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IN THE COURT OF APPEALS OF IOWA No. 0-827 / 10-1522 Filed December 8, 2010

IN THE INTEREST OF K.C., K.C., and E.C., Minor Children, N.J.C., Father, Appellant, A.C., Mother, Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Louise Jacobs, District Associate Judge.

A father and mother appeal separately from the order terminating their parental rights. AFFIRMED ON FATHER'S APPEAL; REVERSED AND

REMANDED ON MOTHER'S APPEAL.

Patrick O'Bryan, Des Moines, for appellant father. Nancy Pietz, Des Moines, for appellant mother. Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John P. Sarcone, County Attorney, and Annette Taylor, Assistant County Attorney, for appellee State. Michelle Saveraid of the Youth Law Center, Des Moines, for minor children.

Considered by Mansfield, P.J., and Danilson and Tabor, JJ.

2 DANILSON, J. A father and mother appeal separately from the termination of their parental rights to their three children. The father contends the district court erred in terminating his parental rights despite a strong parent-child bond. The mother contends the State failed to prove the grounds for termination by clear and convincing evidence; termination is not in the children's best interest; and the court erred in failing to grant her additional time for reunification and in terminating her parental rights despite a strong parent-child bond and the children's placement with a relative. We review these claims de novo. In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). Given the father's history of chronic and severe substance abuse problems, current incarceration, and two convictions for child endangerment placing the children at risk of harm, we affirm termination of his parental rights. In regard to the mother, we find there is insufficient evidence to justify the termination of her parental rights to the children under the facts and circumstances of this case. We reverse the court's order terminating the

mother's parental rights and remand the case for further proceedings to make an effort to reunite these children with the mother. I. Background Facts and Proceedings. The father and mother began their relationship in 2005. Their first child was born in October 2006, when the father was sixteen years old and the mother was eighteen years old. They married in 2007. They had two more children, born in November 2007 and August 2009. At the time of the termination hearing, the father was twenty-one, and the mother was twenty-three.

3 The family came to the attention of the Iowa Department of Human Services in November 2008, after the police found the father and the two older children in a vehicle with marijuana and a loaded BB gun within reach of the children. The father was charged with child endangerment, and the family was offered informal services to assist in meeting parenting responsibilities. In

September 2009, the family again came to the attention of DHS, when the two older children (nearly two and three years of age) were discovered playing outside the family home in the mid-morning without adult supervision. The

youngest child was one month old at the time. A concerned neighbor called the police, and officers arrived at the family home and awakened the parents who were sleeping inside the home.1 Both parents were charged with child

endangerment. The mother received a deferred judgment. The children were removed from the home and were adjudicated in need of assistance (CINA). The children have been in the custody of their paternal aunt since removal. The father was on probation for the initial child endangerment charge when the second charges were filed. His probation was revoked, and he was sentenced to up to ten years in prison on the new charges. He has been in prison since March 2010, and expects to be released in March 2014. The father has a lengthy history of substance abuse. He began using illegal drugs at age eleven or twelve, and has gone at most six months without using drugs since that time. He completed substance abuse treatment programs on two occasions, but

The mother was recovering from a cesarean delivery and was taking prescription painkillers at the time. It appears both parents were resting after being up at night with the newborn, but neither intended to fall asleep. The mother admitted she was aware that her painkillers made her groggy.

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4 relapsed shortly thereafter. He last used cocaine in June 2009, and marijuana two days before going to prison in 2010. The mother does not use drugs or alcohol. Her drug screens and hair stats throughout these proceedings have been negative. She cooperated with caseworkers and participated in all recommended services, including individual and family therapy, visitation, and protective daycare. She takes medications as prescribed for her depression. By the time of termination, caseworkers indicated the mother's mental health was no longer a concern. The mother is employed and has a home that is appropriate for the children. The mother has had five supervised visits a week with the children. Several caseworkers reported that visitation went very well, and there were no concerns as to the mother's ability to parent the children. In March 2010, child psychiatrist Dr. Martin Fialkov recommended the mother's visitation be increased to semi-supervised and unsupervised as soon as possible. In early June 2010, social worker Dustin Daugherty recommended the same. However, the record indicates that from at least December 2009 to the time of the termination hearing, visitation had not increased. At some point during these proceedings, the mother's a ttorney and caseworkers advised the mother to cease all contact with the father or risk losing the children. (However, the juvenile court never ordered that she not have

contact with the father.) It appears that even after this recommendation was given, the mother maintained some amount of contact with the father. In March 2010, caseworkers discovered that during a visit, the mother allowed the children to speak with the father on the phone for a few minutes, and thereafter

5 relinquished her Easter visit with the children scheduled to occur the following weekend. The mother called the father in prison on several occasions in April 2010. In May 2010, the father mailed the mother a Mother's Day card and a birthday card. It appears he also sent her several letters through her brother. The State filed its petition to terminate parental rights in March 2010. Thereafter, the mother claimed that although she still loved the father, she no longer wanted to be with him. She filed a petition for divorce and claimed she had stopped having contact with the father. She changed her cell phone number so he could not contact her. Following a hearing taking place on June 14 and July 1, 2010, the court entered its order terminating the father's parental rights pursuant to Iowa Code section 232.116(1)(d), (h), (i), (j), and (l), and the mother's parental rights pursuant to section 232.116(1)(d), (h), and (i) (2009). II. Parental Rights of the Father. Because the father does not dispute the grounds for termination have been proved, we may affirm on those grounds. See Iowa R. App. P.

6.903(2)(g)(3) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue."); In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999) ("When the juvenile court terminates parental rights on more than one statutory ground, we need only find grounds to terminate under one of the sections cited by the juvenile court to affirm."). However, the father contends termination would be detrimental to the children because of the strong parent-child bond he shares with the children.

6 The father's argument asks us to consider whether the exception under section 232.116(3)(c) applies to refute termination of his parental rights.2 See Iowa Code

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