IN THE COURT OF APPEALS OF IOWA
No. 21-0301 Filed May 26, 2021
IN THE INTEREST OF R.E., Minor Child,
A.E., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Bremer County, Peter B. Newell,
District Associate Judge.
The father appeals the termination of his parental rights. AFFIRMED.
Jamie L. Schroeder of The Sayer Law Group, P.C., Waterloo, for appellant
father.
Thomas J. Miller, Attorney General, and Natalie Deerr, Assistant Attorney
General, for appellee State.
Kimberly Lange of Juvenile Public Defender’s Office, Waterloo, attorney
and guardian ad litem for minor child.
Considered by Greer, P.J., Schumacher, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021). 2
GREER, Presiding Judge.
The father appeals the termination of his parental rights to his child, R.E,
born in 2017. The juvenile court terminated the father’s parental rights pursuant
to Iowa Code section 232.116(1)(e) (2020). On appeal, the father claims the State
failed to prove grounds for termination, arguing the child has not been removed
from his care for six consecutive months and he has maintained significant and
meaningful contact with the child. He next claims termination of his parental rights
is not in the child’s best interests, and he asserts the court should have applied a
permissive exception to termination based on the mother having custody of the
child and his close bond with the child. See Iowa Code § 232.116(3)(a), (c).
Finally, the father maintains the juvenile court should have ordered a hearing on
his application for a bridge order. See id. § 232.103A (2021).
I. Facts and Earlier Proceedings
This family came to the attention of the Iowa Department of Human Services
(DHS) in April 2019 due to concerns of substance abuse by both parents, the
father’s criminal activity related to his drug activities, and domestic violence issues
between the parents. At the time, the child was residing with the mother and the
father was incarcerated for crimes related to drug use. The child was removed
from the mother’s care and placed with the maternal grandparents in June 2019.
A child-in-need-of-assistance (CINA) petition followed. Over the twenty-one
months between the removal of the child and the termination proceedings, the
father was either in jail or in a residential treatment facility for almost fourteen of
those months. He acknowledges his legal issues, as well as substance-abuse and
mental-health issues. The mother regained custody of the child in May 2020. But 3
as to the father, in September 2020, the State petitioned for termination of his
parental rights. At the time of the January 2021 termination hearing, the child had
been residing with the mother for seven months. The father never had physical
custody of the child.
The father had opportunities for contact after he was discharged from the
county jail in May 2019 and placed on supervised probation. Following his release,
DHS offered the father supervised visits with the child twice per week. He attended
one visit in June and two in July but missed others. DHS reported he sometimes
arrived late and ended some visits early. He also was not compliant with DHS
drug testing efforts. Then, in August 2019, the father was arrested for possession
of methamphetamine, drug paraphernalia, and a stolen firearm, a violation of the
terms of his probation. He remained incarcerated until March 2020; ultimately he
received a ten-year suspended sentence related to the charges and probation
violation and was placed on probation for five-years.
Once the father was able to have visits again after his March 2020 release
from incarceration, the visits were scheduled via video conferencing because of
the COVID-19 public health emergency. Those visits were not successful in the
father’s view, as he felt the video chat was not valuable in light of the child’s young
age. In April 2020, the father told DHS he refused to participate in drug testing
until he was allowed face-to-face visits with the child. He skipped two drug tests
in April, one in May, and three in June. Additionally, a probation violation report
against the father was filed in May. For whatever reasons, the father did participate
in a visit with the child in June and acknowledged there was an active warrant out
for his arrest due to the probation violation. He was arrested in July and ordered 4
to participate in a 180-day stint at a residential treatment facility. He entered the
facility in August but left early that month, resulting in an additional probation
violation. He was arrested again in September; this time he was sentenced to a
one-year suspended sentence and was ordered to spend one year in the
residential facility or until maximum benefits were achieved. At the time of the
termination hearing, the father’s probation officer was in the process of filing a
violation report because the father again contacted the mother in violation of a no-
contact order.
