IN THE COURT OF APPEALS OF IOWA
No. 24-0111 Filed May 8, 2024
IN THE INTEREST OF F.W., Minor Child,
R.G., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Ringgold County, Monty Franklin,
Judge.
A father appeals the termination of his parental rights. AFFIRMED.
Ivan E. Miller, Red Oak, for appellant father.
Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney
General, for appellee State.
Dusty Clements of Clements Law & Mediation, Newton, attorney and
guardian ad litem for minor child.
Considered by Tabor, P.J., and Badding and Buller, JJ. 2
BULLER, Judge.
The father appeals termination of his parental rights to F.W. (born 2019).
The child lived her first few weeks with the mother, then started living with the
paternal grandmother around one month later. The father occasionally saw the
child during this time but went to prison in Missouri shortly after the child’s birth.
The mother (whose rights were terminated but has not appealed) was sentenced
to prison shortly thereafter and indicated she wanted nothing to do with the child.
The paternal grandmother was granted guardianship in July 2021 over the father’s
objection.
When the father was released from one of his periods of incarceration, he
visited with the child “here and there” at the grandmother’s home with mixed results
and only one overnight visit on the child’s second birthday. During that visit, the
father attempted to barricade himself and the child in the basement—resulting in
officers arresting him and new criminal charges. The father returned to prison
shortly after this incident and remained incarcerated through the termination trial.
In total, the father has been jailed or imprisoned for the majority of his adult life and
most of the child’s life.
In the grandmother’s words, the father “can be a good man. He can be.
But he can’t stay out of prison.” And “you can’t be a dad when you’re locked up all
the time.” She also described the father as an addict, explaining how he could not
quit using controlled substances. The father’s own testimony largely echoed this
observation, noting he had been using drugs his “whole life.” Records from the
underlying child in need of assistance (CINA) case revealed the father’s drug use 3
started at age ten and involved marijuana, methamphetamine, and prescription
drugs.
In January 2023, the Iowa Department of Health and Human Services
(HHS) removed the child from the grandmother’s home due to concerns unrelated
to this appeal, and the juvenile court adjudicated F.W. a CINA in March. As part
of the permanency plan, the court ordered the parents to participate in services—
including substance-abuse and mental-health evaluations and treatment.
By the termination trial, the father still had not completed a substance-abuse
or mental-health evaluation or engaged with services, despite widespread
agreement as to his nearly lifelong and significant drug problem. For at least some
portion of his time in prison, the father was in segregated or restricted custody, and
he indicated he could not obtain adequate services through the Missouri
correctional system. (The father claimed he “voluntarily” placed himself in
segregation, but this was not independently corroborated by other record
evidence.) While in segregation, the father could not access a phone for contact
with the child. An HHS worker testified it was impossible for Iowa HHS to provide
many services to offenders incarcerated in Missouri. The juvenile court found the
father’s failure to address the substance-abuse and mental-health concerns meant
that returning the child to his care would result in multiple adjudicatory harms.
There is conflicting evidence on when the father’s prison sentence will end.
His total sentence appears to be for seven years with a completion date in 2026.
A Missouri Department of Corrections document denying release in 2023 indicated
the father may be released in May 2024 subject to continued good behavior and
an acceptable release plan, but that same document noted: 4
**There does not appear to be a reasonable probability at this time that you would live and remain at liberty without again violating the law based upon: History of prior criminal involvement, Poor field supervision history, Need for institutional substance abuse treatment, [and] Poor institutional adjustment.
In any event, the juvenile court found the father’s failure to engage with substance-
abuse or mental-health services meant—at minimum—it would be “numerous
months following his release” before the father would be a safe placement for the
child. And the father admitted in his own testimony it would have to be a “slow
reintegration process” before he could care for the child. The record does not
contain the exact restrictions the father would face on parole and is somewhat
inconsistent as to the exact charges that led to his current incarceration—though
there is agreement he has been incarcerated at some point for offenses related to
burglary, domestic abuse, forgery, controlled substances, harassment, and
various misdemeanors.
In the eighteen months before termination, the father had no contact with
the child. An HHS worker testified—and no party disputed—that the department
wanted to get the child into therapy and receive “therapeutic feedback” about visits
before they took place. The juvenile court found the father “ha[d] not developed a
bond with the child” and “has no parent-child relationship with” the child, who
referred to the grandmother’s paramour and her foster dad as the father figures in
her life.
