In the Interest of L.W., Minor Child

• Court: Court of Appeals of Iowa
• Decided: March 6, 2019
• Docket: 18-2007
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-2007 Filed March 6, 2019

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

J.P., Father, Appellant. ________________________________________________________________

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

District Associate Judge.

A father appeals the termination of his parental rights. AFFIRMED.

Nicholas Dial of Dial Law Office, P.C., West Des Moines, for appellant

father.

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

General, for appellee State.

ConGarry Williams of State Public Defender’s Office, Des Moines, guardian

ad litem for minor child.

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

DOYLE, Presiding Judge.

L.W. was born in September 2016 and tested positive for methadone,

hydrocodone, and benzodiazepines at birth. The test results were reported to the

Iowa Department of Human Services (DHS), and the child was ultimately removed

from her parents’ care. The child was placed in the care of the child’s maternal

grandmother, where the child has since remained.

Almost two years after the child’s birth, the State filed a petition seeking

termination of the parents’ parental rights. The mother consented to the

termination of her parental rights; the father contested termination.1 Following a

hearing, the juvenile court terminated the father’s parental rights.

The father now appeals. He maintains the court should have granted him

visitation while he was incarcerated at a correctional facility or given him additional

time for reunification, given his “short prison sentence” and because he “availed

himself of numerous services while in prison.” He also suggests the juvenile court

erroneously delegated its authority in determining whether his request for visitation

at the prison should be granted. Upon our de novo review, see In re A.S., 906

N.W.2d 467, 472 (Iowa 2018), we disagree.2

The father has a significant criminal history, dating back to at least 2001,

when he was arrested for assault causing bodily injury. His criminal activities

include numerous charges related to domestic violence as well as use of illegal

1 The mother does not appeal. 2 We need not review any step of the three-step analysis the juvenile court must make in terminating a parent’s parental rights if the step was not challenged by the parent on appeal. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010); see also Iowa Code § 232.116(1)- (3). 3

substances. From 2001 to April 2016, the father was convicted of more than

twenty crimes. Though the convictions were mostly misdemeanors of all levels,

he had two felony convictions in 2006 relating to domestic abuse assault.

Before the child’s birth in 2016, the father was charged with driving while

his license was barred and placed in jail. While in jail, he was also charged with

fifth-degree theft. He was released around August 2016, but he was subsequently

incarcerated for violating a no-contact order and again for driving while barred. He

was released from jail and, while not present at the child’s birth, he was at the

hospital the night of her birth, though he questioned the child’s paternity. The

father’s paternity was established at the end of November 2016. In December

2016, the father was arrested on a charge of domestic abuse assault, second

offense, for allegedly punching his paramour in the face. He was also charged

with probation violations. He was again placed in jail, and he remained there until

April 2017, when his probation was revoked.

Following the revocation of his probation, the father was moved from jail to

the Mount Pleasant Correctional Facility, where the father was imprisoned for

approximately thirteen months. During that time, the father requested visitation

with the child at the prison, despite having had very limited contact with the child

since her birth. Based upon the father’s minimal involvement in the child’s life up

to that point, the great distance between the child’s home and the correctional

facility, and the short visitation time allowed by the correctional facility, and other

factors, the DHS did “not believe it [was] reasonable for [the] child to have

visitation/interactions with the father while he [was] in prison.” 4

In the court’s July 2017 review order, the court adopted and incorporated

the DHS’s recommendations set out in the State’s report to the court, thus rejecting

the father’s request for visitation at the prison. The court specifically addressed

the father’s request for prison visitation in its September 2017 permanency order,

adopting the caseworker’s reasons for denying visitation.

It is true that the State must make reasonable efforts to reunify a parent and

a child, even when the parent is incarcerated. See In re S.J., 620 N.W.2d 522,

524-25 (Iowa Ct. App. 2000). But, as with any other parent, the “services required

to be supplied an incarcerated parent . . . are only those that are reasonable under

the circumstances.” Id. at 525. In determining what is reasonable, we consider

the age of the children, the bonding the children have or do not have with their parent, including any existing clinical or other recommendations concerning visitation, the nature of parenting deficiencies, the physical location of the child and the parent, the limitations of the place of confinement, the services available in the prison setting, the nature of the offense, and the length of the parent’s sentence.

Id.

Here, based upon those considerations, the DHS recommended denying

the father’s request for visitation. The court agreed and adopted those

recommendations upon its review. The juvenile court clearly did not delegate its

authority to the DHS in determining whether to grant the father’s request for

visitation.

Additionally, upon our de novo review of the record, we agree with the denial

of his request for prison visitation. The father’s criminal actions—just during the

pendency of the case—demonstrate the father was unable or unwilling to put his

child’s needs first. It was only after he was imprisoned that he showed any interest 5

in being a father to the child. While transporting the child the great distance to visit

the father was possible, it was clearly not in the child’s best interests, given the

child’s young age, lack of a relationship with the father, and the short duration of

any visit.

Finally, the facts of this case do not support granting the father additional

time to work toward reunification. Despite years of criminal convictions, at the

termination-of-parental-rights hearing the father minimized his struggles with

anger, violence, and use of illegal substances in his testimony. Although he

admitted there was documentation of violence in almost every one of his

relationships, he referred to the victims’ abuse reports as mere allegations and

never admitted any specific actions on his part. Yet, there are several criminal

reports of his striking his paramours over the years in the record, with police reports

documenting his victims’ injuries. When asked about his history of abusing

substances, the father denying having “abused” them, testifying he only had a

history of “using substances.” He testified it was possible that he had downplayed

his use of drugs in previous substance-abuse evaluations to avoid any

recommendation for treatment. He also did not see the risk of being with others

who are abusing drugs, suggesting he would simply refrain from joining them. The

father had time while imprisoned to reflect upon his actions over the years, accept

responsibility for his part in the matters, and work to address the issues that caused

his actions of violence and use of illegal substances. His testimony shows he has

not internalized any need to make real behavioral changes, and delaying this

child’s permanency any longer in hopes the father recognizes his part in the cycle

of violence and actually makes life modifications is unrealistic and not in the child’s 6

best interests. Because we agree with the juvenile court’s denial of the father’s

requests for visitation while in prison and for additional time for reunification, we

affirm the court’s order terminating the father’s parental rights.

AFFIRMED.