During the twenty-one-month period DHS has been involved with the family,
the father was in the community without court supervision for about four months—
between March to July 2020. Between May and July 2020 there were ten non-
DHS authorized unsupervised visits between the father, the child, and the mother,
despite a no-contact order between the parents. The father claims he had an
additional contact with the child in September 2020, but the mother says last
contact was in August. She also testified the unofficial visits were of short duration,
often when the child was sleeping. The family’s DHS caseworker testified she
believed the unauthorized visits were detrimental to the mother and child. The
father argues he has maintained significant contact with the child and provided
monetary support over the course of the twenty-one months. Yet, the support
consisted of two payments totaling approximately $120, disposable diapers, a few
items of clothing, and a bicycle. He has paid no child support to the mother.
The DHS caseworker testified the father did not participate in substance-
abuse or mental-health treatment throughout these proceedings, although he took
his prescribed medication to treat anxiety and depression. The father admits 5
struggling to maintain sobriety when out of jail or the residential facility. At the
termination hearing, the father offered he was to begin substance-abuse treatment
through an agency and that he was providing clean drug tests while at the
residential facility. Yet, during the twenty-one month period since removal, he
provided only one drug test for DHS. With these facts in mind, we address the
father’s claims.
II. Standard of Review and Error Preservation.
We review termination-of-parental-rights proceedings de novo. In re P.L.,
778 N.W.2d 33, 40 (Iowa 2010). Our primary consideration is the best interest of
the child. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).
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IN THE COURT OF APPEALS OF IOWA
No. 21-0301 Filed May 26, 2021
IN THE INTEREST OF R.E., Minor Child,
A.E., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Bremer County, Peter B. Newell,
District Associate Judge.
The father appeals the termination of his parental rights. AFFIRMED.
Jamie L. Schroeder of The Sayer Law Group, P.C., Waterloo, for appellant
father.
Thomas J. Miller, Attorney General, and Natalie Deerr, Assistant Attorney
General, for appellee State.
Kimberly Lange of Juvenile Public Defender’s Office, Waterloo, attorney
and guardian ad litem for minor child.
Considered by Greer, P.J., Schumacher, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021). 2
GREER, Presiding Judge.
The father appeals the termination of his parental rights to his child, R.E,
born in 2017. The juvenile court terminated the father’s parental rights pursuant
to Iowa Code section 232.116(1)(e) (2020). On appeal, the father claims the State
failed to prove grounds for termination, arguing the child has not been removed
from his care for six consecutive months and he has maintained significant and
meaningful contact with the child. He next claims termination of his parental rights
is not in the child’s best interests, and he asserts the court should have applied a
permissive exception to termination based on the mother having custody of the
child and his close bond with the child. See Iowa Code § 232.116(3)(a), (c).
Finally, the father maintains the juvenile court should have ordered a hearing on
his application for a bridge order. See id. § 232.103A (2021).
I. Facts and Earlier Proceedings
This family came to the attention of the Iowa Department of Human Services
(DHS) in April 2019 due to concerns of substance abuse by both parents, the
father’s criminal activity related to his drug activities, and domestic violence issues
between the parents. At the time, the child was residing with the mother and the
father was incarcerated for crimes related to drug use. The child was removed
from the mother’s care and placed with the maternal grandparents in June 2019.
A child-in-need-of-assistance (CINA) petition followed. Over the twenty-one
months between the removal of the child and the termination proceedings, the
father was either in jail or in a residential treatment facility for almost fourteen of
those months. He acknowledges his legal issues, as well as substance-abuse and
mental-health issues. The mother regained custody of the child in May 2020. But 3
as to the father, in September 2020, the State petitioned for termination of his
parental rights. At the time of the January 2021 termination hearing, the child had
been residing with the mother for seven months. The father never had physical
custody of the child.
The father had opportunities for contact after he was discharged from the
county jail in May 2019 and placed on supervised probation. Following his release,
DHS offered the father supervised visits with the child twice per week. He attended
one visit in June and two in July but missed others. DHS reported he sometimes
arrived late and ended some visits early. He also was not compliant with DHS
drug testing efforts. Then, in August 2019, the father was arrested for possession
of methamphetamine, drug paraphernalia, and a stolen firearm, a violation of the
terms of his probation. He remained incarcerated until March 2020; ultimately he
received a ten-year suspended sentence related to the charges and probation
violation and was placed on probation for five-years.
