In the Interest of R.H., Minor Child

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0690 Filed June 29, 2022

IN THE INTEREST OF R.H., Minor Child

R.H., Father, Appellant

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Susan Cox, District

Associate Judge.

A father appeals the termination of his parental rights, arguing there was

insufficient evidence to support the statutory ground the juvenile court relied on for

termination and that termination is not in the child’s best interest. AFFIRMED.

Stephen K. Allison of Stephen Allison Law, PLLC, Des Moines, for appellant

father.

Jamie F. Deremiah, Des Moines, for appellee mother.

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

General, for appellee State.

Erin Romar of Youth Law Center, Des Moines, attorney and guardian ad

litem for minor child.

Considered by Bower, C.J., and Schumacher and Ahlers, JJ. 2

SCHUMACHER, Judge.

A father appeals the termination of his parental rights, arguing there was

insufficient evidence to support the statutory ground the juvenile court relied on for

termination and that termination is not in the child’s best interest. We find clear

and convincing evidence supports the termination of the father’s parental rights.

We also find termination is in the child’s best interest. We affirm.

I. Background Facts & Proceedings

This family came to the attention of the Iowa Department of Human Services

(DHS) because the child, born in December 2018, was exposed to the mother’s

substance abuse during pregnancy. The child’s umbilical cord was positive for

amphetamines and methamphetamine. The child was removed from parental

custody and placed with the maternal grandmother. The child was adjudicated a

child in need of assistance (CINA) in April 2019, pursuant to Iowa Code section

232.2(6)(c)(2), (n), and (o) (2019). DHS did not initially have concerns about the

father, whose relation to the child was confirmed by paternity testing. The father

engaged in services, including mental-health therapy, following a July 2019

permanency hearing.

The father committed an act of domestic abuse assault against the mother

in August 2019. He pled guilty and was placed on probation. As a condition of

probation, the father was required to complete a thirty-six week course, the Iowa

Domestic Abuse Program (IDAP). He successfully completed the program and his

probation, although his probation officer noted that the father tended to be

untruthful about his relationship with the mother. While the father was in therapy 3

from July 2019 through March 2020, domestic violence was not addressed

because the father maintained it was not an issue.

Custody of the child was transferred to the father in January 2020 subject

to a transition plan. Up to that point, the father had been successfully following

DHS recommendations. A six-week plan was put in place to close the case

through a bridge order.1 However, the CINA case never closed because issues

arose regarding the father not following guidelines about contact with the mother.

DHS remained concerned about some of the child’s behavior. Relatedly, the father

began to decline recommended services. For instance, the father reported that

the child was having night terrors but refused the offered services to address the

issue. The father also pulled the child out of daycare, which the DHS social worker

testified would negatively impact the child’s development. The father explained

1 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. f. A parent qualified for a court-appointed attorney in the juvenile court case. 4

his decision by citing safety concerns involving the COVID-19 virus. There were

also concerns about how the father’s anger toward the child would escalate when

the child would cry. And concerns remained over the father’s domestic violence.

As a result, the focus of the case as it pertained to the father shifted to working on

his mental health and domestic violence.

Despite DHS recommendations to continue therapy, the father stopped

attending in March 2020. He was discharged due to reaching maximum benefits.

The father blamed his lack of participation in therapy on losing his insurance. In

May, the father perpetrated another act of violence against the mother, hitting her

with a bathroom door. No criminal charges resulted from the incident. The DHS

social worker assigned to the family at the time testified that they were not

concerned for the child’s safety then and that the father was providing minimally

adequate parenting. Concerns remained related to the child’s emotional well-

being, most evident by the child experiencing night terrors.

The father committed another act of domestic violence against a woman in

front of the child in March 2021. An altercation ensued with the police, which

resulted in the father requiring medical treatment at a hospital. Once he was

discharged, he returned to the woman’s apartment despite a no-contact order and

threatened to kill her. The incident resulted in the father pleading guilty to domestic

abuse assault and interference with official acts resulting in bodily injury. He was

again placed on probation and required to complete another course of IDAP. At

the time of trial, he had completed six of the required thirty-six classes.

