In the Interest of A.R., Minor Child

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1551 Filed December 7, 2022

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

C.R., Father, Appellant ________________________________________________________________

Appeal from the Iowa District Court for Butler County, Peter B. Newell,

District Associate Judge.

A father contests the termination of his parental rights to his now three-year-

old son. AFFIRMED.

Mark A. Milder, Denver, for appellant father.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Elizabeth Batey of Vickers Law Office, Greene, attorney and guardian ad

litem for minor child.

Considered by Tabor, P.J., and Schumacher and Chicchelly, JJ. 2

TABOR, Presiding Judge.

Christopher refused to acknowledge “how his domestic violence, mental

health issues, and substance abuse created a danger to his child’s safety.”

Focusing on that refusal, the juvenile court terminated Christopher’s parental

relationship with A.R. Appealing termination, Christopher contends the State did

not prove its case and did not meet its reasonable-efforts mandate. See Iowa

Code § 232.116(1) (2022). He also believes that termination is not in A.R.’s best

interests. See id. § 232.116(2). And he urges us to apply the factors in paragraphs

(a) and (c) of section 232.116(3) to avoid termination. Finally, he claims

termination violates his due process rights because A.R.’s mother, who retained

her parental rights, favored preserving the father-son relationship. Alternatively,

he asks for a six-month delay in permanency. After an independent review, we

affirm the juvenile court’s thorough and well-reasoned termination order.1

I. Facts and Prior Proceedings

Four-month-old A.R. was present when his father assaulted his mother. In

February 2020, police were dispatched to the family’s home after Christopher

struck A.R.’s mother in the face and threw her down. She nearly landed on the

infant. Based on those facts, child protective services released a founded report

documenting denial of critical care.2 A few months later, the court adjudicated A.R.

1 We review termination proceedings de novo. In re L.B., 970 N.W.2d 311, 313 (Iowa 2022). We respect the juvenile court’s factual findings, but they do not dictate our result. Id. The State must prove the grounds for termination by clear and convincing evidence. Id. 2 This incident was not Christopher’s first case of child abuse. Allegations of

domestic violence and substance abuse led to founded reports involving his other children in 2009 and 2016. 3

as a child in need of assistance. Although the Iowa Department of Health and

Human Services was concerned about the mother’s mental health and the parents’

poor “relationship skills,” the court did not remove A.R. from their custody.

That is, not until January 2021, when Christopher smashed a beer can

against the mother’s head and strangled her until she nearly passed out. The

mother lost a tooth in the assault. A.R. was again present during the domestic

abuse. Christopher’s violence prompted the court to remove A.R. from his

custody.3 And a no-contact order prevented Christopher from interacting with

A.R.’s mother. A.R. stayed with his mother, who moved in with her parents.

But when the mother requested—over the department’s objection—that the

no-contact order be lifted in July 2021, the juvenile court saw a clear danger to

A.R. So the court removed the child from the mother’s custody and placed him

with the maternal grandparents. That placement too was short-lived. The

department moved A.R. into foster care in October 2021 because the grandparents

could not set boundaries for the parents.

As the new year began, the department viewed the ongoing “toxic”

relationship between the parents as the main barrier to bringing A.R. home. In

March 2022, the father challenged the department’s reasonable efforts toward

reunification. After an evidentiary hearing, the court found the department was

meeting its reasonable-efforts mandate. Instead, the court laid the blame for

continued removal at Christopher’s feet. He did not cooperate with the

3 The court also ordered both of A.R.’s parents to undergo drug testing. 4

department’s directives to avoid contact with A.R.’s mother. He did not address

his mental-health issues, and he struggled to tamp down his anger and aggression.

On a positive note, by the time of the permanency hearing in May 2022, the

mother had achieved steady progress in her mental-health and substance-abuse

treatment. Not so for Christopher. He did not sign releases for the department to

monitor his substance-abuse treatment, despite testing positive for

methamphetamine and THC in April 2022. His moods remained volatile, and he

persisted in manipulating A.R.’s mother. In response to the parents’ divergent

situations, the department recommended reunification with the mother as the

permanency goal for A.R. By contrast, the court directed the State to petition to

terminate Christopher’s parental rights. After the State filed that petition,

Christopher asked to meet alone with the department case manager. Christopher

was “very, very upset” and kept interrupting her. The case manager described that

“uncomfortable” encounter:

You could see the anger in his face and his eyes. . . . [H]e was visibly shaking. His lips were quivering. . . . [H]e was clenching his fists. . . . [A]t one point I remember wondering should I maybe leave, . . . but I just continued to sit there and listen to what he had to say.

