In the Interest of M.B.-S. and K.S., Minor Children

• Court: Court of Appeals of Iowa
• Decided: September 21, 2022
• Docket: 22-0846
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0846 Filed September 21, 2022

IN THE INTEREST OF M.B.-S. and K.S., Minor Children,

N.S., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

District Associate Judge.

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

Nicholas Einwalter, Des Moines, for appellant father.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Richelle Mahaffey, Des Moines, attorney and guardian ad litem for minor

children.

Considered by Bower, C.J., and Vaitheswaran and Tabor, JJ. 2

BOWER, Chief Judge.

A father appeals the termination of his parental rights. We find the grounds

for termination have been established and termination is in the children’s best

interests. We affirm.

I. Background Facts & Proceedings.

N.S. is the father of two children, K.S., born in 2017, and M.B.-S., born in

2020. The children have different mothers.1

M.B.-S. was born prematurely, tested positive for THC, and was

hospitalized for eight weeks. The hospital alerted the department of human

services (DHS) the child’s parents, K.B. and N.S., visited only sporadically and

were uninterested in learning to care for the child’s special needs. The parents

agreed to a safety plan where the child would reside with the paternal

grandparents. The child was discharged from the hospital into the grandparents’

care and subsequent custody, where he remains. M.B.-S. was adjudicated a child

in need of assistance (CINA) in October 2020.

The father shared custody and physical care of K.S. with the child’s mother,

T.M. In October, the court found removal of K.S. from the father’s custody was

“necessary to protect the child from imminent danger due to the father’s unresolved

substance abuse, domestic violence[,] and mental health issues.” On

December 17, K.S. was adjudicated a CINA.

The father has significant underlying mental-health issues. He was ordered

to participate in anger management and comply with mental-health treatment.

1K.S.’s mother has custody of the child. The parental rights of the mother of M.B.-S. were terminated, and she does not appeal. 3

Although he complied with mental-health evaluations, his self-reports omitted

significant past diagnoses and he discontinued taking his mental-health

medications in mid-2021.

Throughout the CINA proceedings, the father provided inconsistent reports

of his marijuana use to DHS, service providers, and substance-abuse evaluators.

It appears he used marijuana daily throughout the first year of services. He asserts

he does not use marijuana anymore, but in January 2022 refused to comply with

drug testing without in-person visits with the children.

In July 2021, the father became upset during a visit. During his outburst,

the father threatened violence against the DHS caseworker, including bombing her

car. He was arrested and jailed for three months for violating his probation.2 The

father pled guilty to criminal charges for his threats, and in December, his sentence

was suspended. Since his release from this jail term, he may only visit the children

virtually.

At the termination hearing, both the father and M.B.-S.’s mother consented

to the termination of their parental rights, stipulating it was in the child’s best

interests. During his testimony in K.S.’s case, the father stated termination of his

rights to M.B.-S. was not in the child’s best interests, “it’s just forced on me” and

he “gave up.” However, no motion was filed to reopen the record or withdraw the

father’s consent to termination as to M.B.-S.

The hearing then focused on the termination of the father’s rights relating to

K.S. The State and DHS recommended transferring custody of K.S. to the mother

2 The father was on probation for a conviction of assault while displaying a dangerous weapon. 4

and dismissing the termination petition. Upon learning the State no longer

recommended termination as to K.S., the mother’s attorney essentially took over

the petition filed by the State.

The father has not provided any financial assistance or gifts to K.S. since

the onset of the CINA proceedings, conditioning any support payments on talking

directly with the mother. In the past, the father has harassed the mother’s fiancé,

resulting in a no-contact order; the mother has requested a no-contact order

alleging domestic abuse; and the father threatened other violence against the

mother and her family. He testified if the district court ordered he could only have

supervised visitation, he would take the mother to court seeking unsupervised

visitation.

The father admitted he had not scheduled a mental-health or substance-

abuse evaluation as required in his sentencing order in the two months between

sentencing and the termination hearing. But, he had signed up for the required

assaultive behavior classes, which were scheduled for the following week. He had

engaged in therapy in the past but was not involved at the time of the hearing, and

he testified he was not taking medications as needed for some of his mental

illnesses. In January 2022, the father flatly refused to participate in drug screens

or engage in services until he “saw his kids” in person and accused DHS of being

human traffickers.

The court terminated the father’s rights regarding K.S. under Iowa Code

section 232.116(1)(e) and (f) (2022). His parental rights in regards to M.B.-S. were

terminated under section 232.116(1)(a), (e), and (h). The father appeals. 5

II. Standard of Review.

“We review termination of parental rights de novo.” In re W.M., 957 N.W.2d

305, 312 (Iowa 2021). We give weight to the trial court’s findings of fact, especially

when considering the credibility of witnesses, though we are not bound by them.

Iowa R. App. P. 6.904(3)(g).

III. Analysis.

On appeal, the father asserts his parental rights should not have been

terminated under any grounds asserted relating to either child, termination is not

in the children’s best interests, and an exception to termination should have been

applied since each child is in the custody of a relative. The State argues the

grounds for termination have been established as to M.B.-S. and it is in the child’s

best interests. The State took no position as to the termination of the father’s

parental rights relating to K.S. at trial or on appeal.

We use a three-step analysis to review termination of parental rights. First, we “determine whether any ground for termination under section 232.116(1) has been established.” If we determine “that a ground for termination has been established, then we determine whether the best-interest framework as laid out in section 232.116(2) supports the termination of parental rights.” Finally, if we conclude the statutory best-interest framework supports termination, “we consider whether any exceptions in section 232.116(3) apply to preclude termination of parental rights.”

In re A.S., 906 N.W.2d 467, 472–73 (Iowa 2018) (internal citations omitted).

