Opinion
23-2038
03-27-2024
IN THE INTEREST OF L.H. AND L.H., Minor Children, J.H., Father, Appellant.
Daniel J. McGinn of McGinn, Springer &Noethe, P.L.C., Council Bluffs, for appellant father. Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney General, for appellee state. Maura C. Goaley, Council Bluffs, attorney and guardian ad litem for minor children.
Appeal from the Iowa District Court for Pottawattamie County, Donna Bothwell, Judge.
A father appeals the termination of his parental rights. AFFIRMED.
Daniel J. McGinn of McGinn, Springer &Noethe, P.L.C., Council Bluffs, for appellant father.
Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney General, for appellee state.
Maura C. Goaley, Council Bluffs, attorney and guardian ad litem for minor children.
Considered by Tabor, P.J., and Badding and Buller, JJ.
BADDING, JUDGE.
At the hearing to terminate his parental rights, the father of twin boys, born in 2014, insisted: "I have not used drugs." He made this denial despite the many missed or positive drug screens during the nineteen months the children were removed from his care. The juvenile court terminated the father's rights under Iowa Code section 232.116(1)(e), (f), and (l) (2023). He appeals, challenging the first two steps of our termination framework, arguing the court should have established a guardianship, and requesting more time for reunification. We affirm.
I. Background Facts and Proceedings
These children have had a sad start to their lives and a revolving door of removals. Their mother passed away in 2015, leaving them in their father's care. Less than one year later, in May 2016, the children were removed from the father's custody because of his methamphetamine use. The children were placed back in his custody six months later, only to be removed again in 2018-once more because the father was using methamphetamine. That juvenile court case closed after five months by placing the children in their paternal aunt's guardianship. When the guardianship was established, the father was serving a prison sentence in Nebraska for shoplifting. The guardianship was dissolved in 2019 upon the father's motion and the aunt's consent. The revolving door opened again in February 2022.
That month, a concerned citizen called law enforcement to report that the children were left unattended in the father's vehicle at a store. Officers found the father nearby. He had active warrants for his arrest in three counties for shoplifting. Before being taken to jail, the father asked one of the officers to get his phone from the vehicle so that he could make plans for the children. While doing so, the officer found a clear glass pipe with white residue near the center console. The father was taken to jail, and the State obtained an order for temporary removal. The children were placed back with their aunt, and child-in-need-of-assistance petitions were filed for the third time in these children's young lives.
Roughly a week after removal, law enforcement searched the father's home with his permission. The night before the search, the father called his girlfriend and told her, "Make sure my house is clean. You know what I mean.... Everything of mine you can trash. You know what I mean by that." His girlfriend didn't get the cleaning done, and law enforcement found methamphetamine and drug paraphernalia in the father's bedroom, which the children had access to. Even though the father denied recent use, he tested positive for methamphetamine and amphetamines in early March. And his girlfriend told the child protective worker from the Iowa Department of Health and Human Services that she and the father smoked methamphetamine almost daily. The father was released from jail in April, and the children were adjudicated in need of assistance later that month.
The father obtained a substance-use evaluation in early May that recommended extended outpatient treatment. He participated in treatment and submitted to urinalysis testing through his treatment provider. All twelve of his urine tests from late May to mid-September were negative for drugs. But these tests were not observed. And, during the same period, the father consistently tested positive for methamphetamine on sweat-patch testing through the department. He also occasionally tested positive for amphetamines and cocaine and did not appear for testing several times. In a September email to the department's caseworker, the senior manager for the lab used by the department explained how sweat patches work and concluded: "I am very confident that methamphetamine is present on these patches." In its October review order, the juvenile court found the results of the testing through the department to be reliable.
From there, the father completed the group portion of his treatment, but he stopped attending individual treatment and was unsuccessfully discharged in November. He continued to test positive for methamphetamine and other drugs or not appear for drug testing-until his first negative test result for the department in mid-December. In its January 2023 review order, the court noted it was "encouraged to see a negative drug screen" but warned the father that he "must both test negative and participate in therapy/services in order to reunify with the boys."
