In the Interest of K.W., Minor Child, M.W., Mother J.A.-s., Father

• Court: Court of Appeals of Iowa
• Decided: August 16, 2017
• Docket: 17-0930
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-0930 Filed August 16, 2017

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

M.W., Mother Appellant,

J.A.-S., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,

District Associate Judge.

A mother and father separately appeal from the termination of their

parental rights to their child. AFFIRMED ON BOTH APPEALS.

Ryan R. Gravett of Oliver Gravett Law Firm, P.C., Windsor Heights, for

appellant mother.

Richard R. Hollis, Des Moines, for appellant father.

Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney

General, for appellee State.

Paul L. White of the Des Moines Juvenile Public Defender’s Office, Des

Moines, attorney and guardian ad litem for the minor child.

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

MULLINS, Judge.

A mother and father separately appeal from the termination of their

parental rights to their child, K.W., born in September 2016. Both parents

contend termination is not in the child’s best interests and the juvenile court

should have granted their requests for additional time to work toward

reunification with their child. The father also argues the State failed to prove the

statutory grounds for termination by clear and convincing evidence and an

exception to termination exists so as to preclude termination.

The mother has a lengthy history of substance abuse. She admitted using

methamphetamine during her pregnancy and K.W. tested positive for the drug at

birth. The court removed K.W. from the parents’ custody shortly after the child’s

birth and adjudicated K.W. a child in need of assistance (CINA) in October 2016.

The mother minimized and denied her substance-abuse and mental-health

issues throughout the CINA case. She struggled to find suitable housing and

employment to be able to provide for her child’s needs. In March 2017, the

mother was arrested on an outstanding warrant and subsequently charged with

possession of drug paraphernalia.

The father has an extensive criminal history and was incarcerated at the

time of K.W.’s birth. The parents have never been married, but the mother

identified the father as K.W.’s biological parent soon after the child’s birth. The

father was notified of the removal hearing in September 2016 and was present

for the hearing by telephone. However, the father denied paternity and refused

to participate in the court-ordered testing until the end of January 2017, because

he did not want to be responsible for child-support payments. The father did not 3

request contact or visitation with the child until after he participated in paternity

testing. He was confirmed the biological parent of K.W. in March 2017—six

months after the child’s birth. At the time of the termination hearing, the father

had been approved for work release but had not yet been transferred to the

work-release facility.

In a detailed and well-reasoned ruling, the juvenile court terminated the

mother’s parental rights pursuant to Iowa Code section 232.116(1)(h) (2017) and

the father’s parental rights pursuant to section 232.116(1)(b) and (h). We review

termination-of-parental-rights proceedings de novo. In re M.W., 876 N.W.2d 212,

219 (Iowa 2016). “We are not bound by the juvenile court’s findings of fact, but

we do give them weight, especially in assessing the credibility of witnesses.” Id.

at 219 (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa 2014)). Our primary

consideration is the best interests of the child. In re J.E., 723 N.W.2d 793, 798

(Iowa 2006).

The father challenges the grounds for termination under paragraph (b) and

also appears to challenge the grounds under paragraph (h) by claiming the Iowa

Department of Human Services (DHS) failed to make reasonable efforts to

reunify him with his child.1 See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000)

(“The State must show reasonable efforts as a part of its ultimate proof the child

cannot be safely returned to the care of a parent [at the time of the termination

hearing].”). When a court terminates parental rights on more than one ground,

1 The mother does not challenge the statutory grounds for termination; therefore, we do not address this issue and affirm the termination of her parental rights under paragraph (h). See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (stating that, when a parent does not challenge the existence of statutory grounds, we need not address the issue). 4

we may affirm the order on any of the statutory grounds supported by clear and

convincing evidence. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010).

The State must make reasonable efforts to reunify the family as quickly as

possible after a child has been removed from his or her parents’ care and

custody. Iowa Code § 232.102(7). In determining whether reasonable efforts

have been made, the court considers “[t]he type, duration, and intensity of

services or support offered or provided to the child and the child’s family.” Id.

§ 232.102(10)(a)(1). “[T]he nature and extent of visitation is always controlled by

the best interests of the child.” In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App.

1996). When a parent is incarcerated, DHS must provide services “reasonable

under the circumstances.” In re S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000).

In making this determination, DHS may consider the following factors: the child’s

age, the bond the child shares with the incarcerated parent, “any existing clinical

or other recommendations concerning visitation,” “the nature of parenting

deficiencies,” the physical location of the incarcerated parent relative to the

child’s placement, “the limitations of the place of confinement,” the services

available to the incarcerated parent in his or her current setting, the nature of the

criminal offense, “and the length of the parent’s sentence.” Id.

