In the Interest of K.S. and O.S., Minor Children

• Court: Court of Appeals of Iowa
• Decided: January 10, 2024
• Docket: 23-1914
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1914 Filed January 10, 2024

IN THE INTEREST OF K.S. and O.S., Minor Children,

K.S., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Kimberly Shepherd,

District Associate Judge.

A father appeals the termination of his parental rights to two children.

AFFIRMED.

Camille Kahn of Brubaker, Flynn & Darland, P.C., Davenport, for appellant

father.

Brenna Bird, Attorney General, and Dion D. Trowers, Assistant Attorney

General, for appellee State.

Patricia A. Rolfstad, Davenport, attorney and guardian ad litem for minor

children.

Considered by Schumacher, P.J., and Chicchelly and Buller, JJ. 2

CHICCHELLY, Judge.

A father appeals the termination of his parental rights to his two daughters:

K.S., born in 2014; and O.S., born in 2015. He contends that termination is not in

the children’s best interests and we should decline to terminate based on a

permissive exception. Upon our de novo review, we affirm termination of his

parental rights.

I. Background Facts and Proceedings.

The Iowa Department of Health and Human Services (HHS) became

involved with the children based on the mother’s alleged substance use.1 K.S. and

O.S. were adjudicated children in need of assistance. Before these events, the

father was already incarcerated in an Illinois prison, and he remained incarcerated

during the entirety of the proceedings. HHS attempted to engage with the father,

but his involvement with services was limited due to his incarceration. The children

had infrequent contact with the father, and their longest period without any

communication was approximately one year.

The State petitioned for termination in May 2023. After a two-day hearing

in September, both of the parents’ parental rights were terminated in November

2023. The father appeals.2

1 In November 2021, the mother gave birth to her third child. After the birth, the mother tested positive for controlled substances; similarly, the baby tested positive for amphetamine and methamphetamine. K.S., O.S., and the baby were all in her care, so they were jointly removed. But because only K.S. and O.S. are the subject of this appeal, we focus our analysis on them. 2 The mother’s rights were also terminated to the children, but she does not appeal. 3

II. Review.

We review termination proceedings de novo. In re Z.K., 973 N.W.2d 27, 32

(Iowa 2022). While not binding, we give weight to the juvenile court’s findings of

fact, especially regarding witness credibility. Id.

III. Discussion.

We use a three-step analysis to review termination of parental rights

proceedings. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). Those steps include

whether: (1) grounds for termination have been established, (2) termination is in

the children’s best interests, and (3) we should exercise any permissive exceptions

to termination. Id. at 472–73.

A. Grounds for Termination.

The juvenile court terminated the father’s parental rights to both children

under Iowa Code section 232.116(1)(d), (e), and (f) (2023). We may affirm on any

one statutory ground when the juvenile court terminates under multiple grounds.

In re A.W., No. 23-1125, 2023 WL 6290680, at *2 (Iowa Ct. App. Sep. 27, 2023).

The father concedes that two of the statutory grounds pled by the State have been

met; accordingly, we find that the statutory grounds for termination have been met

for section 232.116(1)(d) and (f) (2023). See id. at *1.

B. Best Interests Analysis.

The father contends that termination was not in the best interests of the

children because of their established parent-child bond. But this argument is better

suited as part of the permissive-exception analysis, and we consider it there. In

determining the best interests of the children, we must “give primary consideration

to the child[ren]’s safety, to the best placement for furthering the long-term 4

nurturing and growth of the child[ren], and to the physical, mental, and emotional

condition and needs of the child[ren].” Iowa Code § 232.116(2). A “defining

element[]” of our analysis is the children’s “need for a permanent home.” In re

H.S., 805 N.W.2d 737, 748 (Iowa 2011) (citation omitted). Iowa courts do not

deprive children of this permanent home in the hopes that a parent will suddenly

improve. In re A.B., 815 N.W.2d 764, 778 (Iowa 2012). We decline to keep them

in a temporary situation while waiting for the father to potentially be released early,

become stable, and develop a parenting relationship with his children. Instead, we

find it is in the children’s best interests to achieve permanency. Accordingly, upon

our de novo review, we find that termination is in the best interests of the children.

C. Permissive Exception.

The father lastly requests we decline to terminate based on his parent-child

relationship. See Iowa Code § 232.116(3)(c) (providing a discretionary exception

to termination upon a finding of “clear and convincing evidence that the termination

would be detrimental to the child[ren] at the time due to the closeness of the parent-

child relationship[s]”). While we do not doubt the father’s love for his children, the

record does not show an established bond or that the children would be

detrimentally impacted by termination. K.S. and O.S. had no communication at all

with their father for one year during the proceedings. When they did have

infrequent visits, their social work case manager described these interactions as a

“struggle” where the children did not know what to say. K.S. and O.S. were

encouraged several times to write to their father, but nothing in the record suggests

this regularly occurred. While we acknowledge incarceration served as a barrier

to communication in this case, the father cannot use this as an excuse. See In re 5

B.H.A., 938 N.W.2d 227, 234 (Iowa 2020) (“[The father] cannot use his

incarceration as a justification for his lack of a relationship with the child[ren].”

(citation omitted)). Instead, we rely on the record before us, which does not

support the claim that the children will be harmed by termination. We accordingly

decline to exercise a permissive exception based on a parent-child bond.

IV. Disposition.

Because it is in the best interests of the children and we determine that no

permissive exception should be applied to preclude termination, we affirm the

termination of the father’s parental rights.