IN THE COURT OF APPEALS OF IOWA

No. 22-1290

Filed November 17, 2022

IN THE INTEREST OF J.H. and J.H.,

Minor Children,

J.H., Father,

Appellant,

A.T., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Jason A. Burns, 

District Associate Judge.

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

AFFIRMED.

Sarah Hradek, Iowa City, for appellant father.

Sara Strain Linder of Bray & Klockau, Iowa City, for appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant 

Attorney General, for appellee State.

Anthony Haughton of Linn County Advocate, Cedar Rapids, attorney and 

guardian ad litem for minor children.

Considered by Bower, C.J., and Greer and Badding, JJ.
2

GREER, Judge.

The juvenile court terminated the parental rights of A.T., the mother, and 

J.J.H., the father, to their two children—who both are under the age of three. This 

appeal addresses the parents’ objections to that determination.

The father and mother each maintain the State failed to prove the statutory 

grounds for termination, specifically that the children could not be returned to their

custody at the time of the termination hearing; that termination of their parental 

rights is not in the children’s best interests; and that the juvenile court should have 

avoided termination via the permissive exception found in Iowa Code section 

232.116(3)(c) (2022). Additionally, the mother argues the juvenile court should 

have granted her a six-month extension. 

Because the State proved the statutory ground for termination, termination 

is in the best interests of the children, no permissive exception was warranted in 

this case, and a six-month extension for the mother would have been 

inappropriate, we affirm.

I. Facts and Prior Proceedings.

On July 11, 2021, the mother tested positive for marijuana, 

methamphetamine, and amphetamine just before giving birth to the younger child; 

the mother admitted to using methamphetamine that day. The Iowa Department 

of Health and Human Services (DHHS)1 was alerted. While in the hospital, the 

child’s umbilical cord also tested positive for methamphetamine and 

1

In 2022, the Iowa legislature merged the department of human services with the 

department of public health into the Iowa Department of Health and Human 

Services, with the transition starting July 1, 2022. See 2022 Iowa Acts ch. 1131 

§ 51. 
3

amphetamines. In the days following, the father tested positive for 

methamphetamine and marijuana. About two weeks later, the mother left the 

shelter where the family was staying to go see a friend, leaving the older child, who 

was ten-months old, crying and alone in the family’s room. Now, with combined 

concerns about supervision and drug use, the State filed for temporary removal on 

July 26, which the juvenile court granted. The children were placed in foster care 

and adjudicated children in need of assistance (CINA). 

On a positive note, the parents began participating in Family Treatment

Court in the fall of 2021. The mother completed a substance-abuse evaluation 

and was recommended to complete inpatient treatment, which she began in 

December 2021. But the steps forward stalled when she was discharged within 

the month after a series of behavioral violations. The father was also evaluated 

and began attending intensive outpatient treatment in February 2022, but he too 

stalled progress when he was discharged in April for non-attendance. In March, 

after continuing to deny drug use despite positive tests and allegations, it was 

learned that the mother was trying to sell mushrooms to others in treatment.

2 With 

no progress on the substance-abuse concerns, the parents were discharged from 

Family Treatment Court. 

Both parents received a second evaluation, the mother in March and the 

father in May, but they did not provide the results to their DHHS caseworker. 

2

In February, the individual administering the parents’ drug tests reported the 

mother had asked if mushrooms would show up on the screening. A few weeks 

later, workers at the substance-abuse-treatment center the mother attended 

received word from one of their participants that the mother attempted to sell them 

mushrooms. 
4

Instead, the caseworker saw the evaluations for the first time when the parents 

each submitted them as evidence at the termination hearing. The evaluations 

each recommended relapse preventions groups; the mother asserted she was 

attending as needed and the father said he was signed up to begin as well.

3

 Both 

parents said they were attending weekly virtual Alcoholics Anonymous meetings

together. Still, DHHS’s last report to the court ahead of the June 16 termination 

hearing stated that, of the tests the mother appeared for, she had fourteen positive 

drug tests and three negative tests; on the father’s part, he had eleven positive 

and five negative tests. Both parents had also missed some drug tests and had 

multiple tests that appeared to have been tampered. At that time, the most recent 

drug test—June 8—was positive for both parents and showed signs of tampering.

