                       IN THE COURT OF APPEALS OF IOWA

                                      No. 15-1549
                                 Filed March 23, 2016


IN THE INTEREST OF S.K.,
Minor Child,

S.K., Mother,
Appellant,

B.K., Father,
Appellant.
________________________________________________________________

          Appeal from the Iowa District Court for Dallas County, Virginia Cobb,

District Associate Judge.



          The mother and father appeal the district court’s termination of their

parental rights to their child, S.K. BOTH APPEALS AFFIRMED ON CONDITION

AND REMANDED.



          Stephie N. Tran, West Des Moines, for appellant mother.

          Tabitha l. Turner of Turner Law Firm, P.L.L.C., Des Moines, for appellant

father.

          Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd and

Kathryn K. Lang, Assistant Attorneys General, for appellee State.

          Kayla Stratton of the Des Moines Juvenile Public Defender, Des Moines,

attorney and guardian ad litem for minor child.



          Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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VOGEL, Judge.

       The mother and father separately appeal the district court’s termination of

their parental rights to their child, S.K. Both parents argue the State failed to

prove by clear and convincing evidence grounds to terminate their rights

pursuant to Iowa Code section 232.116(1)(d), (e), and (h) (2015), and the father

asserts the parent-child bond set forth in section 232.116(3) should preclude

termination.   The mother further argues termination is not in the child’s best

interests, as she has a strong bond with the child and should be granted

additional time to resolve her methamphetamine addiction. A motion for stay

was also filed by the father, who argued the Indian Child Welfare Act (ICWA)

could apply.

       We conclude the court properly terminated both parents’ rights pursuant to

paragraph (h), given their unresolved substance abuse issues result in S.K. not

being able to be placed in either parent’s care; furthermore, it is in the best

interests of S.K. the parents’ rights are terminated, and we find no consideration

that would preclude termination. Consequently, we conditionally affirm the order

of the district court and remand for a determination as to whether proper notice

has taken place regarding ICWA.1

I. Factual and Procedural Background

       S.K., born January 2014, first came to the attention of the Iowa

Department of Human Services (DHS) in March 2014, when the mother tested

positive for methamphetamine and marijuana and the father, who has a long

1
 The mother filed an untimely pro se letter after this case was submitted to this court for
consideration. The State filed a motion to strike the letter as untimely. We grant the
State’s motion to strike.
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criminal history, was reportedly actively using illegal substances. S.K. tested

positive for methamphetamine and marijuana.             She was removed from the

parents’ care on March 26, 2014, and placed with the paternal grandmother.

However, DHS discovered the grandmother was allowing unsupervised contact

with the parents. On August 14, 2014, the parents were arrested after the father

was found to be driving without a license—with S.K. in the vehicle—and the

mother had methamphetamine in her possession.2               Consequently, S.K. was

moved to family foster care, where she remained at the time of the termination

hearing.

       The following services were offered to the parents during the pendency of

these proceedings: family safety, risk, and permanency services; supervised

visitation; safety services; relative placement; drug testing; substance abuse

treatment and individual therapy; medical and mental health services, including

medication management; and remedial services. The district court noted, “The

services have either not been successful or the parents have not complied with

services.” Before the termination hearing, the mother gave birth to another child

who tested positive for methamphetamine.

       Due to the parents’ inability to resolve their substance abuse issues, the

State petitioned to terminate their parental rights to S.K. A hearing was held on

May 11, 2015, and on August 31, 2015, the district court issued an order

terminating both parents’ rights under Iowa Code section 232.116(1)(d), (e), and

(h). The parents appeal the court’s order.


2
 At the termination hearing, the mother claimed S.K. was not in the vehicle, asserting it
was a different child.
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       On February 18, 2016, the father filed a motion for stay, arguing he and

the mother might have Native American heritage and that the Indian Child

Welfare Act (ICWA) could apply. The State resisted, and we address the motion

for stay below.3

II. Standard of Review

       We review termination proceedings de novo. In re S.R., 600 N.W.2d 63,

64 (Iowa Ct. App. 1999). The grounds for termination must be proved by clear

and convincing evidence. Id. Our primary concern is the child’s best interestS.

Id. When the juvenile court terminates parental rights on more than one statutory

ground, we only need to find grounds to terminate under one of the sections cited

by the juvenile court to affirm. Id.