The child was removed from the father’s custody in March and placed back

with the maternal grandmother, where he remained for the rest of the proceedings. 5

The father had two supervised visits a week and also exercised additional visits

supervised by his sister. He was consistent in his supervised visitation with the

child.

The father and DHS had a tenuous relationship, particularly following the

failure of the January 2020 six-week transition plan. The DHS social worker that

worked with the family until August 2021 testified that monthly meetings sometimes

“escalated very quickly” even when the child was present. Such behavior

intensified concerns about the father’s ability to manage his anger. On at least

one occasion, DHS employees had to terminate a phone call because the father

was “escalating.” This coincided with the father’s refusal of all services until late

September or early October 2021 when he reengaged with therapy. The therapist

indicated that the father had good attendance and participation following

reengagement but had problems taking responsibility for his actions.

The father began a relationship with a woman in May 2021. That woman

was involved with DHS due to substance abuse and unsafe conditions for children

at home related to an unsanitary environment. He moved in with her around July,

and they are now engaged. The woman’s DHS case was closed in October.

Questions arose at trial over potential substance abuse by the father. He

had a prescription for hydrocodone due to back pain and fibromyalgia. He tested

positive for morphine in December 2020. It is unclear from the record before us

whether hydrocodone could result in a positive drug test for morphine. A DHS

social worker testified that there were behavioral indicators of substance abuse in

the summer of 2021, including the father appearing very thin, being unable to sit

still, and having dilated eyes. He also refused a hair drug test, resulting in a 6

presumptive positive test. His probation officer testified, however, that he did not

have facts before him that would suggest the father used illegal substances.

The State filed a petition to terminate the mother’s and father’s parental

rights in December 2021. In particular, the State cited the father’s unresolved

issues with substance abuse, mental health, and domestic violence. Following the

hearing, the court terminated both parent’s rights pursuant to Iowa Code section

232.116(1)(h) (2021). The father appeals.2

II. Standard of Review

“We review proceedings to terminate parental rights de novo. We give

weight to the juvenile court’s factual findings, especially when considering the

credibility of witnesses, but we are not bound by them.” In re A.B., 815 N.W.2d

764, 773 (Iowa 2012) (internal citation omitted) (quoting In re H.S., 805 N.W.2d

737, 745 (Iowa 2011)). “We will uphold an order terminating parental rights if there

is clear and convincing evidence of grounds for termination under Iowa Code

section 232.116.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).

III. Discussion

The father appeals the juvenile court’s ruling, alleging the State did not

establish a ground for termination. He also claims termination is not in the child’s

best interests.3

We use a three-step analysis to review termination of parental rights. In re

A.S., 906 N.W.2d 467, 472 (Iowa 2018). “First, we ‘determine whether any ground

2The mother does not appeal the termination of her parental rights. 3The father’s petition on appeal does not separate his best-interest argument from his statutory-grounds argument. But we choose to address the best interest argument under Iowa Code section 232.116(2). 7

for termination under 232.116(1) has been established.’” Id. at 472-73 (quoting In

re M.W., 876 N.W.2d 212, 219 (Iowa 2016)). If a ground is established, we must

determine whether termination is in the child’s best interest under section

232.116(2). Id. at 473. Finally, we consider whether an exception to termination

under 232.116(3) exists. Id. Because the father does not allege an exception to

termination is applicable, we need not consider that step of our analysis. See In

re P.L., 778 N.W.2d 33, 40 (Iowa 2010).

A. Statutory Ground for Termination

The father claims insufficient evidence exists to support the juvenile court’s

decision to terminate his parental rights under section 232.116(1)(h).4 In particular,

the father contends that the State did not provide clear and convincing evidence

that the child could not be returned to his custody.5 Termination is appropriate

under section 232.116(1)(h) when returning the child to the custody of the parent