After the father requested visitation, DHS considered the factors listed

immediately above and determined visitation was not appropriate in this case

due to the child’s young age, the complete lack of a bond between the father and

his child, the father’s lack of experience in parenting young children, the great

physical distance between the child’s foster home and the prison where the

father was located, the prison’s visiting room was not conducive to holding visits 5

with very young children, the fact the father was in prison for drug-related

offenses, and because the father’s tentative discharge date was set for April

2020. Based upon this detailed report by DHS, the court did not order visitation

between the father and the child following the hearing on the matter in April 2017,

noting specifically “the child’s developmental delays, mental, emotional and

physical, as well as [the] recent change in caretakers, make a long distance trip

to visit with the father harmful to the child.” On our de novo review, we cannot

say the denial of visitation to the father was unreasonable under the

circumstances. We agree with the juvenile court’s finding that reasonable efforts

were made to reunify the father with his child and affirm the termination of the

father’s rights under paragraph (h).

Both parents argue termination is not in the child’s best interests. In

determining whether termination of a parent’s parental rights is in a child’s best

interests, we “give primary consideration to the child’s safety, to the best

placement for furthering the long-term nurturing and growth of the child, and to

the physical, mental, and emotional condition and needs of the child.” Iowa Code

§ 232.116(2). “Insight for the determination of the child’s long-range best

interests can be gleaned from ‘evidence of the parent’s past performance for that

performance may be indicative of the quality of the future care that parent is

capable of providing.’” In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (quoting In

re C.B., 611 N.W.2d at 495).

The mother did not address her substance-abuse or mental-health issues

during the underlying CINA case. She was unemployed, did not have stable

housing or reliable transportation, and was unable to meet her child’s needs. 6

The mother never progressed beyond fully supervised visits. She was arrested

in March 2017 on an outstanding warrant from December 2016 and charged with

a drug-related offense for having a methamphetamine pipe on her person at the

time of her arrest. At the time of the termination hearing, the mother was living

with a friend who was not appropriate to be around the child. The father has

been incarcerated for all of K.W.’s short life. The lack of a relationship between

the father and his child is due to the father’s incarceration and initial refusal to

participate in paternity testing or request contact with the child. The child is in

foster care with a distant relative who wishes to adopt the child. Based on this

evidence, we find termination is in the child’s best interests.

The father next contends Iowa Code section 232.116(3)(c) applies to save

his relationship with his child. That section provides a court may decide not to

terminate a parent’s parental rights if “[t]here is clear and convincing evidence

that the termination would be detrimental to the child at the time due to the

closeness of the parent-child relationship.” Iowa Code § 232.116(3)(c). The

father acknowledges he does not have a bond with his child at all, let alone a

close one. Yet, he claims “the reason [he] has not been able to develop a close

relationship with [the child] is because of the failure of the Department of Human

Services to provide visitation services.” We have already determined the denial

of visitation was not unreasonable. We affirm the juvenile court’s decision that

section 232.116(3)(c) does not apply here.

Finally, both parents claim the juvenile court should have granted their

requests for an additional six months to work toward reunification with their child.

Under Iowa Code section 232.104(2)(b), a court may authorize a six-month 7

extension if it determines “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.”

The mother concedes she has “significantly struggled and did not engage

in all of the services to aide her in having her child place[d] back in her care.”

She further admits “she spent much of this case minimizing her and not

understanding the extent of her substance abuse issues.” Nevertheless, she

claims that had the juvenile court granted her request for an additional six

months, she could have entered a residential facility and the child could have

been placed with her there. She did not have stable housing or employment

throughout the CINA case. And even before the mother was jailed in March

2017, she never progressed beyond fully supervised visits. The father spent the

first several months denying paternity of the child and refusing to participate in

services to avoid paying child support for the child. At the time of the termination

hearing, the father had been approved for work release but had not yet been

transferred to the facility. He has a tentative discharge date of April 2020.

We must now view this case with a sense of urgency. See In re C.B., 611

N.W.2d at 495; see also In re A.B., 815 N.W.2d at 777 (“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))). We cannot ask this child to continuously wait

for the parents to become stable. See In re D.W., 791 N.W.2d at 707; see also

In re A.B., 815 N.W.2d at 778 (“It is simply not in the best interests of children to

continue to keep them in temporary foster homes while the natural parents get 8

their lives together.” (quoting In re C.K., 558 N.W.2d 170, 175 (Iowa 1997))). On

the record before us, we are not persuaded the need for removal would no longer

exist at the end of six months. See Iowa Code § 232.104(2)(b).

Accordingly, upon our de novo review, we affirm the juvenile court’s order

terminating the mother’s and the father’s parental rights to their child.

AFFIRMED ON BOTH APPEALS.