In the Interest of E.W. and H.W., Minor Children

• Court: Court of Appeals of Iowa
• Decided: December 20, 2023
• Docket: 23-1644
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1644 Filed December 20, 2023

IN THE INTEREST OF E.W. and H.W., Minor Children,

C.W., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Crawford County, Kristal L. Phillips,

District Associate Judge.

A father appeals the termination of his parental rights to his two children.

AFFIRMED.

Dean A. Fankhauser of Tigges, Bottaro & Lessmann, LLP, Sioux City, for

appellant father.

Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney

General, for appellee State.

Ryan Gaskins of Boerner & Goldsmith Law Firm, PC, Ida Grove, attorney

and guardian ad litem for minor children.

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

CHICCHELLY, Judge.

A father appeals the termination of his parental rights to his twins. He

contends the State failed to prove both the grounds for termination and that

termination is in the children’s best interests. Upon our review, we affirm the

termination of the father’s parental rights.

I. Background Facts and Proceedings.

The Iowa Department of Health and Human Services removed E.W. and

H.W. from their parents’ custody just five days after their birth in August 2022. The

Department had concerns about the parents’ ability to feed the babies and notice

hunger cues, the children’s withdrawal symptoms at birth, and the father’s behavior

at the hospital. Specifically, when discussing paternity, the father became

agitated, and security had to be called. He later told the Department he had

“blackout episodes in response to stressful situations.”

After removal, the parents were initially given supervised visitation at their

shared home. During one visit, the Family Centered Services worker reported the

father struggled to recognize when the children were hungry and became “verbally

aggressive” upon discussing bottle and feeding issues. Visits were moved to the

community based on these concerns and the poor state of the home.

In September 2022, the children were adjudicated in need of assistance. In

October, the father was charged with second-degree sexual abuse, for allegedly

abusing the mother’s four-year-old daughter. He was held in jail for approximately

six months, but he was eventually released on bond and moved to Nebraska to

live with his sister. While living there, the Department had concerns about the

father’s stability because of his changing romantic relationships and inconsistency 3

with services and visitation. He also failed to secure adequate mental-health

services and was hospitalized for anxiety. After the hospitalization, the father told

the Department he had decided to voluntarily terminate his parental rights to the

children and declined further services.1

On March 27, 2023, the father pled guilty to the lesser charge of enticing a

minor for sexual purposes. The district court later sentenced him to an

indeterminate term of incarceration not to exceed five years. Notwithstanding this

turn of events, at the termination hearing the father claimed he was innocent and

only pled guilty to protect the minor victim from the trauma of the proceedings. By

the termination hearing on August 3, the father testified he was attempting return

to Nebraska through an interstate compact. He estimated he would be released

from prison within two to three months.

Following the termination hearing, the juvenile court terminated the father’s

parental rights, and he appealed.2

II. Review.

Our review of termination proceedings is de novo. See In re Z.K., 973

N.W.2d 27, 32 (Iowa 2022). “We are not bound by the juvenile court’s findings of

fact, but we do give them weight, especially in assessing the credibility of

witnesses.” Id. (quoting In re D.W., 791 N.W.2d 703, 706 (Iowa 2010)).

1 While he does not dispute this occurred, the father presents an alternative narrative. He told the Department that he was doing well in Nebraska, operating his own lawncare business, and working on obtaining reliable transportation. He also testified there were more services and family support available for both him and the children there, and he only missed recent visits because of transportation issues. He also claimed he requested services from the Department that were never fulfilled, such as car repairs or gas cards. 2 The mother’s rights were also terminated, but she does not appeal. 4

III. Grounds for Termination of the Father’s Rights.

The juvenile court found statutory grounds authorizing termination satisfied,

pursuant to Iowa Code section 232.116(1)(e) and (h) (2023), and determined

termination to be in the children’s best interests. The father argues that the State

failed to establish grounds for termination under section 232.116(1)(e), but he

neglects to address section 232.116(1)(h). We may affirm the termination of

parental rights on any one statutory ground when the juvenile court finds multiple

grounds satisfied. In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). The father’s

failure to challenge all of the statutory grounds relied upon by the juvenile court

waives any claim of error related to the unchallenged grounds, in this case

section 232.116(1)(h). See, e.g., In re A.W., No. 23-1125, 2023 WL 6290680, at

*1 (Iowa Ct. App. Sept. 27, 2023); In re J.P., No. 19-1633, 2020 WL 110425, at *1

(Iowa Ct. App. Jan. 9, 2020); In re N.S., No. 14-1375, 2014 WL 5253291, at *3

(Iowa Ct. App. Oct. 15, 2014). Nonetheless, we conclude the State established

grounds for termination under section 232.116(1)(h). The court may terminate

parental rights to a child under section 232.116(1)(h) if it finds:

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.

