In the Interest of T.R., Minor Child

• Court: Court of Appeals of Iowa
• Decided: March 17, 2021
• Docket: 20-1566
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-1566 Filed March 17, 2021

IN THE INTEREST OF T.R., Minor Child,

J.R., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Carroll County, Joseph McCarville,

District Associate Judge.

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

AFFIRMED.

Ashley Beisch of Johnson Law Office, Ogden, for appellant father.

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

Attorney General, for appellee State.

George Blazek of Mundt Franck & Schumacher, Dension, attorney and

guardian ad litem for minor child.

Considered by Bower, C.J., Tabor, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021). 2

BLANE, Senior Judge.

A father appeals the termination of his parental rights to a fourteen-year-old

son, T.R. He contends the State failed to prove the statutory ground for

termination, it was not in the child’s best interests, and the parent-child relationship

should preclude termination. We reject each ground urged by the father on our de

novo review and affirm the juvenile court.

The father has been T.R.’s only parent since T.R. was an infant.1 They lived

with the paternal grandfather. A department of human services (DHS) social work

case manager testified the grandfather has always had a hand in caring for T.R.;

the father has never cared for T.R. by himself. DHS got involved with the family

when T.R. reported to school staff that the father had touched him inappropriately.

The child abuse investigation and report were founded as to sexual abuse. These

acts involved the father drunkenly sleeping naked in the child’s bed and touching

the child’s penis. T.R. was removed on September 17, 2019 and, although moved

through several placements, he has been with the same foster family since July

2020.

Throughout the case, DHS’s two main concerns have been the founded

child abuse report of sexual abuse and the father’s substance-abuse issues. The

father has a long history of substance abuse. T.R. reported his father was once

intoxicated and drove into a ditch with T.R. in the vehicle, which his father

acknowledges. There were also reports that the father was drinking to a state of

intoxication in the home while supervising T.R. T.R. has an intellectual disability

1 T.R. has had no contact with his mother for thirteen years. Her rights have been terminated, and she does not appeal. 3

and requires “supervision like a young child, which is basically a hundred percent

supervision.” The DHS social worker testified “when [the father] was drinking to

intoxication, he’s not able to provide that kind of supervision.”

The father has had several substance-abuse evaluations and began

treatment in February 2020 but was arrested and charged with operating while

under the influence of alcohol (OWI) in May. In June, he was discharged from

treatment when he tested positive for alcohol at a meeting. He started treatment

again in fall 2020 and was participating at the time of the termination hearing.

The father also has an intellectual disability. He attended a court-ordered

mental-health evaluation and completed therapy. The therapist reported he did

not meet his therapeutic goals but had gained the most that he could out of the

therapy based on his intellectual abilities.

In addition to therapy, the father has attempted to address the sexual abuse

history with some in-home services related to appropriate boundaries and

parenting skills. But as yet the father has not acknowledged any sexual abuse

occurred. Because the sexual abuse occurred while he was intoxicated, the DHS

social worker believed the ongoing substance-abuse issues would continue to

exacerbate the risk of further sexual abuse of T.R. Through multiple discussions

with service providers, the social worker believed the father did not understand

how his alcohol consumption negatively affected his parenting. The social worker

also testified the father should attend family therapy with T.R. if he regained

custody and if he was willing to admit the sexual abuse. But his continued denial

of those events has held up provision of those types of services. 4

Throughout the events, the father has lived with the paternal grandfather.

The grandfather has always assisted in the care of T.R., and the social worker did

not believe the father could care for T.R. without the grandfather’s assistance. At

the termination hearing, T.R.’s attorney made a professional statement to the

court, explaining the grandfather has recently been diagnosed with a serious

illness and has a very poor prognosis. So one of the case expectations has

become that the father will find his own living accommodations. Even though he

qualifies for entry into a group home for adults with intellectual disabilities, because

living in the group home would require the father to quit his employment, which he

likes, he has declined to enter, preferring to remain in the grandfather’s home.

The court held a termination hearing on November 10, 2020, and issued a

ruling terminating the father’s parental rights in November 23, 2020.2 The father

appeals.

“We review child-welfare proceedings de novo.” In re A.H., 950 N.W.2d 27,

33 (Iowa Ct. App. 2020). “The juvenile court’s fact findings do not bind us, but we

give them weight, particularly with regard to credibility.” Id. Our primary concern

is the best interests of the child[].” Id.

