In the Interest of S.M., Minor Child, F.M., Father

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-0388 Filed May 14, 2014

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

F.M., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Constance Cohen,

Associate Juvenile Judge.

A father appeals from the order terminating his parental rights.

AFFIRMED.

Nicholas Einwalter, Des Moines, for appellant father.

Steven E. Clarke of Clarke Law Office, West Des Moines, for mother.

Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant

Attorney General, John P. Sarcone, County Attorney, and Stephanie Brown,

Assistant County Attorney, for appellee State.

Michelle R. Saveraid of the Youth Law Center, Des Moines, for minor

child.

Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013). 2

MAHAN, S.J.

A father appeals the termination of his parental rights to his child. He

contends the State failed to prove the grounds for termination by clear and

convincing evidence and that termination is not in the child’s best interests. We

review his claims de novo. See In re A.B., 815 N.W.2d 764, 773 (Iowa 2012).

The child came to the attention of the Iowa Department of Human

Services (DHS) in April 2012 after it was reported the father had assaulted the

mother in the child’s presence. The child was two years old at the time of the

incident. The child came to the juvenile court’s attention just months later, in

August 2012, when both parents were arrested for violating a no-contact order

entered as a result of their history of domestic abuse. The child was placed with

a paternal aunt, and a child in need of assistance (CINA) petition was filed.

The father has been involved with the DHS and juvenile court before. In

2001, his parental rights to two other children were terminated after

unsuccessfully addressing his substance abuse issues in spite of years of DHS

and court involvement. Although the father had made enough progress to be

reunited with the children in February 1999, after a year of services, the progress

was short-lived, and the children were removed from his care in February 2000.

The father consented to termination in February 2001.

This time, the father participated in services initially, and was allowed

overnight visitation by February 2013. Again, progress was short-lived, and by

August 2013 the father was exhibiting concerning behavior regarding alcohol

abuse and violence. He was arrested and incarcerated for operating while

intoxicated (OWI) and assaulting a relative. The State filed a petition to terminate 3

the father’s parental rights in December 2013. In February 2014, following a

hearing, the juvenile court terminated the father’s parental rights pursuant to Iowa

Code sections 232.116(1)(d), (g), and (h) (2013).

Because we find the State proved the grounds for termination under

section 232.116(1)(d), we can affirm. See In re S.R., 600 N.W.2d 63, 64 (Iowa

Ct. App. 1999) (holding the court need only find grounds to terminate under one

of the subsections cited by the juvenile court to affirm). Termination is

appropriate under section 232.116(1)(d) where the State proves by clear and

convincing evidence:

(1) The court has previously adjudicated the child to be a child in need of assistance after finding the child to have been physically or sexually abused or neglected as the result of the acts or omissions of one or both parents, or the court has previously adjudicated a child who is a member of the same family to be a child in need of assistance after such a finding. (2) Subsequent to the child in need of assistance adjudication, the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services.

Iowa Code § 232.116(1)(d). The father does not dispute that the criteria of

section 232.116(1)(d)(1) has been shown. He instead argues the circumstances

that led to the CINA adjudication no longer exist.

Despite the father’s claims, the evidence clearly shows the circumstances

that led to the CINA adjudication continue to exist. It is true the father initially

participated in services following the child’s CINA adjudication and had nearly

completed the batterer’s education program by the August 2013 permanency

hearing. However, he was arrested for OWI shortly thereafter with a blood

alcohol concentration of .222 and was later arrested for assaulting his nephew. 4

The father was also attempting to contact the mother in violation of a protective

order. The record shows the father does not have an appreciation of his

substance abuse or domestic violence issues. These ongoing concerns led to

the child’s CINA adjudication.

We also find clear and convincing evidence that termination is in the

child’s best interests. The father’s parental rights to two other children were

terminated when the father was unable to make the changes necessary to safely

parent them. A dozen years later, he is in no better position. The father’s use of

alcohol and his inability to abstain from violent behavior, especially when under

periods of stress, shows he has not adequately addressed his issues. The

evidence further shows he lacks an appreciation of them. Not only does this

render him unable to have the child safely returned to him at this time or in the

foreseeable future, but it prevents the father from having a meaningful

relationship with the child. At the time of termination, the father had not seen the

child in approximately six months due to his incarceration. Even when he is able

to see the child, the visitations must be fully supervised.

In making the best-interests determination, we give primary consideration

to the child’s safety, the best placement for furthering the child’s long-term

nurturing and growth, and the child’s physical, mental, and emotional conditions

and needs. See Iowa Code § 232.116(2); In re P.L., 778 N.W.2d 33, 39 (Iowa

2010). Given the father’s inability to resume care of the child, his sporadic

presence in her life, and the safety concerns he presents, we find termination is

in the child’s best interests and affirm.