At trial, both parents questioned the validity of the tests. The mother stated her 

last use of methamphetamine and marijuana was in November; she claimed she 

had not used any substances after finding out she was now again pregnant. The 

father also stated his last methamphetamine use was in November and he last 

used marijuana in January. The children’s maternal grandmother and the mother’s 

employer—who each regularly see the parents—both testified they had not noticed 

behavioral indicators of use by the parents. 

To her credit, the mother completed a mental-health evaluation, which 

recommended individual therapy. At the time of the termination hearing, she was 

attending therapy once a month. The father was also supposed to receive an

3 The DHHS caseworker had not received verification that the parents were 

attending. 
5

evaluation, but the caseworker had no indication the father had complied at the 

time of the termination hearing. 

Early in the case, the parents struggled to attend visits with the children. 

Even as their attendance became more regular, there were issues with the parents 

coming unprepared or allowing other adults, not approved by DHHS, to be present. 

The parents did successfully complete the Nurturing Parent Program and visits 

typically went well—the parents were attentive to the children and the children 

were not fearful of them. But the continued positive drug tests caused visitation to 

remain fully supervised. 

The parents have not been able to maintain stable housing during the case. 

After they left the homeless shelter, they fluctuated between staying with friends 

and family or short-term rentals. Often, DHHS had no information about where the 

parents were living. At the time of the termination hearing, the parents reported 

they intended to move in with the children’s paternal grandmother because of a 

tumultuous relationship with their landlord while applying for another apartment. 

The juvenile court referenced a “common theme” from the parents—they have 

many plans but often fail to follow through with the stated intentions. Yet, at the 

termination trial, the parents had employment, meeting one of the goals 

established by DHHS.

The State filed for termination of parental rights in January 2022, citing 

concerns about the parents’ housing stability and continued substance abuse. 

After a hearing, both parents’ parental rights were terminated under Iowa Code 

section 232.116(1)(h). 
6

II. Analysis.

We review termination of parental rights de novo. In re P.L., 778 N.W.2d 

33, 40 (Iowa 2010). Each parent separately appeals the termination of their 

parental rights. Both parents argue the State failed to prove the ground for 

termination, termination is not in the children’s best interests, and the court should 

have used the permissive exception found in Iowa Code section 232.116(3)(c) to 

avoid termination; the mother additionally asserts the court should have granted 

her a six-month extension. We address each in turn.

A. Statutory Grounds for Termination.

Each parent argues the State did not prove, “[t]here is clear and convincing 

evidence that the child cannot be returned to the custody of the child’s parents as 

provided in section 232.102 at the present time,” a necessary element to terminate 

their parental rights under section 232.116(1)(h).4 See In re D.W., 791 N.W.2d 

703, 707 (Iowa 2014) (using the termination hearing as the benchmark time for 

section 232.116(1)(h)). 

The father argues the juvenile court erred in relying on Iowa Code section 

232.102(5) when finding the children could not be safely returned to his care. The 

father is correct that this code section was deleted as of July 1, 2022. See 2022 

4 Section 232.116(1)(h) also requires the court to find: 

(1) The child is three years of age or younger.

(2) The child has been adjudicated a [CINA] pursuant to 

section 232.96.

(3) The child has been removed from the physical custody of 

the child’s parents for at least six months of the last twelve months, 

or for the last six consecutive months and any trial period at home 

has been less than thirty days.

Neither parent contests these other elements.
7

Iowa Acts ch. 1198 § 47. Setting aside the fact this petition for termination was 

filed before the change in law, section 232.102(5) dealt with allowing children to 

participate in extracurricular activities while in foster care—we believe this was a 

scrivener’s error on the part of the juvenile court. We assume the juvenile court 

meant to reference section 232.102(4)(a)(2), which dictates: 

Custody of the child[ren] should not be transferred unless the 

court finds there is clear and convincing evidence that:

(1) The child[ren] cannot be protected from physical abuse 

without transfer of custody; or

(2) The child[ren] cannot be protected from some harm which 

would justify the adjudication of the child[ren] as a [CINA] and an 

adequate placement is available.

The father also argues he has been addressing his substance abuse and 

has maintained sobriety by the time of the termination hearing despite his positive

drug tests. Further, he argued the children could live with him and the mother at 

the paternal grandmother’s home. The mother similarly argues her substance 

abuse does not prevent the children from being safely returned to her because she 

is participating in the recommended treatment. Both parents point to their 

concerns about the validity of the drug testing and the testimony of witnesses who 

said the parents were not displaying behavioral indicators of use.

