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IN THE COURT OF APPEALS OF IOWA No. 1-920 / 11-1315 Filed December 7, 2011

IN THE INTEREST OF N.G. and D.W., Minor Children, B.M.S., Mother, Appellant, A.L.G., Father, Appellant, D.V., Grandmother, Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Clinton County, Phil Tabor, District Associate Judge.

A father and grandmother/intervenor appeal from the juvenile court's order terminating parental rights. AFFIRMED.

Matthew Noel, Dubuque, for appellant mother. Nathan W. Tucker, Davenport, for appellant father. Carrie E. Coyle of Carrie E. Coyle, P.C., Davenport, for appellant/ intervenor grandmother. Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Mike Wolfe, County Attorney, and Cheryl J. Newport, Assistant County Attorney, for appellee State. Stephen Haufe, Clinton, for minor children.

Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ. Tabor, J., takes no part.

2 DOYLE, J. A father appeals the termination of his parental rights. Additionally, the maternal grandmother, an intervenor in the case, appeals the juvenile court's failure to place the children in her care. We affirm. I. Background Facts and Proceedings. B.S. is the mother of D.W., born in 2003, and N.G., born in 2006. A.G. is the biological father of N.G., and D.W. considered A.G. a father-figure. The parents have a history of domestic violence and had a short relationship. The children lived with their mother, but both children had regular visits with A.G. D.V.K. is the children's maternal grandmother. The children came to the attention of the Iowa Department of Human Services (Department) in August 2009, after it was reported the children were being denied critical care due to the mother's ongoing drug use. Family safety, risk, and permanency services were offered to the family. The children were voluntarily placed in their maternal grandmother's care in October 2009 after N.G. tested positive for cocaine and benzoylecgonine. The mother provided a sample for urinalysis at that time; however, the mother did not test positive for the same illegal substances for which N.G. tested positive. The mother suggested N.G. tested positive due to the father's drug use, and th e father was asked to take a drug test to rule that out. He refused. A family team meeting was held in January 2010, and both parents attended. The father was again asked to provide a sample for urinalysis and he refused. He later became upset and left the meeting. Another family team

meeting was scheduled for March 12, 2010, for the father to "discuss his

3 participation with services and visitation," but he did not show up for the meeting. In May 2010, the juvenile court adjudicated the children as children in need of assistance (CINA). The court specifically found the father had been

uncooperative with services and drug testing. In June 2010, the father requested visitation with the children, but continued to refuse drug testing. A visit was scheduled for July, but the father later stated he did not want the visit. The father finally submitted to drug testing in August 2010, and he tested positive for cocaine and marijuana. Thereafter, he was arrested on an outstanding warrant for domestic abuse assault. The father then ceased involvement in the case until February 2011. In August 2010, the maternal grandmother, who also had a history of drug and alcohol abuse but had been sober for thirteen years, relapsed. She

voluntarily requested the children be removed from her care and placed in foster care. The children were returned to their mother's care in December 2010. On February 24, 2011, the father, while incarcerated for convictions for twice violating a no-contact order and third-degree domestic abuse assault, spoke with a service provider. The father expressed that he wanted to get clean and be a father to the children. He was released from jail on March 28, 2011. He contacted the service provider, but he stated he did not have any contact information to provide them at that time. The children were again removed from the mother's care in April 2011 after they were physically abused by her paramour, and they were placed in foster care. The father did not contact the service provider again until May 2011. He then provided a sample for urinalysis testing and tested positive for marijuana

4 and cocaine. Visitation was not allowed until the father contacted the

Department. Two appointments with the Department were scheduled in June, but the father missed those appointments. As part of his probation conditions, the father was ordered to complete a substance abuse evaluation and attend a batterer's education program. The father completed his substance abuse evaluation on June 29, 2011, and he tested positive for marijuana after providing a drug screen at the evaluation. The evaluation recommended the father complete an intensive outpatient program, and he was placed on the program's waiting list. On July 18, 2011, the State filed its petition for termination of the parents' parental rights. A hearing on the State's petition was held in August 2011. The father testified that he had begun participating in the batterer's education program in April 2011, but he still had several months to go. He testified he was still on the waiting list to get into the intensive outpatient program. He admitted the children could not be returned to his care at that time, but requested he be given additional time for reunification, explaining: Right now I'm on the right path for changing my life around, of getting myself in order before I could get my kids, because I don't want to see them do no hurt no more, because I know they hurt. You know, they kids. . . . I just want to be there for my kids. The Department's caseworker testified that the maternal grandmother had expressed she would like to be considered as a placement for the children. However, the Department, the children's guardian ad litem, and the courtappointed special advocate all expressed concerns about placement with the grandmother, due to her relapse, allowing the parents to see the children without

5 the Department's permission, and inability to get the children to appointments and to provide the children the structure they needed. The parents both expressed that if their parental rights were terminated, they would like the children to be placed with the grandmother. The grandmother testified she had been sober for seven and a half months and had been attending NA and AA. She had gained employment and had gotten a newer, more reliable vehicle. She was living in an apartment that would allow the children to be She was addressing her mental health issues and taking

placed with her.

prescribed medications. On August 10, 2011, the court entered its ruling terminating the father's parental rights pursuant to Iowa Code section 232.116(1)(f) and (i)(2011).1 The court placed the children in the custody and guardianship of the Department for placement in an appropriate pre-adoptive home. The father and the maternal grandmother now appeal. II. Scope and Standards of Review. We review the juvenile court's decision to terminate parental rights de novo. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). The State must prove grounds for termination by clear and convincing evidence. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). In considering whether to terminate, our primary

considerations are the children's safety; the physical, mental, and emotional condition and needs of the children; and the placement that best provides for the

1

The mother's parental rights were also terminated but are not at issue in this

appeal.

6 long-term nurturing and growth of the children. Iowa Code

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