In the Interest of J.W., Minor Child, B.W., Father

• Court: Court of Appeals of Iowa
• Decided: April 6, 2016
• Docket: 16-0266
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-0266 Filed April 6, 2016

IN THE INTEREST OF J.W., Minor child,

B.W., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Warren County, Kevin A. Parker,

District Associate Judge.

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

AFFIRMED.

Zachary C. Priebe of Jeff Carter Law Offices, P.C., Des Moines, for

appellant father.

Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant

Attorney General, for appellee State.

Dawn M. Bowman of Bowman Law Office, Pleasantville, for minor child.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2

VAITHESWARAN, Presiding Judge.

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

2015. He contends (1) the State failed to prove the grounds for termination cited

by the district court and (2) termination was not in the child’s best interests.

I. Grounds for Termination

The district court terminated the father’s parental rights pursuant to Iowa

Code section 232.116(1)(g), (h), and (i) (2015). We may affirm a termination

decision if we find clear and convincing evidence to support any of the grounds

cited by the court. See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999).

Termination is warranted under section 232.116(h). This ground requires

proof that the child is three years of age or younger, has been adjudicated in

need of assistance, and has been removed for at least six of the previous twelve

months or six consecutive months. There also must be “clear and convincing

evidence that the child cannot be returned to the custody” of the child’s parent.

Our de novo review of the record reveals the following facts. The father’s

parental rights to two other children were terminated based on his physical abuse

of both of them.1 Based on those terminations, the father consented to the

temporary removal of this child, who was subsequently adjudicated in need of

assistance.2

1 The father contends this evidence is irrelevant, amounts to “improper character evidence,” and is inadmissible because it relates to “prior terminations from . . . different families.” We need not resolve this issue because the argument implicates an element of section 232.116(1)(g) rather than section (h). Specifically, section (g) requires proof of the termination of parental rights “with respect to another child who is a member of the same family.” Iowa Code § 232.116(1)(g). 2 The father essentially conceded the relevancy of the prior termination evidence when he consented to the temporary removal of this child based on his acts of physical abuse against the other children. 3

The department of human services offered the father professionally-

supervised visits with the child. The father participated in visits, which took place

once a week for an hour and a half. According to the visitation supervisor, the

visits went well but there was “not a whole lot of time for things to go wrong.”

She opined the father could not have unsupervised contact with the child.

The department case manager agreed. He testified there were no

additional services the department could provide within the statutory time frames

that would allow the father to safely parent the child on an unsupervised basis.

We recognize the father completed anger management and parenting

classes as directed by the district court and did not physically abuse this child.

But the department understandably was wary of moving to unsupervised contact

in light of the father’s history. As the department case manager testified,

Well, those services were provided during the very first case in Cedar Rapids or Linn County, I believe, and then the child was actually returned to him, and she was then removed shortly after the return due to physical abuse concerns, I believe, that he pleaded guilty to. Additionally, after that incident he has another child who is seven months old after all those services, and he breaks that child’s arm. I don’t believe he’s safe around children, and I don’t believe any anger management course or anything like that can change his history of what he’s done.3

In our view, the department did not have an obligation to test the waters a third

time before determining this child’s safety would be compromised by

unsupervised contact with the father.

3 This testimony was elicited during a hearing on the State’s motion to waive reasonable efforts. See Iowa Code § 232.102(12)(c). The State later withdrew this motion but the entire child-in-need-of-assistance file, including a transcript of this hearing, was included in the termination record. 4

We conclude the child could not be returned to the father’s custody. See

Iowa Code § 232.116(1)(h).

II. Best Interests

Termination must also be in the child’s best interests. See In re P.L., 778

N.W.2d 33, 40 (Iowa 2010). Although the visitation supervisor acknowledged

there was a bond between the father and his infant child, the risk to the child’s

physical safety warranted termination. Accordingly, we affirm the termination of

the father’s parental rights to the child.