Once the father was able to have visits again after his March 2020 release
from incarceration, the visits were scheduled via video conferencing because of
the COVID-19 public health emergency. Those visits were not successful in the
father’s view, as he felt the video chat was not valuable in light of the child’s young
age. In April 2020, the father told DHS he refused to participate in drug testing
until he was allowed face-to-face visits with the child. He skipped two drug tests
in April, one in May, and three in June. Additionally, a probation violation report
against the father was filed in May. For whatever reasons, the father did participate
in a visit with the child in June and acknowledged there was an active warrant out
for his arrest due to the probation violation. He was arrested in July and ordered 4
to participate in a 180-day stint at a residential treatment facility. He entered the
facility in August but left early that month, resulting in an additional probation
violation. He was arrested again in September; this time he was sentenced to a
one-year suspended sentence and was ordered to spend one year in the
residential facility or until maximum benefits were achieved. At the time of the
termination hearing, the father’s probation officer was in the process of filing a
violation report because the father again contacted the mother in violation of a no-
contact order.
During the twenty-one-month period DHS has been involved with the family,
the father was in the community without court supervision for about four months—
between March to July 2020. Between May and July 2020 there were ten non-
DHS authorized unsupervised visits between the father, the child, and the mother,
despite a no-contact order between the parents. The father claims he had an
additional contact with the child in September 2020, but the mother says last
contact was in August. She also testified the unofficial visits were of short duration,
often when the child was sleeping. The family’s DHS caseworker testified she
believed the unauthorized visits were detrimental to the mother and child. The
father argues he has maintained significant contact with the child and provided
monetary support over the course of the twenty-one months. Yet, the support
consisted of two payments totaling approximately $120, disposable diapers, a few
items of clothing, and a bicycle. He has paid no child support to the mother.
The DHS caseworker testified the father did not participate in substance-
abuse or mental-health treatment throughout these proceedings, although he took
his prescribed medication to treat anxiety and depression. The father admits 5
struggling to maintain sobriety when out of jail or the residential facility. At the
termination hearing, the father offered he was to begin substance-abuse treatment
through an agency and that he was providing clean drug tests while at the
residential facility. Yet, during the twenty-one month period since removal, he
provided only one drug test for DHS. With these facts in mind, we address the
father’s claims.
II. Standard of Review and Error Preservation.
We review termination-of-parental-rights proceedings de novo. In re P.L.,
778 N.W.2d 33, 40 (Iowa 2010). Our primary consideration is the best interest of
the child. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). An order terminating
parental rights will be upheld if there is clear and convincing evidence of grounds
for termination under Iowa Code section 232.116(1) (2020). In re D.W., 792
N.W.2d 703, 706 (Iowa 2010). The State concedes the father preserved error on
his claims.
III. Analysis
We review termination of parental rights using a three-step analysis. P.L.,
778 N.W.2d at 39. First, the court must determine whether a ground for termination
under Iowa Code section 232.116(1) has been established. Id. Next, if the ground
for termination is established, the court must then apply the best-interest
framework set out in Iowa Code section 232.116(2). Id. Third and finally, if the
best-interest framework supports termination of parental rights, the court must
consider if permissive statutory exceptions in Iowa Code section 232.116(3) weigh
against the termination of parental rights. Id. 6
A. Grounds for Termination under Iowa Code Section 232.116(1)(e).
For termination of parental rights to be proper under Iowa Code section
232.116(1)(e), the State must prove the following by clear and convincing
evidence:
(1) The child has been adjudicated a [CINA] pursuant to section 232.96. (2) The child has been removed from the physical custody of the child’s parents for a period of at least six consecutive months. (3) There is clear and convincing evidence that the parents have not maintained significant and meaningful contact with the child during the previous six consecutive months and have made no reasonable efforts to resume care of the child despite being given the opportunity to do so. . . .