The child’s grandmother testified the father had not sent correspondence,
cards, letters, or anything else to the child while he was incarcerated, though he
did send letters via HHS after the CINA case was underway. She also explained
how the father never provided any financial assistance for the child while he was 5
in or out of prison. The grandmother’s paramour confirmed they had been the
child’s sole source of financial support. But the father disputed this version of
events, asserting he provided cash and “supplied all of [the child’s] diapers and
wipes and anything else that she needed.” The father’s testimony on this point
was undercut to some extent by a previous interview with HHS, in which he
disclosed paying child support for another child but not F.W. At trial, the father
also contested the grandmother and her paramour’s description of the barricaded-
in-the-basement event that led to his arrest and incarceration, claiming the police
“just decided to place [him] under arrest” for no reason and he pled guilty even
though he “could [have] eventually beat” the charge.
As of trial, the child was doing well in foster care, and HHS was working to
rebuild her relationship with her grandmother. Both the foster parents and
grandmother indicated they were willing to adopt. The county attorney, HHS, and
the child’s guardian ad litem all recommended termination.
The juvenile court terminated the father’s parental rights under Iowa Code
section 232.116(1)(b) and (e) (2023). He appeals, and we review de novo. See
In re W.M., 957 N.W.2d 305, 312 (Iowa 2021).
Statutory elements. “When the juvenile court terminates parental rights
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IN THE COURT OF APPEALS OF IOWA
No. 24-0111 Filed May 8, 2024
IN THE INTEREST OF F.W., Minor Child,
R.G., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Ringgold County, Monty Franklin,
Judge.
A father appeals the termination of his parental rights. AFFIRMED.
Ivan E. Miller, Red Oak, for appellant father.
Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney
General, for appellee State.
Dusty Clements of Clements Law & Mediation, Newton, attorney and
guardian ad litem for minor child.
Considered by Tabor, P.J., and Badding and Buller, JJ. 2
BULLER, Judge.
The father appeals termination of his parental rights to F.W. (born 2019).
The child lived her first few weeks with the mother, then started living with the
paternal grandmother around one month later. The father occasionally saw the
child during this time but went to prison in Missouri shortly after the child’s birth.
The mother (whose rights were terminated but has not appealed) was sentenced
to prison shortly thereafter and indicated she wanted nothing to do with the child.
The paternal grandmother was granted guardianship in July 2021 over the father’s
objection.
When the father was released from one of his periods of incarceration, he
visited with the child “here and there” at the grandmother’s home with mixed results
and only one overnight visit on the child’s second birthday. During that visit, the
father attempted to barricade himself and the child in the basement—resulting in
officers arresting him and new criminal charges. The father returned to prison
shortly after this incident and remained incarcerated through the termination trial.
In total, the father has been jailed or imprisoned for the majority of his adult life and
most of the child’s life.
In the grandmother’s words, the father “can be a good man. He can be.
But he can’t stay out of prison.” And “you can’t be a dad when you’re locked up all
the time.” She also described the father as an addict, explaining how he could not
quit using controlled substances. The father’s own testimony largely echoed this
observation, noting he had been using drugs his “whole life.” Records from the
underlying child in need of assistance (CINA) case revealed the father’s drug use 3
started at age ten and involved marijuana, methamphetamine, and prescription
drugs.
In January 2023, the Iowa Department of Health and Human Services
(HHS) removed the child from the grandmother’s home due to concerns unrelated
to this appeal, and the juvenile court adjudicated F.W. a CINA in March. As part
of the permanency plan, the court ordered the parents to participate in services—
including substance-abuse and mental-health evaluations and treatment.
By the termination trial, the father still had not completed a substance-abuse
or mental-health evaluation or engaged with services, despite widespread
agreement as to his nearly lifelong and significant drug problem. For at least some
portion of his time in prison, the father was in segregated or restricted custody, and
he indicated he could not obtain adequate services through the Missouri
correctional system. (The father claimed he “voluntarily” placed himself in
segregation, but this was not independently corroborated by other record
evidence.) While in segregation, the father could not access a phone for contact
with the child. An HHS worker testified it was impossible for Iowa HHS to provide
many services to offenders incarcerated in Missouri. The juvenile court found the
father’s failure to address the substance-abuse and mental-health concerns meant
that returning the child to his care would result in multiple adjudicatory harms.
There is conflicting evidence on when the father’s prison sentence will end.
His total sentence appears to be for seven years with a completion date in 2026.
A Missouri Department of Corrections document denying release in 2023 indicated
the father may be released in May 2024 subject to continued good behavior and
an acceptable release plan, but that same document noted: 4
**There does not appear to be a reasonable probability at this time that you would live and remain at liberty without again violating the law based upon: History of prior criminal involvement, Poor field supervision history, Need for institutional substance abuse treatment, [and] Poor institutional adjustment.