“When the juvenile court orders termination of parental rights on more than one

statutory ground, we need only find grounds to terminate on one of the sections to

affirm.” In re T.S., 868 N.W.2d 425, 435 (Iowa Ct. App. 2015). 6

A. Grounds for termination.

1. M.B.-S. The juvenile court terminated the father’s parental rights with

respect to M.B.-S. under section 232.116(1)(a), (e), and (h). Under paragraph (a),

“The parents voluntarily and intelligently consent to the termination of parental

rights and the parent-child relationship and for good cause desire the termination.”

The father asserts he withdrew his consent to termination of his rights relating to

M.B.-S. He asks us to infer withdrawal of consent from testimony during the

hearing relating to K.S., where he stated termination of his parental rights was not

in M.B.-S.’s best interests and he had only consented to termination because he

gave up and thought DHS would keep harassing him if he did not consent to

termination. Immediately after that testimony, the father stated his willingness to

consent was based on the child’s placement with the paternal grandparents where

the father could continue to see M.B.-S. The father did not move to reopen the

record or withdraw his consent to the termination of his parental rights during or

after the termination hearing.

When questioned about his consent during the portion of the hearing

devoted to M.B.-S., the father testified:

Q. And are you voluntarily consenting to the termination of parental rights and the parent-child relationship that exists between you and [M.B.-S.]? A. Yes. .... Q. Okay. And again, you are consenting at this time to the termination of your parental rights because you believe it is in the best interest of [M.B.-S.]? A. Correct. .... Q. . . . At this time you’ve been given significant amount of time to do what the court has been asking of you; correct? A. Correct. 7

Q. Okay. And at this time, you just believe that at this point that your child is in the safest place to ensure his safety going forward? A. Yes. Q. And that placement is the best placement for him going forward until he’s [eighteen]? A. Yes.

The evidence for termination of parental rights relating to M.B.-S. was fully

submitted and the record closed before the hearing relating to K.S. began. The

fact the father “changed his mind after termination does not invalidate the earlier

consent.” See In re K.P., No. 19-1648, 2020 WL 110409, at *1 (Iowa Ct. App.

Jan. 9, 2020); see also In re H.S., No. 17-1902, 2018 WL 540998, at *1 (Iowa Ct.

App. Jan. 24, 2018) (“[T]he mother cannot be heard on appeal to complain about

a ruling she agreed was appropriate.”). We find the father consented to termination

and his later testimony does not change that fact. We affirm the termination of the

father’s parental rights relating to M.B.-S.

2. K.S. The court terminated the father’s rights regarding K.S. under Iowa

Code section 232.116(1)(e) and (f). To terminate under paragraph (f), the State

must establish the child is four years of age or older, has been adjudicated a

CINA, has been removed from the parent’s care for at least twelve of the last

eighteen months, and cannot be returned to the parent’s custody at the time of

the termination hearing. The father does not contest the first three elements:

K.S. was four years old, was adjudicated a CINA, and had been removed from

the father’s custody for more than a year.

The father asserts the child could have been safely placed in his home

at the time of the termination hearing. He argues the aggression and mental-

health issues the court cited are due to the trauma of having the children 8

removed from his care and he would engage in services if the children were in

his care.3

The father has serious mental-health issues, some of which require

medication. He chose to stop taking his prescribed medications, and about two

weeks later had the outburst to DHS workers which led to his new criminal

convictions. At trial, he stated he was not prescribed any medication for his

mental health, but eventually admitted it was because he had not followed up

with his psychiatrist. The father lived with K.B., who was not considered a safe

caretaker for the child. He refused to participate further in services without in-

person visitation and refused to pay child support unless those visits were

unsupervised.

There is clear and convincing evidence the child could not be returned

to the father’s custody at the time of the hearing. We affirm the termination of

the father’s parental rights regarding K.S. under Iowa Code section

232.116(1)(f).

B. Best interests and exception to termination.4 The father combines

his best-interests and exception-to-termination analyses, asserting that because

3 As noted, the State did not take a position as to K.S., but asserts M.B.-S. cannot be returned to the father’s care because of the father’s “escalation and threatening behaviors”; failure to follow through with expectations, evaluations, and drug testing; failure to address his assaultive behavior; and inability to demonstrate stability and sobriety. 4 The father briefly asserts a six-month extension would have allowed him to retain

his rights, but he makes no argument and did not preserve error on this issue below. 9

each child is protected in their current placement, severing the parent-child bond

is not in the children’s best interests.

For M.B.-S., the father suggests converting to a guardianship with the

paternal grandparents would be in the child’s best interests. While in some

instances the parent and guardian have a relationship to support such an

arrangement, generally “a guardianship is not a legally preferable alternative to

termination.” A.S., 906 N.W.2d at 477 (citation omitted). M.B.-S. has been in the

grandparents’ care his entire life, and the father presented no evidence the

grandparents would agree to a guardianship. The child is too young to express a

preference, and termination was recommended by both the DHS caseworker and

the guardian ad litem. Termination is in M.B.-S.’s best interests with no exception

to termination.

The father testified he had a strong relationship with K.S. and the child

deserves to have a relationship with the father. K.S.’s mother testified the father

was “very controlling and abusive” when they were together and she would not feel

safe co-parenting with him. The father testified he would “for sure” attempt to

modify any custodial decree that placed the child with the mother and required

visits be supervised. Given his continuing mental-health and anger issues, refusal

to cooperate with services, and expressed intent to modify any custodial order

limiting his visitation, we agree with the juvenile court that continuing the

relationship is not in the child’s best interests. We decline to apply any of the

permissive exceptions to termination and affirm the juvenile court’s order.

AFFIRMED.