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In re A.K.

Court of Appeals of Iowa

April 3, 2019

IN THE INTEREST OF A.K. and P.K., Minor Children, R.K., Father, Appellant.

          Appeal from the Iowa District Court for Cherokee County, Mary L. Timko, Associate Juvenile Judge.

         A father appeals the termination of his parental rights.

          Dean A. Fankhauser of Fankhauser Rachel, PLC, Sioux City, for appellant father.

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

          Lesley Rynell of Juvenile Law Center, Sioux City, guardian ad litem for minor children.

          Considered by Doyle, P.J., Mullins, J., and Danilson, S.J. [*]

          MULLINS, JUDGE.

         A father appeals the termination of his parental rights. He challenges the sufficiency of the evidence supporting the grounds for termination, asserts termination is not in the children's best interest, and requests the application of a statutory exception to termination. The father also argues the State failed to make reasonable efforts to reunify him with the children.

         All issues on appeal were decided following a combined permanency and termination-of-parental-rights hearing. The hearing was held over three days, ending December 11, 2018, as reflected in the termination order. The record only contains transcripts for the proceedings on November 28 and December 11.[1] Iowa Rule of Appellate Procedure 6.803(1) requires that "[i]f the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to such finding or conclusion." "It is the appellant's duty to provide a record on appeal affirmatively disclosing the alleged error relied upon," and "[t]he court may not speculate as to what took place or predicate error on such speculation." In re F.W.S., 698 N.W.2d 134, 135 (Iowa 2005). There is authority that would support us refusing to exercise our appellate review of this case. See, e.g., id. at 135-36; In re I.M., No. 13-0821, 2014 WL 4225169, at *2 (Iowa Ct. App. Aug. 27, 2014). Having examined the record and the issues raised on appeal, we choose to decide this appeal based on the available record.

         I. Background Facts and Proceedings

         R.K., the father, and K.A., the mother, are the parents of A.K., born in 2012, and P.K., born in 2014. The family came to the attention of the Iowa Department of Human Services (DHS) in February 2017 after reports of illegal drug use by the parents and domestic abuse. The father reportedly used methamphetamine while caring for the children and hit the mother while the children were present. Further, the mother was aware of the father's drug use and allowed the father to drive the children while actively under the influence of methamphetamine. Both parents admitted using methamphetamine, and the father tested positive for both methamphetamine and amphetamines. Further, A.K.'s hair-stat test resulted in positive results for amphetamines and methamphetamine. After its investigation, DHS returned founded child-abuse assessments against both parents for denial of critical care.

         The children remained in the parents' care, and in-home services were provided. Both parents participated in substance-abuse evaluations, which resulted in the recommendation of intensive outpatient services for the father and mental-health counseling for the mother. The father did begin attending services several times per week but blamed the mother for DHS's involvement in their lives. Further, he repeatedly claimed that he had been sober since October 2016 despite his positive test for methamphetamine.

         The juvenile court adjudicated the children in need of assistance (CINA) in May. In August, during the week prior to the dispositional hearing, the mother took the children out of the home and disappeared. She returned with the children on the date of the hearing. Prior to the commencement of the hearing, the mother was given a drug test. She tested positive for methamphetamine. Safety planning required DHS to remove the children from her care and for the mother to leave the home. The children remained with the father. Following the hearing, the father took two drug tests. The first was deemed invalid for being diluted. After participating in a hair-stat test, the father admitted the test would reflect his use of methamphetamine, specifically following the dispositional hearing. He also reported that the mother had been using methamphetamine the entire time of DHS's involvement and that he had covered for her. The mother subsequently left the county to live with her relatives due to reported domestic violence.

         Based upon the father's admission of drug use, the juvenile court granted an emergency removal of the children. The mother returned to the family home after her drug test was determined to be a false positive, but the children remained outside of the home. The juvenile court considered the date of removal of the children from both parents' care to be August 31. The juvenile court transferred custody of ...

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