Like the juvenile court, we do not find the parents’ denials of active and 

continuing methamphetamine use to be credible in the face of their consistent 

positive drug tests. Each parent regularly tested positive for methamphetamine as 

late as the weeks leading up to the termination hearing, which itself would prevent 

the children from being returned to their parents’ care. See In re A.B., 815 N.W.2d 

764, 776 (Iowa 2012) (“We have long recognized that an unresolved, severe, and 

chronic drug addiction can render a parent unfit to raise children.”); In re P.D., 
8

No. 19-1824, 2019 WL 6894420, at *1 (Iowa Ct. App. Dec. 18, 2019) (“Given the 

mother’s continued use of methamphetamine, the child would be at risk of 

adjudicatory harm.”). Neither parent presented any evidence the tests provided 

were faulty or were repeatedly generating false positives; we, like the juvenile 

court, do not find their concerns credible. And even if we take the parents’ word 

for it that they are actively engaging in treatment to combat their drug use, they 

have not met success in the battle of achieving and maintaining sobriety. See 

A.B., 815 N.W.2d at 776 (“[B]ecause of [the parent’s denial of drug use, the 

parent’s] drug problem was unresolved, and thus, he was ‘not in a position to 

provide the safe and stable home [the children] need and deserve.’”).

On top of the substance abuse, though the parents found a place to land 

for the moment, they have not shown an ability to maintain safe, stable housing for 

these children. See In re J.A., No. 21-0157, 2021 WL 1399770, at *2 (Iowa Ct. 

App. Apr. 14, 2021) (“We acknowledge well-established case law that a parent’s 

impoverished condition should not be the sole basis of a termination decision. That 

said, a parent must be able to provide children with the basic necessities of life, 

including a roof over their heads and food on the table.” (internal citations omitted)). 

We applaud the progress the parents have made in completing parenting 

programing and finding employment, as well as the mother’s efforts to address her 

mental-health concerns. Still, because the parents have not yet tackled their 

substance abuse and housing instability, we find clear and convincing evidence on 

our de novo review that the children could not be returned to their care at the time 

of the termination hearing. 
9

B. Best Interests.

The parents each argue termination is not in their children’s best interest. 

In determining the children’s best interests, we “give primary consideration to the 

child[ren]’s safety, to the best placement for furthering the long-term nurturing and 

growth of the child[ren], and to the physical, mental, and emotional condition and 

needs of the child[ren].” Iowa Code § 232.116(2). The “defining elements in a 

child’s best interest[s]” are their safety and need for permanency. See In re A.M., 

843 N.W.2d 100, 113 (Iowa 2014) (citation omitted). 

Both parents argue that the strength of the bond between them and their 

children is strong, meaning termination is not in the children’s best interests. They 

also argue there was no evidence the children have integrated into their foster 

family. See Iowa Code § 232.116(2)(b). The parents mischaracterize the 

relationship between the foster parents and the children. While the relationship 

was not widely discussed at trial and the foster parents have been supportive of 

reunification, the DHHS caseworker testified the children were bonded with the 

foster parents and are having their needs met. And, the most recent review of the 

home stated the foster parents would adopt. The children have lived in their 

current foster home since October 2021, and the DHHS caseworker testified at the 

termination hearing that the children have bonded with their foster parents.

Moreover, the children’s integration into their foster family is only one of the 

considerations when determining if termination is in their best interests. And the 

parents continue to dodge the steps necessary to provide for the children’s “longterm nurturing,” “growth,” or their “physical, mental, and emotional condition and 

needs.” See Iowa Code § 232.116(2); see also In re C.S., No. 16-1593, 2017 WL 
10

362008, at *2 (Iowa Ct. App. Jan. 25, 2017) (noting unresolved substance abuse, 

even after receiving treatment, prevents a parent from providing safe conditions 

for their children). The parents have not meaningfully changed the dangerous 

behavior that led to the children’s initial removal. See In re C.B., 611 N.W.2d 489, 

495 (Iowa 2000) (“Insight for the determination of the child’s long-range best 

interests can be gleaned from ‘evidence of the parent’s past performance for that 

performance may be indicative of the quality of the future care that parent is 

capable of providing.’” (citation omitted)). Termination will put the children another 

step closer to the permanency their parents have not yet provided for them. See 

In re C.K., 558 N.W.2d 170, 175 (Iowa 1997) (“It is simply not in the best interests 

of children to continue to keep them in temporary foster homes while the natural 

parents get their lives together.”). 