In any event, the juvenile court found the father’s failure to engage with substance-
abuse or mental-health services meant—at minimum—it would be “numerous
months following his release” before the father would be a safe placement for the
child. And the father admitted in his own testimony it would have to be a “slow
reintegration process” before he could care for the child. The record does not
contain the exact restrictions the father would face on parole and is somewhat
inconsistent as to the exact charges that led to his current incarceration—though
there is agreement he has been incarcerated at some point for offenses related to
burglary, domestic abuse, forgery, controlled substances, harassment, and
various misdemeanors.
In the eighteen months before termination, the father had no contact with
the child. An HHS worker testified—and no party disputed—that the department
wanted to get the child into therapy and receive “therapeutic feedback” about visits
before they took place. The juvenile court found the father “ha[d] not developed a
bond with the child” and “has no parent-child relationship with” the child, who
referred to the grandmother’s paramour and her foster dad as the father figures in
her life.
The child’s grandmother testified the father had not sent correspondence,
cards, letters, or anything else to the child while he was incarcerated, though he
did send letters via HHS after the CINA case was underway. She also explained
how the father never provided any financial assistance for the child while he was 5
in or out of prison. The grandmother’s paramour confirmed they had been the
child’s sole source of financial support. But the father disputed this version of
events, asserting he provided cash and “supplied all of [the child’s] diapers and
wipes and anything else that she needed.” The father’s testimony on this point
was undercut to some extent by a previous interview with HHS, in which he
disclosed paying child support for another child but not F.W. At trial, the father
also contested the grandmother and her paramour’s description of the barricaded-
in-the-basement event that led to his arrest and incarceration, claiming the police
“just decided to place [him] under arrest” for no reason and he pled guilty even
though he “could [have] eventually beat” the charge.
As of trial, the child was doing well in foster care, and HHS was working to
rebuild her relationship with her grandmother. Both the foster parents and
grandmother indicated they were willing to adopt. The county attorney, HHS, and
the child’s guardian ad litem all recommended termination.
The juvenile court terminated the father’s parental rights under Iowa Code
section 232.116(1)(b) and (e) (2023). He appeals, and we review de novo. See
In re W.M., 957 N.W.2d 305, 312 (Iowa 2021).
Statutory elements. “When the juvenile court terminates parental rights
on more than one statutory ground, we may affirm the juvenile court’s order on any
ground we find supported by the record.” In re A.B., 815 N.W.2d 764, 774 (Iowa
2012). We elect to affirm under paragraph (b). Under this section, the juvenile
court was required to find “there is clear and convincing evidence that the child has
been abandoned or deserted.” Iowa Code § 232.116(1)(b). Both terms—
“abandoned” and “deserted”—are statutorily defined: 6
“Abandonment of a child” means the relinquishment or surrender, without reference to any particular person, of the parental rights, duties, or privileges inherent in the parent-child relationship. Proof of abandonment must include both the intention to abandon and the acts by which the intention is evidenced. The term does not require that the relinquishment or surrender be over any particular period of time.
Id. § 232.2(1).
“Desertion” means the relinquishment or surrender for a period in excess of six months of the parental rights, duties, or privileges inherent in the parent-child relationship. Proof of desertion need not include the intention to desert, but is evidenced by the lack of attempted contact with the child or by only incidental contact with the child.
Id. § 232.2(15).
Here, the juvenile court found termination was proper under theories of both
abandonment and desertion.
On appeal, the father challenges proof of abandonment but fails to address
desertion. We find the State’s contention the father waived any desertion
challenge well-grounded. See In re M.D., No. 11-2037, 2012 WL 474184, at *2
n.2 (Iowa Ct. App. Feb. 15, 2012) (noting but not deciding the question of whether
a parent, “by arguing the evidence does not support a finding of abandonment, has
waived any claim of error concerning the juvenile court’s reliance in part on a
finding of desertion”); see also In re K.C.-P., No. 23-1730, 2024 WL 260829, at *1
(Iowa Ct. App. Jan. 24, 2024) (finding a father failed to mention one ground for
termination, waiving his challenge to it). But we briefly address the issue given our
resolution of the merits.
The record shows a history of desertion. The father was absent for almost
all the child’s life—far more than six months—due to a combination of incarceration 7
and failure to assume the role of a parent while not incarcerated. He relinquished
the parenting function to the grandmother shortly after the child’s birth and never
assumed any parental responsibilities or duties thereafter. And while the father
made limited efforts to communicate with the child shortly before termination, his
conduct or choices led to his placement in segregation where he could have no
real-time interactions by phone or video. The child’s grandmother also testified the
child “does not recognize him even. . . . [The child]’s, I guess, forgot him.”