III. Stay

       The father argues both parents might have Indian heritage such that

ICWA could apply, which requires us to issue an order to stay the proceedings

and remand the case back to the district court so it may make a factual finding

with respect to the applicability of ICWA.

       With regard to ICWA, our supreme court has noted:

              A great number of courts considering similar statutes have
       held that when an appellate court finds a violation of ICWA notice
       provisions, reversal is not necessarily warranted. Rather, the
       proper procedure, at least when there is no other evidence the child
       is an Indian child, is to affirm the termination on the condition that
       the proper notification be provided. Only if it turns out the child is
       an Indian child and the tribe wants to intervene must the
       termination be reversed. Otherwise the termination stands.

3
  In spite of the father’s belated claim, the termination order stated: “As no information
has been presented to the Court to the contrary, the Court finds that the child is not an
Indian Child.” This was also noted as early as the April 2, 2014 order of pretrial
conference.
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              This solution is consistent with the mandate of the Iowa
       ICWA. The provisions of the Iowa ICWA do not apply until the
       court determines the children are “Indian” as defined in the Iowa
       ICWA. Therefore there can be no violation of the Iowa ICWA until
       the court determines it applies to the proceedings.

In re R.E.K.F., 698 N.W.2d 147, 150 (Iowa 2005) (citations omitted).

       Given this controlling case law, we need not grant the stay; rather, if we

agree termination was statutorily warranted, we will conditionally affirm the

termination and remand the case back to the district court for a determination of

the applicability of ICWA.

IV. Termination

       The mother and father both argue the district court improperly terminated

their rights under Iowa Code section 232.116(1)(d), (e), and (h), and the parent-

child bond consideration found in Iowa Code section 232.116(3)(c) precludes

termination; the mother further argues it is not in S.K.’s best interests to terminate

her rights because if she is granted more time she could care for S.K.

       To terminate rights pursuant to paragraph (h), the State must establish the

child is three years of age or younger, has been adjudicated a child in need of

assistance and removed from the physical custody of the parents for at least six

of the last twelve months, and there is clear and convincing evidence the child

cannot be returned to the custody of the parents at the present time. Iowa Code

§ 232.116(1)(h)(1)–(4).

       We agree with the juvenile court that termination of both parents’ right is

proper pursuant to paragraph (h). The parents’ addiction issues prevent S.K.

from being returned to their care. As the DHS report dated May 4, 2015, noted:

“[The mother] is presently not working. [The father] continues to report he is
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working at this time . . . . There has been a positive drug screen on both of the

parents. When [the mother] called to cancel the last visit she was very emotional

and talked very fast.” This record demonstrates S.K. cannot be returned to either

parent’s care; therefore, termination was proper under paragraph (h) as to both

the mother and the father. See Iowa Code § 232.116(1)(d)(4); see also In re

N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (noting the mother’s unresolved

addiction prevented her from being able to care for her child).

        Furthermore, termination of the parents’ rights is in S.K.’s best interests.

Neither parent has demonstrated a willingness to comply with services or made

substantial progress with regard to resolving their substance abuse issues. On

April 13, 2015, the father again tested positive for methamphetamine and the

DHS report dated April 7, 2015, noted the mother returned a recent, positive drug

screen. In determining the future actions of the parent, their past conduct is

instructive. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). It is clear the parents

are still active drug users, and it is in S.K.’s best interests to remain out of their

care.

        Additionally, the mother has received services since 2014 but has not

made the progress needed to show S.K. would be safe in her care, which

indicates that granting her more time would not resolve her issues. See id. We

further note that “[w]e have repeatedly followed the principle that the statutory

time line must be followed and children should not be forced to wait for their

parent to grow up.” In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998); see

also Iowa Code § 232.116(2). The record also reflects that no consideration

found in Iowa Code section 232.116(3) precludes termination, particularly given
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the fact S.K. has been out of the parents’ care for a significant length of time,

thus refuting the conclusion there is a strong parent-child bond. See Iowa Code

§ 232.116(3)(c). We further find it encouraging S.K. is thriving in foster care.

       Consequently, we conditionally affirm the district court’s termination order,

with instructions to remand so the court may consider the applicability of ICWA.

       BOTH APPEALS AFFIRMED ON CONDITION AND REMANDED.