The juvenile court held trial on the State’s petition across three days during

the summer of 2022. The case manager was a key witness for the State. She

testified that Christopher’s pattern of domestic violence prevented him from co-

parenting A.R. In her view, Christopher continued to “exert manipulation and

control” over A.R.’s mother, even when there was no physical violence. The case

manager expressed concern that Christopher refused to recognize how domestic 5

violence affected his son. She also discussed the risk to a child from a parent’s

methamphetamine use.

In its September order, the court terminated Christopher’s rights under Iowa

Code section 232.116(1), paragraphs (h) and (l). Christopher appeals that order.

II. Analysis

In most termination cases, we ask three questions. In re A.S., 906 N.W.2d

467, 472 (Iowa 2018). First, did the State prove a ground for termination

under section 232.116(1)? Id. at 472–73. Second, if so, is terminating parental

rights in the child’s best interests measured by the criteria in section

232.116(2)? Id. And third, is there a countervailing factor in section 232.116(3)

that would weigh against termination? Id. We examine each question in turn.

A. Statutory Ground/Reasonable Efforts

Christopher contends the juvenile court erred in terminating his parental

rights under paragraphs (h) and (l) of section 232.116(1). We may affirm on either

ground if supported by clear and convincing evidence. In re A.B., 815 N.W.2d 764,

774 (Iowa 2012). We pick paragraph (h). To satisfy that ground, the State needed

to prove by clear and convincing evidence:

(1) The child is three years of age or younger. (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (3) 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. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time. 6

Iowa Code § 232.116(1)(h); see In re D.W., 791 N.W.2d 703, 707 (Iowa 2010)

(interpreting “at the present time” to mean “at the time of the termination hearing”).

In challenging the fourth element, Christopher contends “there is insufficient

evidence to show that any of the issues alleged to exist concerning the father have

had any impact on his ability to provide safe care for this child.”

We disagree with his contention. In fact, his appellate argument echoes his

failure to acknowledge responsibility in the juvenile court. Christopher minimizes

his abusive acts and denies their impact on A.R. He insists A.R. did not suffer “any

direct harm at the hands of his father.” This line of argument fundamentally

misconstrues the menace of domestic violence.4 As we have recognized:

“Children raised in homes touched by domestic abuse are often left with deep

scars, revealed in the form of increased anxiety, insecurity and a greater likelihood

for later problems in interpersonal relationships.” In re Marriage of Brainard, 523

N.W.2d 611, 615 (Iowa Ct. App. 1994). Violence in the home also puts the children

themselves in harm’s way. See id. Because Christopher lacks insight into the

danger posed by his domestic abuse, A.R. cannot be safely returned to his

custody. Termination was proper under paragraph (h).

Christopher also contends that the department did not make reasonable

efforts at reunification.5 See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000) (“[T]he

4 Christopher also belittles the case manager’s feeling of intimidation when meeting alone with him, blaming their “severely damaged” working relationship. What he fails to recognize is that his hostility caused the damage. A parent’s inability to act with civility toward professionals working on their case is a relevant consideration when determining whether that parent is ready to resume custody. See In re M.P., No. 19-0995, 2019 WL 5063337, at *4 (Iowa Ct. App. Oct. 9, 2019). 5 The State argues Christopher should have raised this claim when objecting to

termination. But we find that his motion for reasonable efforts preserved error. 7

reasonable efforts requirement is not viewed as a strict substantive requirement of

termination. Instead, [it] . . . impacts the [State’s] burden of proving the elements

of termination which require reunification efforts.”). The department must “make

every reasonable effort to return the child to the child’s home as quickly as possible

consistent with the best interests of the child.” Id. (citation omitted).

Christopher claims reasonable efforts were lacking because the department

mandated fully supervised interactions through early 2022 though he alleges being

substance free for months. But the department had legitimate reasons not to

expand visitation. Christopher failed to take responsibility for his acts of violence

and failed to release information about his mental-health or substance-abuse

treatment. Given his own recalcitrance, Christopher’s reasonable-efforts

challenge fails.

