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In re Q.N.

Court of Appeals of Iowa

October 9, 2019

IN THE INTEREST OF Q.N., Minor Child, B.K., Mother, Appellant, J.N., Father, Appellant.

          Appeal from the Iowa District Court for Marion County, Steven Guiter, District Associate Judge.

         Parents separately appeal the termination of their parental rights.

          Bryan J. Tingle, Des Moines, for appellant mother.

          Terzo R. Steves, Des Moines, for appellant father.

          Thomas J. Miller, Attorney General, and Anna T. Stoeffler (until withdrawal) and Mary A. Triick, Assistant Attorneys General, for appellee State.

          William E. Sales III of Sales Law Firm, P.C., Des Moines, attorney and guardian ad litem for minor child.

          Considered by Potterfield, P.J., Greer, J., and Scott, S.J. [*]

          SCOTT, SENIOR JUDGE.

         The child came to the attention of the Iowa Department of Human Services (DHS) in early May 2018 when the child tested positive for methamphetamine and amphetamines at birth. The mother has a long history of substance abuse, criminal activity, and founded child-abuse assessments as to her other two children, who are not in her care.[1] The mother refused to cooperate with DHS. On May 4, the juvenile court entered an order removing the child from the parents' care and placing him in the legal custody of DHS.[2] The child was placed with his paternal grandmother a week later but was placed with his paternal aunt and uncle in July because the grandmother could no longer care for the child.[3] The child was adjudicated a child in need of assistance.

         The mother completed substance-abuse treatment in June but tested positive for methamphetamine and amphetamines in July. The father tested negative for drugs in July, but his continuing sobriety could not be verified because he largely evaded or obstructed drug testing thereafter. The mother again tested positive for the substances on two occasions in August and a third occasion in September. The mother agreed to engage in substance-abuse treatment. She again tested positive for illegal substances upon her entry into treatment in October. The mother provided clean drug tests while in treatment. She was released from treatment at the end of November.

         The mother participated in aftercare and continued to provide negative urinalysis screens. However, it was reported the mother was cleansing her system prior to her aftercare appointments. In February 2019, the mother tested positive for methamphetamine; the father tested positive for methamphetamine and amphetamines. The mother discontinued attending her aftercare appointments thereafter. The father declined to undergo a substance-abuse evaluation and refused further drug testing. DHS requested the mother to return to treatment; she responded "What's the point?" The mother admitted in her testimony at the termination hearing that she used methamphetamine again in March.

         In April, the State petitioned for termination of both parents' parental rights. Following a termination hearing in June, the juvenile court terminated the parental rights of both parents under Iowa Code section 232.116(1)(h) (2019). Both parents appeal. They each challenge the sufficiency of the evidence supporting the statutory ground for termination cited by the juvenile court, argue termination is not in the best interests of the child due to the closeness of the parent-child bonds, maintain the court should have applied the statutory exception to termination contained in Iowa Code section 232.116(3)(a) and (c), and request a six-month extension to work toward reunification.

         Our review is de novo. In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our primary consideration is the best interests of the child, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the defining elements of which are the child's safety and need for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).

         As to the statutory ground for termination cited by the juvenile court, the parents only appear to challenge the State's establishment of the final element- that the children could not be returned to their care at the time of the termination hearing. See Iowa Code § 232.116(1)(h)(4) (requiring clear and convincing evidence that the child cannot be returned to the custody of the child's parents at the present time); In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the statutory language "at the present time" to mean "at the time of the termination hearing"). The mother unequivocally testified at the termination hearing the child could not be returned to her care at that time. The evidence is clear and convincing that both parents have unresolved substance-abuse issues and neither is willing to commit to treatment to alleviate the same. A de novo review of the record discloses that returning the child to the parents' care at the present would expose the child to a risk of adjudicatory harm. See In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct. App. 1995) (noting children cannot be ...


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