IN RE INTEREST OF J.C., 699 N.W.2d 685 (Iowa App. 2005)

No. 5-348 / 05-0415Court of Appeals of Iowa.
Filed May 11, 2005

Appeal from the Iowa District Court for Cerro Gordo County, Gerald W. Magee, Associate Juvenile Judge.

A father appeals from the order terminating his parental rights to three children. AFFIRMED.

Douglas Grabinski of the Grabinski Law Firm, Clear Lake, for appellant.

Thomas Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Paul L. Martin, County Attorney, and Gregg Rosenbladt, Assistant County Attorney, for appellee-State.

Mark Young, Mason City, guardian ad litem for minor children.

Considered by Vogel, P.J., and Miller and Hecht, JJ.

HECHT, J.

Michael is the father and Jennifer is the mother of Jeffrey, born November 11, 1999, Sarah, born November 1, 2000, and Eavie, born November 7, 2001. The family first came to the attention of the Iowa Department of Human Services (DHS) in November of 2000 when Sarah tested positive at birth for drugs. DHS again became involved in December of 2002 when Michael was arrested on an outstanding warrant and drugs were found in his possession. The children were later adjudicated to be in need of assistance pursuant to Iowa Code section 232.2(6)(o) (2003) based on hair stat testing which revealed the presence of drugs in each child. On May 19, 2003, the children were removed from their parents’ custody[1] and placed in foster care. On March 10, 2004, the State filed a petition seeking to terminate Michael’s parental rights to Jeffrey, Sarah, and Eavie. Following a June 7 hearing, the juvenile court denied the petition, instead entering a permanency order. The petition to terminate Michael’s parental rights, however, again came before the court pursuant to the State’s Motion for Early Review Hearing. Following a hearing on that motion, the court granted the State’s petition to terminate Michael’s parental rights under sections 232.116(1)(e), (f), and (h) (2005). Michael appeals.

We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). While the district court terminated the parental rights on more than one statutory ground, we will affirm if at least one ground has been proved by clear and convincing evidence. In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct.App. 1995).

Michael first maintains “there is not clear and convincing evidence that [he] has not maintained significant contact with the minor children as provided by [section] 232.116(1)(e)(3)” We note that Michael does not contest the grounds for termination under sections 232.116(1)(f) or (h), and we could affirm the termination of his parental rights under those statutory provisions. See In re W.C., 489 N.W.2d 40, 41 (Iowa Ct.App. 1992) (failure to argue an issue may be deemed waiver of that issue). However, in our discretion we proceed to reach the merits, and affirm the termination to Jeffrey and Sarah under section 232.116(1)(f) (child four or older, cannot be returned to parent’s custody) and to Eavie under section 232.116(1)(h) (child three or younger, cannot be returned to parent’s custody).

As noted, the children were adjudicated children in need of assistance based on their exposure to drugs. The removal of the children from their parents’ custody was based, in part, on Michael’s incarceration, drugs and drug paraphernalia found in Michael’s home, and Jennifer’s pending criminal drug charges. The children’s exposure to drugs remains a significant concern, and a distinct obstacle to reunification. Michael’s history of drug offenses runs back to 1990. He has been incarcerated a number of times, and at the time of the hearing he was on probation for third-offense possession of a controlled substance. Michael has also been offered a variety of services to address his drug abuse, but these have been unsuccessful. Service providers characterized Michael’s commitment to substance abuse treatment as “minimal.” They also noted that Michael missed several required urinalyses, and failed at least four of those he did give.

We further reject Michael’s contention that termination was inappropriate due to the closeness of his relationship to the children. After the court denied the State’s first attempt to terminate Michael’s parental rights, the court imposed a number of expectations to be met by Michael if he wished to regain custody of the children. Michael failed to meet most of those expectations by being evicted from housing, becoming unemployed, testing positive for illegal substances, failing to comply with probation, and becoming incarcerated. Michael obviously did not take these conditions seriously enough to put forth serious effort toward reunification. He has placed his desires above the needs of his young children. Clear and convincing evidence established that termination is in their best interests.

AFFIRMED.