The father contests only the second and third elements. As to the second element,
the father theorizes the return of the child to the mother constitutes a return of
custody to him as well. We disagree. Our review requires that we view the
elements under the lens of the parent’s individual skillset and relationship with the
child. He cannot piggy-back on the parent who is doing the work to successfully
nurture the child. Here, the father does not live with the child and has never had
physical custody during the tenure of this case. Contact between the father and
the child was solely within the discretion of DHS at the time the child was returned
to the mother. And the order returning the child to the mother’s custody did not
mention the father; the order pertained only to her custody of the child. See In re
N.M., 491 N.W.2d 153, 155–56 (Iowa 1992) (holding that a father’s custody of
children did not preclude termination of non-custodial mother’s parental rights); In
re C.H., No. 16-2179, 2017 WL 1278368, at *3 (Iowa Ct. App. Apr. 5, 2017)
(determining removal means removal from either parent). The child has not been 7
in the care of the father for a period of at least six consecutive months. So the
father did not meet the requirements for the second prong.
Next, the father contests the third element. He argues the State failed to
show by clear and convincing evidence that he has not maintained significant and
meaningful contact with R.E. during the previous six months and failed to make
reasonable efforts to resume care of the child. Under Iowa Code section
232.116(1)(e)(3),
“[S]ignificant and meaningful contact” includes but is not limited to the affirmative assumption by the parents of the duties encompassed by the role of being a parent. This affirmative duty, in addition to financial obligations, requires continued interest in the child, a genuine effort to complete the responsibilities prescribed in the case permanency plan, a genuine effort to maintain communication with the child, and requires that the parents establish and maintain a place of importance in the child’s life.
The father points to the eighteen total visits, eight official and ten unauthorized,
since removal as demonstrating he meets these requirements. But there is more
to the role of being a parent. The expectations set for the father were to participate
in substance-abuse treatment, mental-health counseling, drug testing, and
maintaining contact with the child. While the father showed some interest in
maintaining contact with the child, he failed to maintain significant and meaningful
contact. Even in the eight authorized contacts he attended over the twenty-one
months, there were times he arrived late or left early. When visits were required
to be over video, the father only took advantage of remote visitation one time.
While we understand remote visits are not ideal, the COVID-19 public health
emergency justified these safety precautions. The unauthorized contacts covertly
scheduled between the mother and father violated the case permanency plan and 8
no-contact order and it was unknown if the child actually had contact with the
father. Overall, the father failed to demonstrate behavior showing his ability to be
a successful, active, and involved parent.
Still, the father asserts he was not able to visit while incarcerated even if he
had wanted to do so. True, the father has been incarcerated or committed to
residential treatment facilities for most of the child’s life. “[A parent] cannot use . . .
incarceration as a justification for . . . lack of relationship with the child. This is
especially true when the incarceration results from a lifestyle that is chosen in
preference to, and at the expense of, a relationship with the child.” In re M.M.S.,
502 N.W.2d 4, 8 (Iowa 1993).
As for the other requirements established by DHS, the father failed to follow
through. Although treatment was recommended, the father failed to complete the
treatment plan. The father admitted he was not able to stay sober throughout most
of the time DHS was involved, except for the times he was incarcerated. Likewise,
he did not comply with required mental-health counseling. As for the requirement
to submit to drug testing, the father only submitted to one test for DHS, and it was
positive. Other tests were refused.1 The father resisted rules and the services
offered by DHS. And in a candid moment with the DHS caseworker, the father
addressed his continuing involvement in the criminal system, admitting “it was old
playground and old playmates and he wasn’t able to stay true to a course of
sobriety [and] responsible living.” Because of the father’s consistent lack of contact
with the child, his inability to work with DHS, and his lack of availability due to
1The refused drug tests led to the father’s probation revocation in the spring and summer of 2020. 9
incarceration, we find that the father has not maintained significant and meaningful
contact with the child, nor has he made reasonable efforts to resume care of the
child.
B. Best Interests of the Child.
Next, we examine whether the termination is in the best interest of the child.
See Iowa Code § 232.116(2). “In determining whether to terminate the rights of a
parent . . . the court shall 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.” Id. The
father claims the juvenile court erred in finding termination is in the child’s best
interest. But the father has been absent for most of the child’s life due to his
criminal acts and has resisted taking the steps necessary to show he can
successfully parent the child; namely substance-abuse and mental-health
treatment. “Meeting the case plan terms offers a parent the opportunity to show
his or her stability.” In re E.P., No. 19-1783, 2020 WL 1049540, at *3 (Iowa Ct.
