to
preserve the relationship, our consideration is not merely
whether there is a bond, "our consideration must center
on whether the child[ren] will be disadvantaged by
termination, and whether the disadvantage overcomes"
Alicia's inability to provide for the needs of the
children. See In re D.W., 791 N.W.2d at 709; see
also Iowa Code § 232.116(2) (setting forth the
factors in determining the child's best interests).
decline to preserve the parent-child relationship pursuant to
section 232.116(3)(c). The record reflects Alicia has a bond
with her children. There is not clear and convincing
evidence, however, any disadvantage caused by termination of
her parental rights is more significant than the benefit to
the children. To this point in time, Alicia's life is a
story of substance abuse and instability punctuated by brief
interludes of compelled sobriety. What is past is prologue.
See In re J.E.,723 N.W.2d 793, 798 (Iowa 2006)
(noting a parent's past performance is indicative of the
quality of care the parent may provide going forward); In
re N.F.,579 N.W.2d 338, 341 (Iowa Ct. App. 1998)
("[I]n considering the impact of drug addiction, we must
consider the treatment history of the parent to gauge the
likelihood that the parent will be in a position to parent
the child in the foreseeable future. Where the parent has
been unable to rise above the addiction and experience
sustained sobriety in a noncustodial setting, and establish
the essential support system to maintain sobriety, there is
little hope of ...