We agree with the juvenile court that the father’s contact with the child was
“intermittent” and the limited acts he did take to resume contact were insufficient
to demonstrate he assumed parental rights, duties, or privileges or to otherwise
undermine the strong evidence of his desertion. We also emphasize the father
“cannot use his incarceration as justification for his lack of relationship with the
child.” In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993). And we credit testimony by the
grandmother and her paramour that the father did not provide financial support for
the child while incarcerated or otherwise. We find clear and convincing evidence
supports the termination of the father’s parental rights to F.W. under
section 232.116(1)(b) and affirm.
Best interests. The father asserts termination was not in the child’s best
interests. On review, we give primary weight “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.” Iowa Code
§ 232.116(2). Here, we agree with the juvenile court that termination is in the
child’s best interests. The father never cared for the child for any length of time,
he is essentially a stranger to her, and he is not currently able to care for her. And 8
his substance-abuse and mental-health problems remain unaddressed. The child
deserves the permanency and stability afforded by termination and potential
adoption.
Permissive exceptions. Section 232.116(3) outlines five circumstances
when the court may forgo termination after the State proves a ground for
termination. The father urges the placement of the child in a guardianship with the
grandmother should trigger an exception to termination under
section 232.116(3)(a). But that exception is applicable only when “a relative has
legal custody.” In re A.B., 956 N.W.2d 162, 170 (Iowa 2021). Because HHS
removed the child from the grandmother’s legal custody in early 2023 and the court
placed the child in HHS’s legal custody, the exception does not apply.
Section 232.116(3)(c) allows the juvenile court to decline termination if it
“would be detrimental to the child at the time due to the closeness of the parent-
child relationship.” A parent resisting termination has the burden to prove this
permissive exception by clear and convincing evidence, and our case law
recognizes that—without more—neither a parent’s love nor the mere existence of
a bond is enough to prevent termination. See A.B., 956 N.W.2d at 169–70; In re
D.W., 791 N.W.2d 703, 709 (Iowa 2010). The father claims he has a strong bond
with the child because he sent letters and messages. Yet the juvenile court made
a fact finding their bond was “minimal to nonexistent.” This finding relies on implicit
credibility determinations supported by the record. And even if there were a
significant bond between the father and the child despite the father’s almost
complete absence from the child’s life, any potential detriment caused by severing
that bond is outweighed by the stability and safety afforded by termination and 9
adoption. See In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (noting we consider
the bond in the context of a case’s unique circumstances and the child’s best
interests).
Reasonable efforts. The father also faults HHS for not providing
reasonable efforts, specifically by facilitating visits between him and the child while
he was incarcerated. Because we affirm under section 232.116(1)(b), HHS was
not required to make reasonable efforts to reunify the father and the child. See In
re M.D., No. 19-1912, 2020 WL 567320, at *1 (Iowa Ct. App. Feb. 5, 2020)
(collecting cases and noting “[i]n challenging the statutory grounds for termination,
the father maintains DHS failed to make reasonable efforts to reunify him with [the
child]. But section 232.116(1)(b) does not have a reasonable-efforts
requirement.”); accord In re T.M., No. 23-1485, 2023 WL 7391834, at *1 (Iowa Ct.
App. Nov. 8, 2023).
Additional time. The father last asks for another six months for
reunification, asserting “he would be released from prison and could take the
necessary steps to be able to care for” the child by then. But his own testimony at
the termination trial, after a colloquy about the need for sobriety, stability, and a
slow reintegration process with the child after release, indicated otherwise:
Q. So if the court would extend this an additional six months, the possibility of the child being returned to you is not really a possibility at that time; correct? A. I don’t see it, no. To be honest, I’m going to say no.
We believe the father’s candid answer at trial was realistic. While he may hope for
release from prison within six months of the trial date, even his own best-case-
scenario puts his release in May 2024—at the edge of the six-month window, even 10
without accounting for the necessary period of sobriety in the community. We
affirm denial of the request for additional time.
AFFIRMED.
Badding, J., concurs; Tabor, P.J., concurs specially. 11
TABOR, Presiding Judge. (concurring specially)
I agree with the majority’s decision to affirm the termination of the father’s
parental rights. But I write separately to address the department’s duty to make
reasonable efforts to reunify children with their parents, even incarcerated parents.