But the drug test results that were pending when the court issued that order were positive for methamphetamine. In the months that followed, the father had two negative test results among four missed tests. Meanwhile, the father was abrupt and dismissive with the visitation supervisor, ignored the wishes of the children's placement, and endorsed rather than redirected the children's inappropriate behavior. The father was granted a special visit on the children's birthday, but he ended it early, leaving the children "devastated and confused." Without telling the department, the father decided to move to Nebraska in early May. The department requested a study of the father's home under the interstate compact on the placement of children, but Nebraska officials denied the application because of his continued drug use. Of the two drug tests the father submitted to in May, one was positive for methamphetamine and cocaine, and the other was positive for cocaine. At the permanency hearing that month, the department recommended terminating the father's parental rights.
The State filed its termination petitions in early June. For the first time in the case, the father provided three consecutive negative drug screens. Encouraged, the department moved forward with semi-supervised and unsupervised visits starting in mid-July. Because of the father's progress, the State moved to continue the termination hearing that had been scheduled for later that month "to see if [the father] can continue to be clean and can reunify with his children in the near future." The hearing was continued to August.
Unfortunately, the father's next drug test in late July was positive for cocaine. His visits reverted to fully supervised. The father then moved to continue the hearing in August, attributing his positive result to a legal prescription and requesting time to obtain an expert witness on false positives. The court granted the motion, and the hearing was continued to October. The father provided two more negative drug screens through the department in August. From then through September, the father paid for independent urinalysis drug testing in Nebraska and provided five negative results on screens that tested for cocaine only.
At the termination hearing in October, the father called Richard Sheriff, the regulatory compliance manager at a drug testing facility in Omaha, as his expert witness. He explained the differences between sweat-patch and urine testing. Aside from testing different bodily fluids, Sheriff agreed urinalysis testing only "covers just a snapshot in time," while sweat-patch testing covers much longer periods, depending on how long the individual is wearing the patch. Sheriff testified that he had never heard of the father's medication causing a false positive result for cocaine. He also testified the likelihood of having a false positive from a sweat-patch test "is very low."
In his testimony, the father maintained he has not used drugs since the proceedings started: "I have been clean-And I don't care what anyone's opinion is, and that's what it is, opinion. I have been clean since February 15, 2022, the day I went to jail." He had "no idea" why he recently tested positive for cocaine and continued to claim it resulted from his medication, even though his own expert witness debunked that theory. According to the father, he hasn't had a drug use problem for nearly two years, and he does not need any substance-use treatment.
In the end, the juvenile court granted the State's termination petitions, finding there is an "obvious cycle" with the father: "The cycle is [the father] uses methamphetamine and/or cocaine, gets stable and sober, and then relapses. This cycle has been going on since 2016 when the children were initially removed from his care." The father appeals.
II. Analysis
"Termination proceedings are reviewed de novo." In re L.B., 970 N.W.2d 311, 313 (Iowa 2022). Although we normally apply a three-step analysis in conducting this review, we confine our review to the steps raised by the father on appeal. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). If those steps support termination, we then consider the ancillary issues raised by the father.
A. Grounds for Termination
The father challenges each of the grounds for termination cited by the juvenile court, Iowa Code section 232.116(1)(e), (f), and (l). "[W]e may affirm the juvenile court's termination order on any ground that we find supported by clear and convincing evidence." In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We choose to focus on section 232.116(1)(f). The father only challenges the fourth element of that section, arguing the State failed to meet its burden because "the children would be able to return to his care after a further reunification period."
But the State only needed to prove that the children could not be returned to the father's custody at the time of the termination hearing. See Iowa Code § 232.116(1)(f)(4) (requiring "clear and convincing evidence that at the present time the child cannot be returned to the custody of the child's parents"); D.W., 791 N.W.2d at 707 (interpreting the statutory language "at the present time" to mean "at the time of the termination hearing"). The State clearly met that burden, and the father does not argue otherwise. The father lives in Nebraska, which would not approve placement with the father until he showed "at least three months of sobriety and overall compliance with case planning and case professionals." The father hadn't met those requirements by the termination hearing. And meaningful concerns remained about his ability to obtain and maintain sobriety. We agree with the father's implicit concession that the children could not be returned to his custody at the time of the termination.
B. Best Interests
The father next claims termination is contrary to the children's best interests because he is their only living parent and "obtained sobriety, obtained employment, [and] found a place to live." He does not address how the statutory factors found in section 232.116(2) weigh on the best-interests question.