App. Mar. 4, 2020). The father exhibited little interest in complying with the case
permanency plan, willingly flouting the plan directives. He has not shown he can
take on a stable parenting role to nurture the child. “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.” P.L., 778 N.W.2d at
41. Thus, we find termination of the father’s parental rights is in the child’s best
interest. 10
C. Statutory Exceptions to Termination.
The father also points to permissive exceptions to termination, arguing we
should apply 232.116(3)(a) and (c). Section 232.116(3)(a) applies when a relative
has legal custody of the child. While it is true that the mother now has custody of
the child, we do not think it is appropriate to apply the exception here. The father
is currently not allowed contact with the mother, when they do have contact it is
unhealthy, and she has said she supports termination of his parental rights. The
DHS caseworker said the mother struggles to stay on track with her sobriety and
healthy parenting goals when the father sporadically visits her and the child.
Further, this child deserves permanency and stability, which would be disturbed if
the father is in and out of R.E.’s life in between stints in jail and residential facilities.
See In re A.C., 415 N.W.2d 609, 613 (Iowa 1987) (“The crucial days of childhood
cannot be suspended while parents experiment with ways to face up to their own
problems.”). Thus, we decline to apply section 232.116(3)(a) to save the parent-
child relationship.
The father also points to section 232.116(3)(c), which applies when “[t]here
is clear and convincing evidence that the termination would be detrimental due to
the closeness of the parent-child relationship.” The father’s sister testified to
observations of the strong bond between the father and child, describing them as
“inseparable.” But she also admitted that, to her knowledge, the father had not
seen the child for six months prior to the termination hearing. We do appreciate
that the father loves this child. But, while the child has asked about the father at
times, given the months he has been absent from the child’s life, we cannot say
the child is so bonded to the father that this exception should apply. We decline 11
to apply either exception in Iowa Code section 232.116(3) to prevent termination
of the father’s parental rights.
D. Denial of Application for a Bridge Order.
The day before the termination hearing, the father applied for a bridge order
with the juvenile court. See Iowa Code § 232.103A (2021). He asked for the
juvenile court to continue the termination hearing so that he could be heard on his
application, arguing that since the mother had custody and the child was safe with
her, a bridge order would allow the CINA case to close. The juvenile court denied
his request. To qualify for a bridge order, certain criteria must be met. Section
232.103A provides:
1. The juvenile court may close a [CINA] case by transferring jurisdiction over the child’s custody, physical care, and visitation to the district court through a bridge order, if all of the following criteria are met: a. The child has been adjudicated a [CINA] in an active juvenile court case, and a dispositional order in that case is in place. b. Paternity of the child has been legally established, including by operation of law due to the individual’s marriage to the mother at the time of conception, birth, or at any time during the period between conception and birth of the child, by order of a court of competent jurisdiction, or by administrative order when authorized by state law. c. The child is safely placed by the juvenile court with a parent. d. There is not a current district court order for custody in place. e. The juvenile court has determined that the [CINA] case can safely close once orders for custody, physical care, and visitation are entered by the district court.
Here, the DHS caseworker testified she did not feel the CINA case could be safely
closed due to the unhealthy dynamic between the father and the mother. And the
mother and father proposed no plan for ongoing custody or visitation, and past
interactions had not been healthy. To that end, the juvenile court reasoned “[the
father] did not have any proposal as to what a bridge order should look like other 12
than at the discretion of the mother. My continued fear for the family is the
unhealthy dynamic [he] brings into his family with his criminal mentality.” Because
the criteria for a bridge order were not established, we agree with the juvenile court
and the DHS caseworker’s concerns. See In re L.M., No. 19-0426, 2019 WL
2373649, at *3 n.2 (Iowa Ct. App. June 5, 2019) (noting continued concerns for the
children’s safety precluded the use of a bridge order).
IV. Conclusion.
We affirm the juvenile court’s order terminating the father’s parental rights
to this child under Iowa Code section 232.116(1)(e). Termination in is the child’s
best interests, and we decline to apply any of the permissive exceptions to
termination under section 232.116(3). We agree with the juvenile court that a
bridge order was not appropriate in this case.
AFFIRMED.