B. Best Interests

Christopher argues that termination is not in A.R.’s best interests because

they have a strong bond and the child is healthy and happy. His argument

overlooks the structure of Iowa Code section 232.116(2). See In re P.L., 778

N.W.2d 33, 40–41 (Iowa 2010). That provision considers the child’s safety, as well

as the best placement for furthering his “long-term nurturing and growth” and his

“physical, mental, and emotional condition and needs.” Iowa Code § 232.116(2).

Applying that framework, we find terminating Christopher’s parental rights will

promote a safer environment for A.R. His future will be brighter without the specter

of a parent engaging in domestic violence and methamphetamine use. 8

C. Countervailing Factors

Once the State has proven grounds for termination, the burden shifts to the

parent to prove a permissive exception under section 232.116(3). See A.S., 906

N.W.2d at 475–76.

Christopher contends his rights should not have been terminated because

a relative has legal custody of A.R. See Iowa Code § 232.116(3)(a). He insists

“there is little to gain and much to lose” by terminating the rights of one parent

when the child remains with the other parent. The State counters that this

exception does not apply because A.R. was in the custody of the department “at

all relevant times.” See In re A.M., 843 N.W.2d at 103, 106, 113 (noting exception

did not cover grandparents taking care of child when department had legal

custody). We agree with the State’s position. But even if the mother had legal

custody of A.R., Christopher’s pattern of domestic abuse would tilt the scales away

from applying this exception.

Christopher next argues that termination was improper because all parties

agree that he has a “very strong bond” with A.R. See A.S., 906 N.W.2d, at 476.

That provision allows a court to preserve parental rights if clear and convincing

evidence shows that the termination would harm the child given the closeness of

the parent-child relationship. Iowa Code § 232.116(3)(c). True, the record shows

a close bond between father and son. But the record also shows that A.R. forms

bonds easily and “has a solid attachment to other caregivers.” In this

circumstance, any disadvantage from severing the tie to Christopher will be

mitigated by A.R.’s ability to develop other supportive relationships. 9

D. Due Process

Next Christopher emphasizes his “fundamental liberty interest in the care,

custody and control” of his child. Troxel v. Granville, 530 U.S. 57, 65–66 (2000).

He points out that the mother’s rights were not terminated and that she favors

preserving his relationship with A.R. From there, Christopher contends terminating

his rights “goes well beyond what was necessary and interfered with these parents’

constitutional rights to raise their family as they see fit.”

We read Christopher’s claim as one of substantive due process. When a

party alleges that specific government conduct violates substantive due process,

we apply the shocks-the-conscience standard to assess the claim. Lennette v.

State, 975 N.W.2d 380, 393–94 (Iowa 2022). Nothing in this record signals that

kind of egregious governmental abuse. The department acted on reasonable

evidence that Christopher’s conduct posed a risk to his young son. Christopher

cannot show a due process violation.

Moreover, Christopher cannot rest his argument for reversal on the court’s

preservation of the mother’s rights. He must advance his own reasons, separate

from those facts supporting the mother, to overcome termination. In re D.G., 704

N.W.2d 454, 460 (Iowa Ct. App. 2005). His petition on appeal does not meet that

standard.

E. Six-Month Deferral of Permanency

As an alternative to termination, Christopher asks for more time to correct

the deficiencies in his parenting. Under section 232.117(5), the juvenile court may

delay permanency for up to six months as an alternative to terminating parental

rights. See In re N.J., No. 19-1999, 2020 WL 2988237, at *3 (Iowa Ct. App. June 10

3, 2020). A reprieve is appropriate if the court can point to “specific factors,

conditions, or expected behavioral changes” that justify believing the need for

removal from parental care would no longer exist after that time. Iowa Code

§ 232.104(2)(b). But no such conditions emerge here. Christopher still struggles

with methamphetamine use. And despite his engagement with services, he

refuses to recognize the power-and-control issues in his relationship with A.R.’s

mother or to control his anger and frustration. Under these circumstances, a six-

month extension was not warranted.

Finding no grounds for reversal, we affirm the termination of Christopher’s

parental rights.

AFFIRMED.