We agree with the juvenile court that all four elements have been

established for both children. E.W. and H.W. are less three years old, being born 5

in August 2022, and were adjudicated in need of assistance in September 2022.

Both were removed from parental custody at five days old and have not had a trial

visit or return home since then. These facts are largely indisputable. Finally, we

find there is clear and convincing evidence that the children could not be returned

to their father’s custody at the time of the termination hearing. See Iowa Code

§ 232.116(1)(h)(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.).

The father argued at the termination hearing that he believed he would be

released from prison within two or three months and the children could be returned

to his care at that time, but this is not the standard we use. Instead, we consider

the circumstances at the time of the termination proceedings. In re A.M., 843

N.W.2d 100, 112 (Iowa 2014) (interpreting “at the present time” in Iowa Code

section 232.116(1)(h)(4) to be the time of the termination hearing). The father was

incarcerated and could not resume immediate custody of the children, and we do

not excuse his inability to parent because of his incarceration. Cf. In re S.S.,

No. 19-0291, 2019 WL 6894282, at *3 (Iowa Ct. App. Dec. 18, 2019) (upholding a

finding of abandonment in a private termination action when the incarcerated

father’s visits with the child were terminated because the father attempted to

smuggle drugs into the prison during the visits). Even when the father was not

incarcerated he was not compliant with services and failed at reunifications. The

father has not addressed the concerns raised by the Department at the onset of

this case and has not established he is able to provide for the children’s nutritional

needs and acknowledge their hunger cues. His behavior was also sometimes 6

volatile and aggressive, and he was inconsistent with the mental-health services

directed by the Department. His visits with the children were not regular. Finally,

he oscillated between being interested in his children and then suddenly

disinterested. These circumstances do not establish an ability to consistently care

and provide for the children even if he was not in custody at the time of the

termination hearing.

While the father argues the Department did not fulfill its reasonable-efforts

obligation, we disagree. See Iowa Code § 232.102(6) (requiring the Department

to “make every reasonable effort to return the child[ren] to [their] home as quickly

as possible consistent with the best interests of the child[ren]”). The reasonable-

efforts mandate is not “a strict substantive requirement” and instead impacts the

State’s burden to prove sufficient statutory grounds for termination. In re C.B., 611

N.W.2d 489, 493 (Iowa 2000). “We have repeatedly emphasized the importance

for a parent to object to services early in the process so appropriate changes can

be made.” Id. at 493–94. Because the father did not challenge the Department’s

efforts until the termination proceeding, we determine he did not preserve error

and cannot raise such a challenge now. See id. at 494. But even if we did address

this issue as preserved, he still could not prevail because the Department offered

several services, including mental health, physical health, visitations,

transportation assistance, education, and others. The father did not always take

advantage of these services by declining or refusing to comply. We therefore find

the Department offered adequate support and met their reasonable-efforts

obligation. 7

The State established that the children could not be returned to the father’s

custody and established a statutory ground for termination.

IV. Best Interests.

Similarly, we find termination is in the best interests of the children. In

determining best interests, we “give 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],” Iowa Code § 232.116(2), with a “defining element” of our analysis being

the children’s “need for a permanent home.” In re H.S., 805 N.W.2d 737, 748

(Iowa 2011) (citations omitted). Termination proceedings are therefore “viewed

with a sense of urgency.” C.B., 611 N.W.2d at 495. “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.” D.W., 791 N.W.2d at 707 (citation omitted). It is

not in the children’s best interests to wait an indefinite amount of time for their

father to potentially be released, become stable, and finally comply with the

Department’s directives. Rather, we consider the “past performance” of the father,

which we have already determined departs from the children’s long-term care and

needs, as indicative of the quality of care he would likely provide in the future. See

C.B., 611 N.W.2d at 495 (quoting In re Dameron, 306 N.W.2d 743, 745 (Iowa

1981)). Termination is in the children’s best interests. 8

V. Disposition.

Because the statutory grounds for termination have been established and

termination is in the best interests of the children, we affirm termination of the

father’s parental rights.