The majority declines to address the father’s reasonable efforts challenge because
the juvenile court terminated his rights under Iowa Code section 232.116(1)(b)
(2023), “the child has been abandoned or deserted.” I disagree that this ground
for termination allows us to avoid a discussion of reasonable efforts.
True, we have a series of unpublished decisions noting that paragraph (b)
does not have language implicating the reasonable-efforts requirement. See In re
M.D., No. 19-1912, 2020 WL 567320, at *1 (Iowa Ct. App. Feb. 5, 2020) (collecting
cases). Those opinions trace their origin to In re C.B., 611 N.W.2d 489 (Iowa
2000). C.B. is the source of these often-quoted sentences:
[T]he reasonable efforts requirement is not viewed as a strict substantive requirement of termination. Instead, the scope of the efforts by the [department of health and human services] to reunify parent and child after removal impacts the burden of proving those elements of termination which require reunification efforts. See In re B.K.K., 500 N.W.2d 54, 57 (Iowa 1993); In re L.H., 480 N.W.2d 43, 46 (Iowa 1992). The State must show reasonable efforts as a part of its ultimate proof the child cannot be safely returned to the care of a parent.
C.B., 611 N.W.2d at 493.
Quite frankly, I’ve always wondered why reasonable efforts are not viewed
as “a strict substantive requirement” for termination. Because once the juvenile
court transfers custody of a child to the department, the department must make
reasonable efforts to return the child safely home. Iowa Code § 232.102(4)(b).
Reasonable efforts at reunification are required in every case unless the court 12
waives the requirement. Id.; In re L.M.W., 518 N.W.2d 804, 807 n. 1 (Iowa Ct.
App. 1994) (noting reasonable efforts mandate requires agency to make
reasonable efforts to reunify families “in each case” (emphasis in original)). Waiver
of the department’s reasonable-efforts requirement is only proper if the court
“determines by clear and convincing evidence that aggravated circumstances exist
supported by written findings of fact based upon evidence in the record.” Iowa
Code § 232.102A(4). One of those aggravating circumstances is that the parent
has abandoned the child. Id. § 232.102A(4)(a). But in this case, the State did not
allege aggravating circumstances. So reasonable efforts were a “strict substantive
requirement” facing the department. Before the court granted the State’s
termination petition based on paragraph (b) and (e), the department had a
responsibility to make reasonable efforts “to eliminate the need for removal” of
F.W. or make it possible for her “to safely return to the family’s home.” Id.
§ 232.102A(1)(a) (defining reasonable efforts). Assuming the department did not
meet that requirement, what enforcement mechanism would the father have?
It would be odd if the State could ignore “its statutory mandate to provide
reunification services” to an incarcerated parent, see In re S.J., 620 N.W.2d 522,
525 (Iowa Ct. App. 2000), and then petition to terminate that parent’s rights
because he had surrendered his parental duties by failing to have contact with the
child. See Iowa Code § 232.2(15) (defining desertion). Indeed, in finding a “history
of desertion” here, the majority emphasizes that the father’s incarceration was the
major contributor to his absence from F.W.’s life.
In my view, it is time for our supreme court to clarify the “strict substantive
requirement” reference in C.B. and correct our court’s practice of snubbing 13
reasonable-efforts claims in cases where the juvenile court terminates based on
paragraph (b). But perhaps it already has done so implicitly. In addressing the
case of an incarcerated mother—whose parental rights were terminated under
section 232.116(1) paragraph (b), (e), and (h)—the supreme court addressed her
reasonable-efforts argument, finding that her challenge to the lack of visitation in
prison came too late. In re L.M., 904 N.W.2d 835, 838, 840 n.9 (Iowa 2017) (noting
that its rejection of mother’s argument did not mean that reasonable efforts in
furtherance of reunification cannot include visitation arrangements for incarcerated
parents). Granted, the supreme court affirmed that termination under paragraph
(h), id. at 839, but an appellate court’s choice to analyze the proof under paragraph
(b) cannot retroactively eliminate the department’s duty to provide reasonable
efforts.
Following the supreme court’s lead in L.M., I would address the father’s
reasonable-efforts challenge. In his petition on appeal, the father contends that he
requested visits with F.W. in prison, but the department failed to provide them. The
State argues in its response to the petition on appeal that the father waited too
long to contest reasonable efforts. The father’s first demand for additional services
came in his brief resisting termination filed ten days before the hearing. Nothing
in the father’s petition on appeal points to an earlier request for prison visits with
F.W. On this record, I would find that the father’s request was untimely. See L.M.,
904 N.W.2d at 840.