In the Interest of A.M., Minor Child

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-1225 Filed November 6, 2019

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

C.M., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Dickinson County, David C. Larson,

District Associate Judge.

A father appeals the juvenile court order terminating his parental rights.

AFFIRMED.

Michael H. Johnson, Spirit Lake, for appellant father.

Thomas J. Miller, Attorney General, and Anna T. Stoeffler (until withdrawal)

and Mary A. Triick, Assistant Attorneys General, for appellee State.

Pamela Wingert of Wingert Law Office, Spirit Lake, attorney and guardian

ad litem for minor child.

Considered by Potterfield, P.J., Greer, J., and Gamble, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2

GAMBLE, Senior Judge.

A father appeals the juvenile court order terminating his parental rights. We

conclude the father waived his claim the State did not engage in reasonable efforts

to reunite him with the child, there is sufficient evidence in the record to support

termination, the juvenile court properly denied the father’s request for additional

time, and termination is in the child’s best interests. We affirm the decision of the

juvenile court.

I. Background Facts & Proceedings

C.M., father, and P.D., mother, are the parents of A.M., born in 2017. The

child tested positive for marijuana at birth, and both parents admitted marijuana

use. On July 5, 2017, the juvenile court adjudicated the child to be in need of

assistance (CINA), pursuant to Iowa Code section 232.2(6)(a), (c)(2), and (n)

(2017). The parents voluntarily placed the child with the maternal great-

grandmother in August based on the father’s continued use of alcohol and an

arrest for third-degree assault.

In April 2018, Iowa Department of Human Services (DHS) temporarily

placed the child in the father’s care. The father completed a substance-abuse

treatment program in May. After this, the mother reported seeing the father drink

beer. On June 5, while the children were in his custody in his apartment, the father

decided to clean a sawed-off shotgun after taking an Ambien and drinking alcohol.

The gun accidentally discharged near a portable crib in the father’s bedroom.

Although he previously admitted to a neighbor that he was drinking prior to the

gunshot, he now denies drinking and claims the neighbor misunderstood him.

Nevertheless, the father admits using prescription Ambien prior to discharging the 3

weapon, and it is undisputed he was prohibited from having guns in the home due

to prior convictions for domestic abuse. The juvenile court returned the child to the

care of the maternal great-grandmother.

The father’s landlord evicted him from his apartment after the gunshot

incident. Police charged the father with public intoxication on June 15. The father

moved to his current apartment on June 20. There was a hole in the ceiling in the

bathroom. The apartment was unsuitable for visitation until the ceiling was

repaired shortly before the termination hearing.

On November 6, the State filed a petition seeking to terminate the parents’

rights. The father had a new substance-abuse evaluation, which recommended

follow-up treatment. The father contacted a counselor, who did not return his call,

and the father did not do any more to seek treatment. He attended a few AA or

NA meetings.

The juvenile court terminated the father’s parental rights under section

232.116(1)(h) (2018).1 The court found the child could not be safely returned to

the father’s care on a long-term basis. The court determined the State had

engaged in reasonable efforts to reunite the child with the father. The court

concluded termination of the father’s parental rights was in the child’s best interests

based on the child’s need for permanency. Additionally, the court concluded none

of the statutory exceptions to termination should be applied. Furthermore, the

court denied the father’s request for additional time. The father appeals the

termination of his parental rights.

1 The mother’s parental rights were also terminated. She did not appeal. 4

II. Standard of Review

Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d

764, 773 (Iowa 2012). “‘Clear and convincing evidence’ means there are no

serious or substantial doubts as to the correctness [of] conclusions of law drawn

from the evidence.” In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citation omitted).

Our primary concern is the best interests of the child. In re J.S., 846 N.W.2d 36,

40 (Iowa 2014).

III. Reasonable Efforts

The father claims the State did not make reasonable efforts to reunite him

with his child. The father asserts the State should have increased his visitation.

He testified that he asked social workers to have overnight visits in his home.

“[W]here the elements of termination require reasonable efforts by DHS, the

scope of DHS’s efforts after removal impacts the burden of proving those

elements.” In re L.T., 924 N.W.2d 521, 527 (Iowa 2019). “Thus, ‘[t]he State must

show reasonable efforts as a part of its ultimate proof the child cannot be safely

returned to the care of a parent.’” Id. (alteration in original) (citation omitted). “The

reasonable efforts concept would broadly include a visitation arrangement

designed to facilitate reunification while protecting the child from the harm

responsible for the removal.” In re L.M., 904 N.W.2d 835, 839 (Iowa 2017) (citation

omitted).

