In the Interest of L.S., Minor Child

• Court: Court of Appeals of Iowa
• Decided: July 20, 2022
• Docket: 21-2000
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-2000 Filed July 20, 2022

IN THE INTEREST OF L.S., Minor Child,

M.S., 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 child.

AFFIRMED.

Nicholas Einwalter, Des Moines, for appellant father.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

William E. Sales III of Sales Law Firm, P.C., Des Moines, attorney and

guardian ad litem for minor child.

Considered by Vaitheswaran, P.J., and Tabor and Badding, JJ. 2

BADDING, Judge.

A father who was incarcerated in a different state and admitted his child

could not be returned to his care at the time of the termination hearing appeals the

termination of his parental rights under Iowa Code section 232.116(1)(f) (2021). 1

We review each of his claims de novo. In re L.B., 970 N.W.2d 311, 313

(Iowa 2022).

The father first challenges the sufficiency of the evidence supporting the

final element of the ground for termination cited by the juvenile court. See Iowa

Code § 232.116(1)(f)(4) (requiring 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). But his challenge runs into a roadblock because of

his incarceration and admission that the child could not presently be returned to

his care. To get around this obstacle, the father argues the child could have been

returned to the mother. Setting aside the father’s testimony at the termination

hearing that “in [his] gut feelings [he] don’t think her mom is ready to have her at

this point yet,” termination of the father’s rights is a separate decision from

termination of the mother’s rights—both factually and legally. See In re J.H., 952

N.W.2d 157, 171 (Iowa 2020). The father lacks standing to challenge that final

decision. See id. We have “consistently rejected challenges to termination of one

parent’s rights based solely on the assertion that the child could” or should have

been returned to the other parent and do so again here. In re C.T., No. 18-2199,

2019 WL 1055897, at *1 n.1 (Iowa Ct. App. Mar. 6, 2019) (collecting cases).

1The mother also appealed the termination of her parental rights. Her appeal was dismissed by the supreme court for failure to comply with appellate rules. 3

The father’s related claim that termination of his rights is not in the child’s

best interests because the child could have been returned to the mother’s care

fails for the same reason. See J.H., 952 N.W.2d at 171. On the best-interests

issue, the father also asserts “he did participate in services as available.” But in

determining whether termination is in the best interests of a child, 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). The record shows

that at the time of the termination hearing, the father had been incarcerated in

Pennsylvania for roughly a year on pending felony charges involving sexual crimes

against a minor, during which time he had not seen the child. And, simply stated,

the child fears the father. The defining elements of the child’s best interests—

safety and need for a permanent home—are best served by termination of the

father’s rights. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).

The father also passively notes a “six month extension would likely have

allowed both parents to retain their parental rights.” Limiting our review to the

father’s circumstances, he has not enumerated what factors, conditions, or

expected behavioral changes will alleviate the need for removal at the end of an

extension. See Iowa Code § 232.104(2)(b). We don’t even know if he will be out

of jail or prison by then. So we have no basis to conclude an extension of time is

warranted.

All told, we affirm the termination of the father’s parental rights.