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In re T.G.

Court of Appeals of Iowa

January 9, 2019

IN THE INTEREST OF T.G., Minor Child, A.G., Father, Appellant, A.M., Mother, Appellant.

          Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.

         A mother and father appeal the termination of their respective parental rights in their child.

          Zachary C. Priebe of Jeff Carter Law Offices, PC, Des Moines, for appellant father.

          Magdalena Reese of Cooper, Goedicke, Reimer & Reese, P.C., West Des Moines, for appellant mother.

          Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney General, for appellee State.

          Nicole Garbis Nolan of Youth Law Center, Des Moines, guardian ad litem for minor child.

          Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.

          McDONALD, JUDGE.

         Alan and Alexandra each appeal from an order terminating their parental rights in their child T.B. (age 2). The juvenile court terminated Alan's parental rights pursuant to Iowa Code section 232.116(1)(b), (e), and (h) (2018) and Alexandra's parental rights pursuant to section 232.116(1)(h). On appeal, Alan challenges the sufficiency of the evidence supporting termination of his parental rights under section 232.116(b) and (e), and Alexandra challenges the sufficiency of the evidence supporting termination of her parental rights pursuant to section 232.116(1)(h). Both parents argue termination of their parental rights is not in T.B.'s best interest. Finally, Alexandra argues her close bond with T.B. should preclude termination.

         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. 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).

         We first address Alan and Alexandra's challenges to the sufficiency of the evidence supporting the statutory grounds authorizing termination of their respective parental rights. With respect to Alan, he challenges the sufficiency of the evidence supporting termination under Iowa Code section 232.116(1)(b) and (e) but does not challenge the sufficiency of the evidence supporting termination pursuant to section 232.116(1)(h). Alan's failure to challenge the evidence supporting termination under section 232.116(1)(h) constitutes waiver of the issue. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010); In re K.R., No. 18-0546, 2018 WL 3302207, at *1 (Iowa Ct. App. July 5, 2018); In re M.K., No. 14-0676, 2014 WL 2885366, at *2 (Iowa Ct. App. June 25, 2014). "When 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). There is clear and convincing evidence supporting termination of Alan's parental rights pursuant to section 232.116(1)(h). Because there is sufficient evidence supporting termination pursuant to section 232.116(1)(h), we do not address Alan's challenges to the sufficiency of evidence under paragraphs (b) and (e).

         With respect to Alexandra, she contends there is insufficient evidence authorizing termination of her parental rights pursuant to section 232.116(1)(h). She limits her challenge to the fourth element of paragraph (h). That element "require[s] 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." E.H., 2017 WL 2684420, at *1.

         On de novo review, we conclude there is clear and convincing evidence supporting termination of Alexandra's rights pursuant to section 232.116(1)(h). First, Alexandra's ongoing substance abuse impairs her ability to provide adequate care for T.G. When the child was born, the cord blood tested positive for marijuana. While the case was pending, the child was subjected to a hair stat test, which was positive for amphetamine and methamphetamine. Reports showed the parents used drugs in the child's presence. While Alexandra successfully completed substance-abuse treatment in July 2017, she failed to maintain sobriety. She relapsed and tested positive for methamphetamine as recently as March 2018. Although she received an updated substance-abuse evaluation following her relapse, Alexandra failed to comply with its recommendation for outpatient substance-abuse therapy. At the termination hearing, Alexandra conceded she intended to continue her drug use despite knowing her substance abuse was not in T.G.'s best interest. Alexandra's continued substance abuse creates an appreciable risk of harm to T.G. See In re A.Z., No. 18-1420, 2018 WL 4909831, at *2 (Iowa Ct. App. Oct. 10, 2018) (finding children could not be returned to the mother when she did not address her substance-abuse and mental-health issues); In re A.W., No. 18-0094, 2018 WL 1182618, at *1 (Iowa Ct. App. Mar. 7, 2018) (finding mother's failure to address substance-abuse issues supported termination of her parental rights); In re C.E., No. 15-0835, 2015 WL 5578395, at *1 (Iowa Ct. App. Sept. 23, 2015) (collecting cases finding children could not be returned to parents with unresolved substance-abuse issues).

         Second, in addition to her unresolved substance abuse, Alexandra continues to interact with Alan despite directives to cease contact. At the time of termination, there was an active no-contact order between Alan and Alexandra due to Alan's criminal conviction for domestic abuse assault of Alexandra. Alexandra's continued contact with Alan creates an appreciable risk of harm to T.G. See In re A.S., No. 17-1810, 2018 WL 542646, at *1 (Iowa Ct. App. Jan. ...


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