In re A.B.

• Court: Court of Appeals of Iowa
• Decided: January 24, 2018
• Docket: 17-1632
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-1632 Filed January 24, 2018

IN THE INTEREST OF A.B., Minor Child,

A.B., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda,

District Associate Judge.

A father appeals the termination of his parental rights. AFFIRMED.

Andrew J. Tullar of Tullar Law Firm, P.L.C., Des Moines, for appellant

father.

Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant

Attorney General, for appellee State.

Meegan M. Langmaid-Keller of Keller Law Office, P.C., Altoona, guardian

ad litem for minor child.

Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ. 2

POTTERFIELD, Judge.

A father appeals the termination of his parental rights to his child, A.B., born

in August 2015. The father’s rights were terminated pursuant to Iowa Code section

232.116(1)(b), (e), and (h) (2017).1 The father argues there is not clear and

convincing evidence to terminate parental rights on any of the three grounds for

termination, termination is not in the child’s best interests, and termination was not

appropriate because a relative has custody of A.B.

I. Background Facts and Proceedings.

In November 2015, a child-in-need-of-assistance (CINA) petition was filed

based upon the father’s domestic violence against the mother and both parents’

methamphetamine use. A no-contact order was issued between the father and

the mother. A.B. was adjudicated a CINA in February 2016 under Iowa Code

section 232.2(6)(b), (c)(2), and (n). The father did not attend the hearing and the

Iowa Department of Human Services (DHS) was unable to contact the father.

In March 2016, the father was arrested for possession of methamphetamine

and paraphernalia, interfering with official acts, and violating a no-contact order

with the mother. DHS was able to make contact with the father while he was in

jail. In April, the mother’s drug patch tested positive for methamphetamine, and

A.B. was removed from her care. A removal hearing was held in May; the father

was not present and his whereabouts were unknown. A dispositional hearing was

also held in May. Again, the father did not attend and could not be contacted by

DHS.

1 The State did not petition to terminate the mother’s parental rights. The child was placed with the mother at the time of the termination hearing. 3

The father was arrested in May 2016 for a probation violation, and DHS

contacted the father by phone in the jail. The father gave updated contact

information to the department, but when DHS followed up, a resident at the

address provided stated the father had not lived there for some time. DHS did not

locate the father again until he was arrested in July 2016, and DHS contacted him

in the jail.

The father was sentenced in September 2016. A.B. visited the father once

while he was in jail. This was the father’s first visit with the child since the beginning

of the proceedings in juvenile court. Because of the administrative policies of the

prison, DHS was not able to set up a visit with the father again until May 2017. At

the time of the termination hearing, A.B. had visited the father approximately six

times in prison. The father participated in the termination hearing by phone from

prison.

In November 2016, A.B. was returned to his mother’s care while she was

receiving inpatient drug treatment. The mother successfully completed her drug

treatment program and was released in February 2017. A.B. has remained in her

care since then.

The father’s rights were terminated in September 2017.

The father appeals.

II. Standard of Review.

We review the juvenile court’s decision to terminate de novo. In re M.W.,

876 N.W.2d 212, 219 (Iowa 2016). “Grounds for termination must be proven by

clear and convincing evidence.” In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).

“Our primary concern is the best interests of the child.” Id. 4

III. Discussion.

The juvenile court terminated the father’s parental rights pursuant to Iowa

Code section 232.116(1)(b), (e), and (h). The father contends that the

requirements of each section are not established by with clear and convincing

evidence. “We only need to find grounds to terminate parental rights under one of

the sections cited by the district court in order to affirm its ruling.” In re R.K., 649

N.W.2d 18, 19 (Iowa Ct. App. 2002).

Section 232.116(1)(h) provides that termination may be ordered when

“there is clear and convincing evidence that a child under the age of three who has

been adjudicated a CINA and removed from the parents’ care for at least the last

six consecutive months cannot be returned to the parents’ custody at the time of

the termination hearing.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010); accord

Iowa Code § 232.116(1)(h).

Here, A.B. is two years old, has been removed from the father’s care for

seventeen consecutive months, and could not be returned to the father’s custody

at the time of the termination hearing. The father argues because he is in the

process of being paroled, A.B. could be returned the child to his care in the

foreseeable future. The relevant time frame for returning to his father’s care was

at the time of the termination hearing, not at some point in the foreseeable future.

See In re D.W., 791 N.W.2d at 707. “We do not ‘gamble with the children’s future’

by asking them to continuously wait for a stable biological parent, particularly at

such tender ages.” Id. (citation omitted). Clear and convincing evidence supports

termination on this ground. 5

Next, the father argues that termination is not in A.B.’s best interests. See

Iowa Code § 232.116(2). In reaching our conclusion, we must “give primary

consideration to the child’s safety, to the best placement for furthering the long-

term nurturing and growth of the child, and to the physical, mental, and emotional

condition and needs of the child.” Id. The father is currently incarcerated and has

a history of domestic violence towards the mother. There is no significant bond

between the father and A.B.; they have had minimal contact. The father is not in

a position to provide physical, mental, or emotional care for the child. Termination

is in A.B.’s best interests.

Finally, the father argues the juvenile court erred when it declined to

preserve the father’s parental rights under Iowa Code section 232.116(3)(a), which

allows the court to continue the parent-child relationship if a relative has legal

custody of the child. The father argues there is no urgency in making a

permanency decision because A.B. lives with his mother. Section 232.116(3)(a)

is permissive, not mandatory. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App.

1997), overruled on other grounds by In re P.L., 778 N.W.2d 33 (Iowa 2010). The

father made little effort to engage in services before his incarceration, and there is

no strong connection between him and the child.

The juvenile court found termination to be in the best interests of A.B. to

avoid future uncertainty. Our legislature has limited the period in which parents

can demonstrate they are capable of parenting. In re J.E., 723 N.W.2d at 800.

“The crucial days of childhood cannot be suspended while parents 6

experiment with ways to face up to their own problems.” In re A.C., 415 N.W.2d

609, 613 (Iowa 1987). Permanency and stability are in A.B.’s best interests.

AFFIRMED.