A parent must raise a challenge to the services offered by the State prior to

the termination hearing, or the challenge is waived. In re T.S., 868 N.W.2d 425,

442 (Iowa Ct. App. 2015). “Complaints regarding services are properly raised ‘at

removal, when the case permanency plan is entered, or at later review hearings.’” 5

Id. (quoting In re C.H., 652 N.W.2d 144, 148 (Iowa 2002)). Additionally, “voicing

complaints regarding the adequacy of services to a social worker is not sufficient.

A parent must inform the juvenile court of such challenge.” C.H., 652 N.W.2d at

148. The father did not testify he had alerted the juvenile court to his request for

increased visitation. The father did not file a motion for reasonable efforts or any

similar request regarding visitation during the CINA proceedings.

Furthermore, even if the father had properly challenged the reasonableness

of the State’s efforts to reunite him with his child, we conclude the efforts made

were reasonable based on the circumstances of the case. See In re S.J., 620

N.W.2d 522, 525 (Iowa 2000) (“[W]e conclude the department must assess the

nature of its reasonable efforts obligation based on the circumstances of each

case.”). The trial home placement in the father’s home was unsuccessful. After

the shooting incident, the father was evicted from his apartment and his new

residence was not suitable for visitation until shortly before the termination hearing.

IV. Sufficiency of the Evidence

The father asserts there is not sufficient evidence in the record to warrant

termination of his parental rights. He first claims the child was not removed from

his home for the requisite period of time under section 232.116(1)(h)(3). Section

232.116(1)(h)(3) applies when “the child has been removed from the physical

custody of the child’s parents for at least six months of the last twelve months, or

for the last six consecutive months and any trial period at home has been less than

thirty days.” (Emphasis added). We have previously stated, “Given the presence

of a comma in the statute before the word ‘or,’ we think it is reasonable to conclude

that the subsequent language ‘and any trial period at home has been less than 6

thirty days’ applies to and qualifies only the language after the comma.” In re

D.M.J., 780 N.W.2d 243, 246 (Iowa Ct. App. 2010). The child was out of the

father’s care for at least six of the twelve months before the termination hearing,

and we conclude the provision in section 232.116(1)(h)(3) has been satisfied.

The father also claims there is not clear and convincing evidence in the

record to show the child could not be returned to his care under section

232.116(1)(h)(4). The child was temporarily placed in the father’s care but while

under the influence of Ambien, and perhaps alcohol, the father accidentally

discharged a sawed-off shotgun, and the shot entered the wall near the crib. The

father was not supposed to have any firearms because of his previous domestic

abuse charges. The father admitted the incident was a mistake and presented a

serious risk to the child. After the incident, the father had a new substance-abuse

evaluation but did not follow up on getting treatment. He stated he knew the DHS

safety plan provided he was not supposed to drink alcohol, but he also stated he

thought it was fine to drink occasionally.

We conclude the child could not be safely returned to the father’s care. The

father has not successfully addressed his substance-abuse problems. His failure

to provide a safe residence in the past is predictive that he will fail to do so in the

future.

V. Extension of Time

The father contends the juvenile court should have given him additional time

to work on reunification with the child. He claims the child could be returned to his

care within a reasonable period of time. Under section 232.117(5), the juvenile

court may order an extension of time under section 232.104 as an alternative to 7

terminating parental rights. A six-month extension may be granted based on a

“determination 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). The juvenile court determined, “the time for continuing with

reunification efforts has come to an end.” We agree with the court’s conclusion

the child needed permanency and it was not in the child’s best interests to further

extend this case.

VI. Best Interests

The father contends it is not in the child’s best interests to terminate his

parental rights. In considering the best interests of a child, we “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.” In re P.L., 778 N.W.2d 33, 40 (Iowa 2010)

(quoting Iowa Code § 232.116(2)). “It is well-settled law that we cannot deprive a

child of permanency after the State has proved a ground for termination under

section 232.116(1) by hoping someday a parent will learn to be a parent and be

able to provide a stable home for the child.” Id. at 41. The father has not taken

the steps needed to be in a position to meet the child’s needs. The child needs a

stable and permanent placement. We determine that termination of the father’s

parental rights is in the child’s best interests.

We affirm the decision of the juvenile court.