In this case, it is clear the parents care for their children. Still, the younger 

child has never been in the parents’ care and the older one was removed at only 

ten months old; even if a strong bond exists, it does not outweigh our other 

considerations. 

C. Permissive Exceptions.

Both parents argue the juvenile court should have exercised the 

section 232.116(3)(c) exception, which allows the court to forgo termination upon 

finding “[t]here is clear and convincing evidence that the termination would be 

detrimental to the child at the time due to the closeness of the parent-child 

relationship.” Iowa Code § 232.116(3)(c). The exception is permissive rather than 

mandatory, In re W.T., 967 N.W.2d 315, 324 (Iowa 2021), and after the State 

proves the grounds for termination, “the parent resisting termination bears the 
11

burden to establish an exception to termination.” See In re A.S., 906 N.W.2d 467, 

476 (Iowa 2018). “[O]ur consideration must center on whether the child will be 

disadvantaged by termination, and whether the disadvantage overcomes [the 

parent’s] inability to provide for [the child’s] developing needs.” D.W., 791 N.W.2d 

at 709. 

Though the parents argue they have a close bond with their children 

because the children get upset at the end of their visits, neither parent has shown 

this bond was strong enough to overcome the need for termination founded in the 

parents’ inability to maintain sobriety or stable housing. On our de novo review, 

the application of the section 232.116(3)(c) permissive exception is not warranted.

D. Six-Month Extension.

The final argument, raised only by the mother, is that the juvenile court 

should have granted her a six-month extension to work toward reunification. See 

Iowa Code § 232.104(2)(b). This option requires the parent seeking the extension 

show the “impediments to placing [the child] with [the parent would] not exist in six 

months.” W.T., 967 N.W.2d at 323. The juvenile court would then have to enter 

an order “enumerat[ing] the specific factors, conditions, or expected behavioral 

changes which comprise the basis for the determination that the need for removal 

of the child from the child’s home will no longer exist at the end of the additional 

six-month period.” Iowa Code § 232.104(2)(b). This balance takes into account 

the time for reunification already built into the code. See C.B., 611 N.W.2d at 494 

(“While we recognize the law requires a ‘full measure of patience with troubled 

parents who attempt to remedy a lack of parenting skills,’ Iowa has built this 

patience into the statutory scheme of Iowa Code chapter 232.” (citation omitted)); 
12

P.L., 778 N.W.2d at 39 (“It is well-settled law that we cannot deprive a child of 

permanency after the State has proved a ground for termination under section 

232.116(1) by hoping someday a parent will learn to be a parent and be able to 

provide a stable home for the child.”). 

The mother argues six additional months would give her time to 

demonstrate her sobriety and figure out her housing situation. She points 

specifically to a recent case by a panel of this court, In re G.B., No. 22-0439, 2022 

WL 1657190, at *5 (Iowa Ct. App. May 25, 2022), where a positive drug test was 

“the only fly in the ointment” preventing a six-month extension. But, G.B. involved 

a parent who had a positive test nine months before termination and then only 

negative tests afterwards. 2022 WL 1657190, at *5–6. That demonstrated 

sobriety is a far cry from the case at hand. This record does not establish that six 

more months would allow the mother to safely regain custody of her children, 

especially when she has made no meaningful progress toward sobriety or stable 

housing in the nearly a year this case was pending. See C.B., 611 N.W.2d at 495 

(“Time is a critical element. A parent cannot wait until the eve of termination, after 

the statutory time periods for reunification have expired, to begin to express an 

interest in parenting.”); In re K.G., No. 18-1187, 2019 WL 7190047, at *2 (Iowa Ct. 

App. Feb. 20, 2019) (“The burden is not on the State to prove an extension is not 

appropriate as the mother asserts. Rather, the court needs evidence to support a 

finding the mother would be able to care for the children within six months in order 

to grant an extension.”). Without any indication in the record that six months would 

be enough time for the mother to take care of the impediments to reunification, a 

six-month extension is inappropriate. 
13

III. Conclusion.

On our de novo review of the termination of the mother’s and father’s 

parental rights to these two children, we find the State established the ground for 

termination, the children’s best interests are served by termination, the requested 

permissive exception to termination does not apply, and an additional six-months 

for the mother to work toward reunification is not warranted. We affirm the juvenile 

court. 

AFFIRMED.