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In re B.C.

Court of Appeals of Iowa

September 12, 2018

IN THE INTEREST OF B.C., Minor Child, S.C., Appellant.

          Appeal from the Iowa District Court for Decatur County, Monty W. Franklin, District Associate Judge.

         The father appeals from the termination of his parental rights.

          Adam E. Kehrwald of Kehrwald Law Firm, Des Moines, for appellant father.

          Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant Attorney General, for appellee State.

          Shireen L. Carter of Shireen Carter Law Office, PLC, Norwalk, guardian ad litem for minor child.

          Considered by Danilson, C.J., and Vogel and Tabor, JJ.

          DANILSON, CHIEF JUDGE.

         The father appeals the termination of his parental rights to B.C., born in 2011.[1] The juvenile court terminated the father's parental rights pursuant to Iowa Code section 232.116(1)(e) and (f) (2018). It also found termination was in the child's best interests. When the juvenile court finds more than one ground for termination under section 232.116(1), "we may affirm . . . on any ground we find supported by the record." In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). Upon our de novo review, see In re A.S., 906 N.W.2d 467, 472 (Iowa 2018), we find clear and convincing evidence supports termination under section 232.116(1)(f). We, therefore, affirm.

         We first note the child was involved with juvenile court child-in-need-of-assistance (CINA) proceedings before, from August 2013 to December 2014, as a result of parental substance abuse and safety concerns resulting from inadequate parental supervision. That case was closed, and the child was placed in his father's custody.

         The child came to the attention of the department of human services (DHS) again in February 2016 when law enforcement executed a search warrant at the father's residence where B.C. and his fifteen-year-old brother resided with the father. The children did not know where the father was or how to contact him. During the search, law enforcement found methamphetamine, marijuana, drug paraphernalia (pipes and needles), and homemade alcohol, along with numerous items of stolen property in the home. A founded child protective assessment was made for denial of critical care, failure to provide proper supervision, with the father as the responsible party.

         A CINA petition was filed and, initially, B.C. was allowed to remain in the father's physical custody. The father was to cooperate with services, including substance-abuse and mental-health evaluations and treatment services; parent-skill development; Family Safety, Risk, and Permanency (FSRP) services; drug testing; and case management services. However, on November 4, 2016, the father was arrested and incarcerated for additional criminal charges. The child lived with two different relatives before being placed with a foster family on April 24, 2017, where he remained throughout the termination proceedings.

         Under section 232.116(1)(f), the court may terminate parental rights if a child four years or older has been adjudicated a CINA, has been removed from the physical custody of the parent for at least twelve of the last eighteen months or the last twelve consecutive months, and cannot be returned to the parent's custody at the present time. There is no question the child is older than four years of age, was adjudicated a CINA on June 21, 2016, and has been removed from the father's custody for more than twelve consecutive months. The father argues, however, he can care for his child at present because he has graduated from the Salvation Army program, is living with his parents, and can obtain employment in the near future.

         We agree with the trial court that the child cannot be returned to the father at present without risk of adjudicatory harm. We adopt the following findings and conclusions of the court:

[The father] sporadically participated in outpatient substance abuse treatment and did provide negative samples for two drug tests. A drug test on February 17, 2017, was not valid as the temperature of the urine sample was "off" and when required to retest on February 24, 2017, [the father] was unable to provide a urine sample for testing. At his sentencing proceeding held on April 14, 2017, when [the father] was sent to prison, [the father] admitted that he would likely test positive for both marijuana and methamphetamines if he were to be tested on that day. Following his release from prison in August of 2017, [the father] attended a few sessions of substance abuse treatment until he was arrested on additional new charges in October 2017. During this time period he did not test positive for controlled substances but did test positive for using alcohol. Since November 6, 2017, until recently, [the father] has been residing in a community-based correctional residential program at the Salvation Army Rehabilitation ...

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