In the Interest of K.B., Minor Child, S.F., Father

• Court: Court of Appeals of Iowa
• Decided: August 13, 2014
• Docket: 14-0879
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-0879 Filed August 13, 2014

IN THE INTEREST OF K.B., Minor Child,

S.F., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Marion County, Steven Guiter,

District Associate Judge.

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

AFFIRMED.

Blake D. Lubinus of Lubinus Law Firm, Des Moines, for appellant.

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

Attorney General, and Edward W. Bull, County Attorney, for appellee.

Jessica Millage of Millage Law Firm, P.C., Des Moines, for mother.

Jared Harmon of Carr & Wright P.L.C., Des Moines, attorney and guardian

ad litem for minor child.

Considered by Potterfield, P.J., Tabor and Mullins, JJ. 2

TABOR, J.

A young father appeals the juvenile court order severing his parental rights

to his one-year-old son. He contends the State did not prove a statutory ground

for termination and argues maintaining his rights would be in the child’s best

interests. But primarily, the father seeks an additional six months to work toward

reunification—pointing to an exhibit detailing his candid revelations concerning

his anxiety and depression recently shared with a counselor from the Department

of Veterans Affairs (VA) Hospital.

We affirm the juvenile court for the following three reasons. First, the

evidence at the hearing, including the father’s own testimony, supported the

court’s decision to terminate parental rights. Second, while the son, K.B.,

recognized his father during visits, their bond was not so strong that termination

would be detrimental to the child’s development. Third and finally, while the

father has taken a positive step toward addressing his mental health, his conduct

during the case shows his deep-seated difficulties are not likely to be resolved in

time to regain custody of his son. Accordingly, we affirm the termination.

I. Background Facts and Proceedings

When K.B. was three months old, a child protection worker came to the

home of his father, Shane, to investigate allegations the child had been exposed

to domestic violence.1 K.B.’s eighteen-year-old mother, the victim of the abuse,

1 The State charged Shane with multiple counts of domestic abuse assault, including strangulation, and first-degree harassment. He eventually entered an Alford plea to harassment and simple misdemeanor domestic assault. He was on probation at the time of the termination hearing. Under North Carolina v. Alford, 400 U.S. 25, 37 (1970), 3

was experiencing serious mental health issues, including thoughts of suicide.

The worker described K.B.’s parents as “young, immature, angry, and violent

with one another.” At that time, twenty-year-old Shane was living in a household

with not only K.B. and K.B.’s mother, but with his eighteen-year-old fiancée and

her daughter. Shane is also the father of that child, who was born just two weeks

before K.B.2 In the worker’s view, the household dynamics were “a recipe for

disaster.”

K.B.’s parents consented to temporary removal. The Department of

Human Services (DHS) placed K.B. in the home of Shane’s aunt and uncle,

where the child has stayed throughout the case. The court adjudicated K.B. as a

child in need of assistance (CINA) on July 17, 2013, finding Shane had “anger

management problems that prevent placement.” On September 11, 2013, the

court found K.B. could not be returned home due to the risk of abuse.

Despite recommendations from DHS that Shane receive mental health

services, he did not obtain an evaluation until November 2013. In the interim,

Shane’s fiancée reported he had hit her. Shane did see a psychologist “a

handful of times” in late 2013 and early 2014, but testified he discontinued the

sessions “due to financial issues.” He was prescribed medications but stopped

taking them because of their side effects. Shane also started back with the

National Guard during this time.

a defendant may consent to the imposition of a prison sentence without admitting participation in the crime. 2 Shane’s daughter is not the subject of this termination case. 4

In addition to his mental health issues, Shane was not diligent in visiting

K.B. Shane’s aunt had an “open-door” visitation policy, but Shane did not seize

that opportunity. And even when Shane had a weekly standing appointment to

see his son, the aunt often had to place reminder calls so Shane would be awake

and prepared for the visits. Shane never progressed to semi-supervised,

unsupervised, or overnight visits. The longest stretch he ever spent with K.B.

was four hours.

On January 3, 2014, the State filed a petition to terminate Shane’s

parental rights. A month after the petition was filed and a month before the

termination hearing, Shane met with a therapist from the VA for the first time. He

testified until then he was not aware “the VA was still operational” in Knoxville.

The court took evidence on the petition on March 12, 2014. At the conclusion of

that hearing, the guardian ad litem recommended termination. In an order dated

May 20, 2014, the court followed that recommendation and terminated Shane’s

parental rights.3 Shane now appeals.

II. Analysis of the Father’s Arguments

In our de novo review,4 we consider the father’s claim the State did not

prove by clear and convincing evidence a basis for termination under section

232.116(1), as well as his assertion the court should preserve his parental

relationship under section 232.116(3). We also address his request for additional

time.

