IN THE COURT OF APPEALS OF IOWA
No. 18-0133 Filed March 21, 2018
IN THE INTEREST OF A.I., F.I., and F.I., Minor Children,
A.I., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,
District Associate Judge.
The father appeals the termination of his parental rights. AFFIRMED.
Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for appellant
father.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Brent M. Pattison and Brooke Thompson (student attorney) of Drake Legal
Clinic, Des Moines, guardians ad litem for minor children.
Paul L. White of Juvenile Public Defender Office, Des Moines, attorney for
A.I.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ. 2
POTTERFIELD, Judge.
The father appeals the termination of his parental rights to his three children,
A.I, born in 2003; F.I., born in 2006; and F.I., born in 2012.1 The juvenile court
terminated the father’s parental rights to all three children pursuant to Iowa Code
section 232.116(1)(f) (2017). We review termination-of-parental-rights
proceedings de novo. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018).
The juvenile court may terminate a parent’s rights pursuant to subsection
(f) when the court finds that all the following have occurred:
(1) The child is four years of age or older. (2) The child has been adjudicated a child in need of assistance [(CINA)] pursuant to section 232.96. (3) The child has been removed from the physical custody of the child’s parents for at least twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child's parents as provided in section 232.102.
Iowa Code § 232.116(1)(f).
Although he states in passing that the juvenile court “erred in finding that
the State had proven certain grounds for termination under Iowa Code section
232.116(1),” the father does not specifically dispute any of the statutory grounds.
Our review of the record establishes that at the time of the termination hearing, the
children were ages fourteen, eleven, and five; had been adjudicated CINA, and
had been removed from their parents’ care for fifteen months. Additionally, the
father conceded at the termination hearing that the children could not be returned
to his care as he was then incarcerated for a probation violation and “still [had]
1 The mother’s parental rights were also terminated. She does not appeal. 3
issues to work on before the children [could] be placed in [his] care.” The statutory
grounds for termination have been proved by clear and convincing evidence.
Next, the father maintains termination of his parental rights was not in the
children’s best interests because of his bond with the children2 and his commitment
to his sobriety. At the time of the termination hearing, the father had not seen A.I.
in over six months and had not seen the youngest two children in almost five
months. He had been jailed for probation violations four times in the year leading
up to the termination hearing, and he admitted ongoing criminal behavior, including
daily use of methamphetamine until November 21—approximately two weeks
before the hearing. He also admitted he had contact with the mother in violation
of a no-contact order that was entered following a felony conviction for perpetrating
domestic violence against the mother. Although substance abuse and domestic
violence were identified as issues for the father at the time the Iowa Department
of Human Services got involved in September 2016, the father had yet to even
begin a domestic-violence course or a substance-abuse program. Additionally,
the father was on probation with a two-year suspended sentence, and it was
unclear whether he would be allowed to remain on probation due to his recent
violation. In giving “primary consideration to the child[ren]’s safety, to the best
placement for furthering the long-term nurturing and growth of the child[ren], and
to the physical, mental, and emotional condition and needs of the child[ren],”
2 While the father relies on his bond with the children to argue that termination of his parental rights is not in their best interests, this argument is more appropriately made under the permissive factors of subsection (3). See Iowa Code § 232.116(3)(c) (stating the “court need not terminated the relationship between the parent and the child” if it finds “that the termination would be detrimental to the child at the time due to the closeness of the parent-child relationship”). 4
termination of the father’s parental rights is in these children’s best interests. See
Iowa Code § 232.116(2).
Next, the father maintains the court should have exercised its discretion to
save the parent-child relationship because the children were in the legal custody
of relatives. See Iowa Code § 232.116(3)(a). Although a relative having legal
custody of the children “allows the court to avoid terminating parental rights, . . .
the factors ‘are permissive, not mandatory.’” A.S., 906 N.W.2d at 475 (quoting In
re A.M., 843 N.W.2d 100, 113 (Iowa 2014)). “[T]he parent resisting termination
bears the burden to establish an exception to termination under Iowa Code section
223.116(3)(a).” Id. at 476; accord Iowa R. App. P. 6.904(3)(e) (“Ordinarily, the
burden of proof of an issue is upon the party who would suffer loss if the issue
were not established.”). The father has not met his burden of establishing that this
is an appropriate case to save the parent-child relationship; the father has not had
recent contact with the children and continues to struggle with criminality and drug
abuse. Additionally, according to A.I.’s attorney, A.I. supported the termination of
the father’s parental rights.
Alternatively, the father maintains the court should have placed the children
in a guardianship rather than terminating his parental rights. Although the father
testified he would “support a guardianship with relatives with regard to the[]
children,” no other evidence regarding a guardianship was presented at the
hearing. We have no suggestion of the person the father believed should take on
the guardianship, nor whether any family member was appropriate and willing to
do so. Additionally, the children’s guardians ad litem (GAL) supported the State’s
petition to terminate the father’s parental rights, stating, “We don’t have any 5
independent evidence to offer in support of the [termination petition], but we
support the State’s petition and think it’s time for the kids to kind of obtain
permanency through termination of parental rights and the opportunity to be
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IN THE COURT OF APPEALS OF IOWA
No. 18-0133 Filed March 21, 2018
IN THE INTEREST OF A.I., F.I., and F.I., Minor Children,
A.I., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,
District Associate Judge.
The father appeals the termination of his parental rights. AFFIRMED.
Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for appellant
father.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Brent M. Pattison and Brooke Thompson (student attorney) of Drake Legal
Clinic, Des Moines, guardians ad litem for minor children.
Paul L. White of Juvenile Public Defender Office, Des Moines, attorney for
A.I.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ. 2
POTTERFIELD, Judge.
