In the Interest of H.S., Minor Child

• Court: Court of Appeals of Iowa
• Decided: October 11, 2023
• Docket: 23-1263
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1263 Filed October 11, 2023

IN THE INTEREST OF H.S., Minor Child,

R.S., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Dallas County, Erica Crisp, District

Associate Judge.

A father appeals the termination of his parental rights to his child.

AFFIRMED.

Donna M. Schauer of Schauer Law Office, Adel, for appellant father.

Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney

General, for appellee State.

Paul White of Juvenile Public Defender, Des Moines, attorney and guardian

ad litem for minor child.

Considered by Bower, C.J., and Ahlers and Chicchelly, JJ. 2

BOWER, Chief Judge.

A father appeals the termination of his parental rights to his child, born in

2021.1 He claims the State failed to prove the ground for termination cited by the

juvenile court and permissive exceptions militate against termination. Upon our

review, we affirm.

I. Background Facts and Proceedings

This family came to attention of the department of health and human

services in August 2021, when H.S. tested positive for methamphetamine at birth.

The mother admitted “to ongoing methamphetamine use” “during her pregnancy.”

The child was removed from the mother’s care, adjudicated in need of assistance,

and placed with the mother’s father and stepmother, “a prior placement of a

previous child [of the mother’s] who then adopted her child.”

In December 2021, the mother was doing “really well” with inpatient

substance-abuse treatment, and the department recommended the child be

placed with the mother in the program. The court approved the change in

placement. Meanwhile, paternity testing determined the father was the child’s

biological father. Because the father had “warrants out for his arrest,” he did not

attend the dispositional hearing. He also admitted being a “current meth user,”

and there were concerns about domestic violence between the parents.

The mother relapsed in May and June 2022 and reentered inpatient

treatment. The child was again placed with the mother’s family members. The

father did not appear for the dispositional review hearing, and the court noted he

1 The child has been in the mother’s custody; her parental rights were not terminated. 3

“has not been willing to comply with services of [the department] with fear that he

will be called into the police for his warrant and be arrested.” The father had “not

maintained contact with the child.” Meanwhile, the mother was “engaged in

treatment” and having regular visits with the child. In August, the court approved

a change in placement for the child with the mother at the treatment center. The

child has remained in the mother’s custody since.

At the permanency hearing in September, the father was in jail serving a

120-day sentence for assault on the mother. He acknowledged he was “on the

run before this,” so he “wasn’t really keeping contact” with the department or “doing

much of anything.” He stated he was trying to handle his “meth use problems” on

his own, but he “wasn’t having any luck.” The father had participated in two

supervised visits with the child. He requested a six-month extension. The court

granted the request, finding it would “provide[ ] the father time to participate with

services while being under supervision of [the department].”

The father was released from jail in November, and he began participating

in weekly substance-abuse treatment. The father was also engaging in weekly

visits with the child, which were going well. Despite “receiving threatening”

communications from the father, the mother was willing to work on co-parenting

with him. However, the department predicted the mother’s case would close soon,

and it expressed apprehension about how the mother would handle contact with

the father without department oversight due to their history of domestic violence

and the father’s unresolved substance-abuse and mental-health concerns. 4

The department’s worries were well-founded. In early 2023, the father failed

to appear for a requested drug screen2 and had several alarming contacts with the

mother. In one instance, he went to her residence and “slashed all of her tires.”

In another, he “hit [her] in the head,” causing her to receive “three staples” following

an argument in which the child was present. A no-contact order was entered

against the father. The father thereafter “showed up” “in the middle of the night

and wouldn’t leave,” threatening the mother “with a gun” but leaving before the

police arrived. The State filed a petition to terminate the father’s parental rights.

At the review hearing in April, the father’s attorney noted the father was

“aware that he needs to become re-involved with [services], and he’s planning to

partake in all of those.” The court observed the termination hearing was set for

June, and told the father:

[Y]ou just need to understand that you’ve got about two months to prove to everybody that that’s not what should happen on that day. You need to complete a new substance abuse evaluation and follow through with the recommended services. You need to work with your [service] worker for parenting and for visitation, follow any and all orders that are handed down to you from the criminal court, attend court dates and that kind of thing, and refrain from any further criminal behavior. If you have a no contact order with the mother in this case, it will be a condition of this case that you not have any contact with her directly.

The termination hearing took place as scheduled. Due to the father’s

continued lack of engagement in services, the department recommended

termination of his parental rights. The father acknowledged he had been in contact

2 The caseworker reported, “Out of the [‘six, if not more’] tests that I’ve asked him

to do [over the life of this case], I’ve had zero that he’s done. So all of them would be considered positive in the court.” 5

with the mother in violation of the no-contact order because she asked him to

“babysit” the child. He also admitted he had used methamphetamine “[y]esterday,”

and stated he’d “like services.” The father testified his criminal charges were “kind

of becoming a blur” but would be resolved in a “[c]ouple days—tomorrow.” The

father requested the court enter a bridge order in lieu of terminating his parental

rights.

