In the Interest of J v. Minor Child, J v. Father

• Court: Court of Appeals of Iowa
• Decided: April 5, 2017
• Docket: 17-0026
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-0026 Filed April 5, 2017

IN THE INTEREST OF J.V. Minor child,

J.V., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,

District Associate Judge.

Father appeals from an order terminating his parental rights pursuant to

Iowa Code chapter 232 (2016). AFFIRMED.

Joseph P. Vogel of Vogel Law, P.L.L.C., Des Moines, for appellant father.

Thomas J. Miller, Attorney General, and Kristi A. Traynor, Assistant

Attorney General, for appellee State.

Nicole Garbis Nolan of Youth Law Center, Des Moines, guardian ad litem

for minor child.

Considered by Mullins, P.J., and Bower and McDonald, JJ. 2

MCDONALD, Judge.

James, the father, appeals from an order terminating his parental rights in

his child, J.V., pursuant to Iowa Code section 232.116(1)(b), (e), and (h) (2016).

The father challenges the sufficiency of the evidence supporting the statutory

grounds authorizing the termination of his parental rights. The father also

contends the termination of his parental rights is not in the child’s best interest.

Our review is de novo. See In re A.M., 843 N.W.2d 100, 110 (Iowa 2014).

The statutory framework and burden of proof are both well established and need

not be repeated herein. See id.; In re M.S., 889 N.W.2d 675, 679 (Iowa Ct. App.

2016). “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 address termination of James’s parental rights pursuant to section

232.116(1)(h). As relevant here, the State was required to prove by “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.” Iowa Code

§ 232.116(1)(h)(4). “At the present time” means at the time of the termination

hearing. See A.M., 843 N.W.2d at 111. “[A] child cannot be returned to the

custody of the child’s parent under . . . section 232.102 if by doing so the child

would be exposed to any harm amounting to a new child in need of assistance

adjudication.” In re M.M., 483 N.W.2d 812, 814 (Iowa 1992). We have

interpreted this provision to require the State to prove the child would be exposed

to an “appreciable risk of adjudicatory harm.” M.S., 889 N.W.2d at 683. 3

On de novo review, we conclude there was clear and convincing evidence

in support of this ground for termination of James’s parental rights. The child at

issue was born in January 2015. Sixteen days after the child’s birth, the father

was placed in custody for violating the terms and conditions of his probation. At

the time of the termination hearing, the father was incarcerated for convictions of

threat to use an explosive or incendiary device and two counts of harassment in

the first degree. The father’s discharge date is in 2019. While James did testify

he would be eligible for parole prior to that date, he also admitted parole could be

delayed due to his repeated violations of prison rules. James’s incarceration at

the time of the termination hearing precluded his ability to provide care for the

child. See Iowa Code § 232.2(6)(n) (defining a child in need of assistance to

include one whose “parent’s or guardian’s mental capacity or condition,

imprisonment, or drug or alcohol abuse results in the child not receiving

adequate care”); In re L.H., No. 16-1605, 2016 WL 7395294, at *1 (Iowa Ct. App.

Dec. 21, 2016) (affirming termination of parental rights pursuant to section

232.116(1)(h) whether father was incarcerated at the time of the termination

hearing and the child did not recognize the father).

We also conclude termination of the father’s parental rights is in the child’s

best interest. The father has extensive criminal history. He was incarcerated

from 2006 through 2013. He was incarcerated again in 2015, shortly after the

child’s birth. The father has no bond with the child; the father had one visitation

with the child in the Polk County Jail but otherwise has not seen the child in two

years. The father’s request that the child be placed with one of the father’s

relatives until the father’s discharge from prison was untenable. The Iowa 4

Department of Human Services investigated the requested familial placements

and concluded the child could not be placed safely with any of them due to

concerns regarding violence and criminal behavior within the family, including,

among other things, convictions for domestic abuse assault, assault with a

weapon, assault, theft, robbery, extortion, kidnapping, criminal mischief, and

possession of a controlled substance.

We cannot ask this child to continuously wait for his father to become a

stable parent. See In re A.B., 815 N.W.2d 764, 777 (Iowa 2012) (“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.” (quoting In re P.L., 778 N.W.2d 33, 41 (Iowa 2010))). “[A]t some point, the

rights and needs of the child[ ] rise above the rights and needs of the parent.” In

re C.S., 776 N.W.2d 297, 300 (Iowa Ct. App. 2009). Termination of the father's

parental rights is in the child’s best interests.

AFFIRMED.