Those statutory factors require us to give primary consideration to the children's safety; the best placement for their long-term nurturing and growth; and their physical, mental, and emotional condition and needs. Iowa Code § 232.116(2). We must consider what the future holds for the children if they are returned to their father. See In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). "When making this decision, we look to [his] past performance because it may indicate the quality of care [he] is capable of providing in the future." Id. (citation omitted).
We acknowledge the father is the children's only living parent. But since their mother's death, the children have been caught in a revolving door of removals because of the father's continued drug use. While the father has an apartment, and we presume his claims about his employment are true, he has not "obtained sobriety." The father's own drug-testing expert shot down each of the father's explanations for his repeated positive sweat-patch tests through the department. And the bigger picture shows a concerning pattern. There have already been two prior child-welfare proceedings that started because of the father's drug use and ended with reunification. That brought us here-six years after the first removal, with the same concerns. This shows a pattern of the father accomplishing short stints of sobriety while under the watchful eyes of the department and juvenile court, but an inability to maintain sobriety when not being supervised. See, e.g., In re I.S., No. 20-0976, 2020 WL 6481088, at *4 (Iowa Ct. App. Nov. 4, 2020) (finding termination to be in child's best interests because of "mother's pattern of short stints of sobriety followed by relapse").
The defining elements of the children's best interests are their safety and need for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011). Those elements are being satisfied by the paternal aunt, who is willing to permanently integrate the children into her home. See Iowa Code § 232.116(2)(b) (considering the children's integration into their placement and whether that placement will permanently integrate the children). The children, while sad that they could not return to their father's care, love their aunt and are comfortable with her. Like the juvenile court, we find that termination is in their best interests rather than making them wait while their father tries to get his life together. See In re C.K., 558 N.W.2d 170, 175 (Iowa 1997). Closing this revolving door will allow the children to have the permanency and stability their best interests demand.
C. Guardianship
The father next suggests that a "guardianship would have been in the children's best interest." But he doesn't say why. While the father did not request this permanency option at the termination hearing, the juvenile court still rejected it because the prior case that closed with a guardianship "did not provide stability and permanency for the boys."
The father categorizes this issue-and his request for more time, discussed below-as falling within the "permissible exceptions to termination" that "[t]he State must rule out" before termination can occur. But the parent resisting termination "bears the burden to establish an exception." In re A.S., 906 N.W.2d 467, 476 (Iowa 2018). Furthermore, the potential for a guardianship or additional time are not listed as permissive exceptions under section 232.116(3).
We begin with the principle that a guardianship is not the preferred method for permanency. See A.S., 906 N.W.2d at 477 ("[A] guardianship is not a legally preferable alternative to termination." (citation omitted)). "And a guardianship cannot be used as a permanency option unless 'convincing evidence' shows termination would not be in the children's best interests." In re C.C., No. 23-0976, 2023 WL 5949192, at *5 (Iowa Ct. App. Sept. 13, 2023) (citation omitted); accord Iowa Code § 232.104(2)(d)(2), (4)(a). Applying these principles on our de novo review, we agree with the juvenile court that a guardianship is not a viable permanency option.
D. Additional Time
Finally, the father argues "a [three] to [six] month extension . . . would have been in the children's best interests." Additional time is appropriate only if we can conclude "the need for removal . . . will no longer exist at the end of the additional six-month period." Iowa Code § 232.104(2)(b). In support of this request, the father only points out that he "completed several tests that were negative for methamphetamine use."
But, just two months before the termination hearing, the father tested positive for cocaine. And he has a history of relapsing and using drugs in the children's presence. The father's own expert testified the possibility of "a false positive on a patch" was "very low," and he said that cocaine "is not similar to any prescription drug that I am aware of." Given the father's relapse pattern, and adamant denials of drug use or the need for treatment, he would need to demonstrate sobriety for more than six months before reunification could occur. So we agree with the juvenile court that additional time is unwarranted.
We acknowledge that after his sweat patch tested positive for cocaine in early August 2023, the father paid for independent urinalysis testing and tested negative for that drug. But there was no evidence about the procedures or reliability of that testing. And the father's expert testified that the two tests are not comparable, agreeing it was possible "for a urinalysis test to come back with a negative result, say, for cocaine and a sweat patch . . . covering the same time period to come back as a positive."
AFFIRMED.