3 The court also terminated the parental rights of K.B.’s mother, but she is not a party to this appeal. 4 In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). 5

A. Statutory Grounds

Termination requires proof of only one statutory ground. In re L.H., 480

N.W.2d 43, 47 (Iowa 1992). In this case, the juvenile court properly determined

the State’s evidence supported termination under section 232.116(1)(h). That

paragraph has four elements: (1) the child is three years old or younger; (2) the

child has been adjudicated CINA; (3) the child has been removed from the

parent’s physical custody for at least six of the last twelve months, or for the last

six consecutive months and any trial period at home has been less than thirty

days; and (4) there is clear and convincing evidence the child cannot be returned

to the parent’s custody as provided in section 232.102 at the present time.5

“Present time” means the period of the termination hearing. See In re A.M., 843

N.W.2d at 111.

The DHS worker testified Shane engaged in services “very minimally, if at

all.” He did not take advantage of liberal visitation offered by his aunt, and

continued to act violently toward his fiancée. As a result, the department did not

consider K.B. to be safe in the father’s care. Shane admitted during his

testimony he was not ready to care for K.B.—agreeing with counsel’s assertion:

“right now as of today . . . you may not be the safest place for [K.B.].” The court

properly terminated Shane’s rights under paragraph (h).

5 We defer to the juvenile court’s factual findings, especially as to the credibility of witnesses, though we are not bound by them. Id. The State must offer clear and convincing evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). “Clear and convincing” means we harbor no “serious or substantial doubts as to the correctness [of] conclusions of law drawn from the evidence.” Id. 6

B. Closeness of the Father-Son Bond

Shane contends termination was not warranted based on the bond he

shares with K.B. Iowa Code § 232.116(3)(c). Shane testified K.B. was happy to

see him walk through the door and called him “Da Da.” While the one-year-old

recognized his father, the father did not work to develop a deep relationship with

K.B., spending only minimal time with him during that formative first year. The

social worker testified K.B. was well-integrated into the family of his great aunt

and uncle and they were willing to adopt him. Permanency for K.B. can only be

achieved by terminating Shane’s parental rights. See In re J.E., 723 N.W.2d

793, 802 (Iowa 2006) (Cady, J., concurring specially) (noting the “defining

elements in a child’s best interest” are the child’s safety and “need for a

permanent home”)). We reject Shane’s claim under section 232.116(3).

C. Additional Time

Shane argues the juvenile court should have given him six additional

months to access services and work toward reunification with K.B as allowed

under Iowa Code section 232.104(2)(b).6 The juvenile court may grant more time

only if the judge specifically finds whatever prompted removal of the child will be

resolved at the end of the six months. In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct.

App. 2005).

Shane predicts his therapy through the VA will help him get a handle on

his problems in six months. We are wary of that prediction. It is telling Shane did

6 “An order entered under this paragraph shall enumerate the specific factors, conditions, or expected behavioral changes which comprise the basis for the determination that the need for removal of the child from the child’s home will no longer exist at the end of the additional six-month period.” 7

not start his therapy sessions until after the filing of the termination petition. And

while his honesty with the VA psychologist and his resolve now to seek help are

encouraging, his mental condition—laid bare—is concerning. Shane admitted

being in “a constant state of paranoia.” He also suffers from serious depression,

feeling “no energy to do anything.” He told the psychologist his anger was

“starting to get out of control” and recounted waking up “head butting the wall.”

Shane discussed being abused as a child and engaging in self-harming

behaviors as a teenager that left permanent scars, which he showed the VA

psychologist.

Also in the VA interview, Shane denied responsibility for the incident of

domestic violence that sparked K.B.’s removal. He told the psychologist: “the

police came and arrested me because [K.B.’s mother] had a self-inflicted mark

on her neck. I never touched her. I spent two weeks in jail because she lied.” In

our de novo review, we find Shane’s failure to acknowledge his abuse of K.B.’s

mother raises doubt that he could resume care of his young son in six months.

That doubt is amplified by the testimony of Shane’s fiancée, who initially

denied that Shane ever struck her. When she was reminded she was under

oath, she acknowledged Shane has hit her, causing bruises, and that she has at

times been afraid of him. Shane’s history of domestic violence and lack of insight

into the corrosive nature of that conduct indicates an ongoing risk to K.B.’s

welfare.

Shane has not shown the kind of progress during the months that K.B. has

been out of his care to merit prolonging the uncertainty. Our legislature has 8

constructed a time frame to balance a parent’s efforts against the child’s long-

term best interests. In re C.B., 611 N.W.2d 489, 494 (Iowa 2000). In this case,

that balance has reached the tipping point toward providing K.B. permanency.