The father appeals the termination of his parental rights to his three children,
A.I, born in 2003; F.I., born in 2006; and F.I., born in 2012.1 The juvenile court
terminated the father’s parental rights to all three children pursuant to Iowa Code
section 232.116(1)(f) (2017). We review termination-of-parental-rights
proceedings de novo. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018).
The juvenile court may terminate a parent’s rights pursuant to subsection
(f) when the court finds that all the following have occurred:
(1) The child is four years of age or older. (2) The child has been adjudicated a child in need of assistance [(CINA)] pursuant to section 232.96. (3) The child has been removed from the physical custody of the child’s parents for at least twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child's parents as provided in section 232.102.
Iowa Code § 232.116(1)(f).
Although he states in passing that the juvenile court “erred in finding that
the State had proven certain grounds for termination under Iowa Code section
232.116(1),” the father does not specifically dispute any of the statutory grounds.
Our review of the record establishes that at the time of the termination hearing, the
children were ages fourteen, eleven, and five; had been adjudicated CINA, and
had been removed from their parents’ care for fifteen months. Additionally, the
father conceded at the termination hearing that the children could not be returned
to his care as he was then incarcerated for a probation violation and “still [had]
1 The mother’s parental rights were also terminated. She does not appeal. 3
issues to work on before the children [could] be placed in [his] care.” The statutory
grounds for termination have been proved by clear and convincing evidence.
Next, the father maintains termination of his parental rights was not in the
children’s best interests because of his bond with the children2 and his commitment
to his sobriety. At the time of the termination hearing, the father had not seen A.I.
in over six months and had not seen the youngest two children in almost five
months. He had been jailed for probation violations four times in the year leading
up to the termination hearing, and he admitted ongoing criminal behavior, including
daily use of methamphetamine until November 21—approximately two weeks
before the hearing. He also admitted he had contact with the mother in violation
of a no-contact order that was entered following a felony conviction for perpetrating
domestic violence against the mother. Although substance abuse and domestic
violence were identified as issues for the father at the time the Iowa Department
of Human Services got involved in September 2016, the father had yet to even
begin a domestic-violence course or a substance-abuse program. Additionally,
the father was on probation with a two-year suspended sentence, and it was
unclear whether he would be allowed to remain on probation due to his recent
violation. In giving “primary consideration to the child[ren]’s safety, to the best
placement for furthering the long-term nurturing and growth of the child[ren], and
to the physical, mental, and emotional condition and needs of the child[ren],”
2 While the father relies on his bond with the children to argue that termination of his parental rights is not in their best interests, this argument is more appropriately made under the permissive factors of subsection (3). See Iowa Code § 232.116(3)(c) (stating the “court need not terminated the relationship between the parent and the child” if it finds “that the termination would be detrimental to the child at the time due to the closeness of the parent-child relationship”). 4
termination of the father’s parental rights is in these children’s best interests. See
Iowa Code § 232.116(2).
Next, the father maintains the court should have exercised its discretion to
save the parent-child relationship because the children were in the legal custody
of relatives. See Iowa Code § 232.116(3)(a). Although a relative having legal
custody of the children “allows the court to avoid terminating parental rights, . . .
the factors ‘are permissive, not mandatory.’” A.S., 906 N.W.2d at 475 (quoting In
re A.M., 843 N.W.2d 100, 113 (Iowa 2014)). “[T]he parent resisting termination
bears the burden to establish an exception to termination under Iowa Code section
223.116(3)(a).” Id. at 476; accord Iowa R. App. P. 6.904(3)(e) (“Ordinarily, the
burden of proof of an issue is upon the party who would suffer loss if the issue
were not established.”). The father has not met his burden of establishing that this
is an appropriate case to save the parent-child relationship; the father has not had
recent contact with the children and continues to struggle with criminality and drug
abuse. Additionally, according to A.I.’s attorney, A.I. supported the termination of
the father’s parental rights.
Alternatively, the father maintains the court should have placed the children
in a guardianship rather than terminating his parental rights. Although the father
testified he would “support a guardianship with relatives with regard to the[]
children,” no other evidence regarding a guardianship was presented at the
hearing. We have no suggestion of the person the father believed should take on
the guardianship, nor whether any family member was appropriate and willing to
do so. Additionally, the children’s guardians ad litem (GAL) supported the State’s
petition to terminate the father’s parental rights, stating, “We don’t have any 5
independent evidence to offer in support of the [termination petition], but we
support the State’s petition and think it’s time for the kids to kind of obtain
permanency through termination of parental rights and the opportunity to be
adopted.” See, e.g., A.S., 906 N.W.2d at 476 (giving weight to the GAL’s testimony
recommending termination of parental rights). We cannot say the juvenile court
should have established a guardianship for these children.
Finally, the father maintains the juvenile court should have granted his
request for a six-month extension to achieve reunification with the children. The
court may grant an extension only when it determines “that the need for removal
of the child from the child’s home will no longer exist at the end of the additional
six-month period.” Iowa Code § 232.104(2)(b). Here, the father has not made any
strides in the fifteen months that the children have been removed from his care.
Although he has completed a number of substance-abuse evaluations, he has yet
to begin a treatment program. He also has not sought any help dealing with his
history of perpetrating domestic violence and admitted that he has been in contact
with the mother in violation of the no-contact order. While the father testified
alcohol was his “drug of choice,” he also admitted that he had been using
methamphetamine daily until two weeks earlier. Moreover, it remained unclear
whether he would be allowed to remain on probation or be forced to serve his
suspended two-year sentence in prison. Nothing in the record indicates that the
father would be in a position to care for the children in six months; we agree with
the district court’s decision to deny the father’s request for an extension. 6
For all the foregoing reasons, we affirm the termination of the father’s
parental rights to A.I., F.I., and F.I.
AFFIRMED.