The juvenile court thereafter entered an order terminating the father’s

parental rights under Iowa Code section 232.116(1)(g) (2023). He appeals.

II. Standard of Review

Appellate review of termination-of-parental-rights proceedings is de novo.

In re A.B., 957 N.W.2d 280, 293 (Iowa 2021). Our paramount concern in

termination proceedings is the best interests of the child. In re L.T., 924

N.W.2d 521, 529 (Iowa 2019).

III. Grounds for Termination

A court may terminate parental rights pursuant to section 232.116(1)(g)

when it finds all of the following have occurred:

(1) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (2) The court has terminated parental rights pursuant to section 232.117 with respect to another child who is a member of the same family . . . . (3) There is clear and convincing evidence that the parent continues to lack the ability or willingness to respond to services which would correct the situation. (4) There is clear and convincing evidence that an additional period of rehabilitation would not correct the situation.

The father does not dispute H.S. has been adjudicated a child in need of

assistance. Nor does he dispute his parental rights were previously terminated to 6

another child, born in 2010. See In re H.B., No. 18-0835, 2018 WL 3913110, at *3

(Iowa Ct. App. Aug. 15, 2018) (“The fact the children shared the same [fa]ther is

dispositive. The second element of section 232.116(1)(g) was satisfied.”).

Regarding the remaining elements, the father was aware “there were steps

that needed to be taken” toward reunification. But he chose not to avail himself to

services consistently due to his outstanding warrants and “lack of wanting to meet

with any of the workers because he felt [they] were going to call the police to have

him turned in.” Even so, the father had ample time to engage in substance-abuse,

mental-health, and domestic-violence treatment. Indeed, in September 2022, the

court granted him a six-month extension “to participate with services while being

under [the department’s] supervision.” Yet at the time of the termination hearing

nine months later, the caseworker testified, “he’s not in any services currently. No

substance treatment, no therapy or anything.” The caseworker further

acknowledged the father “has had continuing legal issues throughout the entirety

of [the case].” Except for one visit the week before the termination hearing, the

father had gone over a month without any visits or having contact with the

department. The father acknowledged using methamphetamine “probably twenty

days out of thirty” in the last month, his methamphetamine use was “an ongoing

battle,” but he stated he could control his usage “[t]o an extent.” As the guardian

ad litem opined, “we have a father who—who I think, by all accounts, is not taking

advantage of the services that have been offered to him, and has not really put

himself in a position where he could be a parent and have—have a role in [the

child’s] life as required under the Code.” 7

The father insists “[a]n additional period of rehabilitation would correct the

situation such that [his] parental rights would not need to be terminated.” The

juvenile court found, however,

He was previously given a six-month extension with very specific goals and did not use it productively; rather, he persisted in using illegal drugs, did not address his mental health, and continued to rack up new criminal charges. Although he insists he can stop when he wants, the available data show that appears to be a mere pipe dream.

Under these facts and circumstances, we conclude the father’s parental

rights were properly terminated pursuant to Iowa Code section 232.116(1)(g).

IV. Exceptions to Termination

The father also claims his bond with the child and the child’s placement with

the mother militate against termination. See Iowa Code § 232.116(3)(a), (c)

(allowing the court to avoid termination of parental rights where “[a] relative has

legal custody of the child” or “termination would be detrimental to the child . . . due

to the closeness of the parent-child relationship”). These exceptions “are

permissive, not mandatory.” In re A.M., 843 N.W.2d 100, 113 (Iowa 2014) (citation

omitted). “The court may exercise its discretion in deciding whether to apply the

factors in section 232.116(3) to save the parent-child relationship based on the

unique circumstances of each case and the best interests of the children.” In re

A.R., 932 N.W.2d 588, 591 (Iowa Ct. App. 2019). “[O]nce the State has proven a

ground for termination, the parent resisting termination bears the burden to

establish an exception to termination” under section 232.116(3). In re A.S., 906

N.W.2d 467, 476 (Iowa 2018). 8

Several witnesses testified to the bond shared between the father and the

child, and the father stated the two “have a blast together.” But the guardian ad

litem opined:

I just have ongoing concerns about the safety of the child if—if [the] father’s rights remain in place because he hasn’t addressed [the issues impeding reunification]. And I—I understand that the—kind of the dilemma that the mother is put into, and I—with the situation where she wants the father’s participation or—of a role for her child, but [it] doesn’t seem that there’s any way that that can be done safely.

Indeed, the caseworker testified the father had “been very toxic with trying to reach

out to [the mother].” She believed “it would be very difficult ongoing” “if [the

father’s] parental rights were not terminated and [the mother] had full custody and

there was a visitation schedule.” The father stated he and the mother could

communicate effectively “if it’s a necessary situation,” but he agreed maintaining

the no-contact order was “the best way” because “[t]here’s a lot of hurt and pain

between us in our relationship, and—you know, sometimes it just can’t handle it.”3

Under these facts and circumstances, the father has not proved either exception

militates against termination.

We affirm the termination of the father’s parental rights.

3 The mother testified similarly, stating she had not considered having the no-

contact order removed “[b]ecause at any time, [the father] could fly off the handle.”