4 Section 232.116(1)(h) provides for termination of parental rights when: (1) The child is three years of age or younger. (2) The child has been adjudicated a [CINA] pursuant to section 232.96. (3) The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days. (4) There is 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. 5 The State argues the father’s request for an immediate return of the child to his

custody is unpreserved because he only argued for a six-month extension at trial. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (explaining that appellate review is generally limited to matters raised and decided at the trial court level). While the father did testify as the State suggests, he also argued for an immediate return of the child in his written closing argument. In any event, given the important interests involved, we address the father’s argument challenging the statutory grounds. 8

would result in adjudicatory harm “at the present time,” which means at the time of

the termination hearing. In re A.M., 843 N.W.2d 100, 111 (Iowa 2014). Thus, to

the extent the father claims DHS wrongfully failed to follow the case plan set out

at the January 2020 dispositional hearing to return custody of the child in six

weeks, the matter is moot because we must determine if the child could be safely

returned at the time of the termination hearing in January 2022, not two years prior.

The juvenile court found the child could not safely be returned due to the

father’s ongoing issues with mental health, domestic violence, and a lack of a

protective capacity toward the child. The father highlights that past performance

by a parent may be indicative of future behavior. See In re M.S., 519 N.W.2d 398,

400 (Iowa 1994). He suggests his roughly fifteen months with the child from

January 2020 through March 2021 shows he is capable of safely parenting.

However, such a conclusion overlooks significant portions of the record before us.

First, the father has had three instances of domestic violence since the case

began, two of which resulted in criminal convictions. The second prosecuted

incident occurred after the father completed a thirty-six week IDAP course. And

while the father contends he has made improvements in regulating his behavior,

he refused to take responsibility for the second offense at the termination hearing,

largely denying the factual basis for the convictions and alleging he only pled guilty

to get the process over with. See In re D.D., 955 N.W.2d 186, 193 (Iowa 2021)

(noting the importance of acknowledging abuse before meaningful change can

occur).

While the father’s physical violence has not been directed at the child, that

does not mean his actions are without consequence. Our supreme court has 9

recognized many detrimental effects on children living in domestically violent

households, including an increased risk of becoming a victim of abuse, decreased

social competency, and the potential for post-traumatic stress disorder. In re L.H.,

904 N.W.2d 145, 153 (Iowa 2017); see also In re J.R., No. 17-0556, 2017 WL

2684405, at *3 (Iowa Ct. App. June 21, 2017) (“Children raised in homes touched

by domestic abuse are often left with deep scars, revealed in the form of increased

anxiety, insecurity, and a greater likelihood for later problems in interpersonal

relationships” (quoting In re Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct.

App. 1994))).

The domestic violence is indicative of the father’s mental-health issues,

which generally relate to the father’s inability to manage his emotions and anger.

Testimony revealed the father had a tumultuous relationship with DHS that at times

caused him to become “very escalated” with providers, sometimes in front of the

child. He became angry easily with his child when the child was upset or crying.

While he was discharged from therapy for reaching maximum benefits in March

2020, that therapy did not address his issues relating to domestic violence. And

the father did not reengage in therapy until late September 2021.

We agree that the father lacks the protective capacity necessary to return

the child to his care. Despite the father identifying behavioral concerns about the

child, including night terrors, the father failed to search for or obtain appropriate

resources for resolving the issue. He also began a new relationship with a woman

in May who had her own DHS case related to substance abuse and an unsafe

household. The father’s choice to engage in that relationship despite the evident

risks it would pose to his child demonstrates a lack of protective capacity. 10

Finally, the father testified that he could not regain custody now. He

indicated that he had additional work to do on his mental health and regulating his

emotions, as well as needing more time to prepare a home. Because section

232.116(1)(h) requires us to consider whether the child could be returned “at the

present time,” we find the juvenile court correctly found clear and convincing

evidence supporting termination.

B. Best Interest of the Child

The father also claims that termination would not be in the child’s best

interest. When considering the best interest of the 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).

Termination is in the child’s best interest. The father has unresolved issues

involving mental health and domestic violence that place the child at risk. He also

lacks the protective capacity to ensure the child’s long-term safety and growth.

Moreover, the child is particularly vulnerable given his young age. The child has

spent roughly half of his young life in the care of his maternal grandmother. The

child has done well developmentally in this placement and the placement is willing

to adopt the child. See Iowa Code § 232.116(2)(b). Termination is in the child’s

best interest.

AFFIRMED.