2 Neither party requested the juvenile court take judicial notice of the underlying child in need of assistance (CINA) record. Neither party offered any of the CINA exhibits as exhibits in the termination-of-parental-rights (TPR) case. And neither party offered additional TPR exhibits. The court took notice of the criminal file in the OWI case. Therefore, the only evidence before us on appeal is the trial transcript, reports filed as pleadings, and OWI record. We are able to reach our conclusions based on that record. 5

Termination ground.3 The juvenile court found sufficient evidence to

terminate the father’s parental rights pursuant to the statutory ground of Iowa Code

section 232.116(1) (2020), paragraph (f). In his petition on appeal, the father

contends the State failed to prove the ground for termination and relied excessively

on his lack of independent living and his intellectual disability. Termination under

paragraph (f) requires clear and convincing evidence:

1. The child is four years of age or older. 2. The child has been adjudicated a child in need of assistance pursuant to section 232.96. 3. The child has been removed from the physical custody of the child’s parent for at least twelve of the last eighteen months . . . . 4. There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child’s parents as provided in section 232.102.

Iowa Code § 232.116(1)(f).

We find the ground for termination is met. T.R. is more than four years old,

has been adjudicated CINA, and has been out of the father’s care for the required

timeframe. More to the point, the father’s argument appears to focus on the fourth

prong specifically. We find the evidence is clear and convincing that T.R. could

not be returned to the father’s custody at the time of the termination hearing. See

3 As we begin to address these issues, we walk a narrow line. Even though child- welfare proceedings come to us on an expedited timeline and without full briefing, a party is still expected to make its argument with citations to authority and to the record or at least to record facts. See Iowa Rs. App P. 6.201(1)(d), 6.1401–Form 5; Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (“[W]e will not speculate on the arguments [a party] might have made and then search for legal authority and comb the record for facts to support such arguments.”); Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974) (“To reach the merits of this case would require us to assume a partisan role and undertake the appellant’s research and advocacy. This role is one we refuse to assume.”). The paucity of argument in appellant’s petition forces us almost to the point of undertaking appellant’s advocacy. But we will not, as the State suggests, deem the issues waived. We choose to address the issues minimally presented. 6

In re A.M., 843 N.W.2d 100, 111 (Iowa 2014) (defining “at the present time” to

mean at the time of the termination hearing).

Contrary to the father’s position, the court did not rely excessively on his

intellectual disability, even though it is a valid ground to consider in determining

whether it is safe to return the child to the parent’s custody. See id. In this case,

the father’s intellectual disability has impacted his parenting in ways he is unable

to understand. And, by extension, he is unable to correct his conduct—alcohol

has historically exacerbated his conduct that led to committing sexual abuse

against T.R. The father is unwilling or unable to obtain the benefits of therapy and

treatment for both his substance abuse and his mental health. The father has also

been unwilling or unable to show he is able to live independently of his father by

finding his own housing. Unfortunately, patience with a parent “can soon translate

into intolerable hardship for their” child. In re A.C., 415 N.W.2d 609, 613 (Iowa

1987). There is ample evidence in this record to determine T.R. could not be

returned to his father’s care at the present time without the fear of T.R. meeting

further harm. This is especially true considering the grandfather’s current health.

Best interests. The father next contends termination was not in T.R.’s best

interests because children do better with their biological families. In making the

best-interests determination, we give primary consideration to the child’s safety;

the best placement for furthering their long-term nurturing and growth; as well as

their physical, mental, and emotional condition and needs. Iowa Code

§ 232.116(2); see In re P.L., 778 N.W.2d 33, 37 (Iowa 2010). Safety and the need

for a permanent home mark the “defining elements” in a child’s best interests. In

re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially). 7

We find termination to be in T.R.’s best interests. T.R. has special

intellectual needs, and the DHS workers did not believe the father could provide

that level of care. The father has put T.R. in danger by drunk driving with his son

in the car. And he has perpetrated sexual abuse against his son. The father has

not addressed his substance-abuse issues and does not even acknowledge the

sexual abuse T.R. reported occurred. Under those circumstances, the

considerations of T.R.’s safety and long- and short-term well-being require

termination of the father’s rights.

Exceptions. Finally, the father asks the court to apply a statutory exception

under section 232.116(3) to forego termination. The father cites paragraph (a) for

when “[a] relative has legal custody of the child” and paragraph (c) for when

“termination would be detrimental to the child at the time due to the closeness of

the parent-child relationship.” See Iowa Code § 232.116(3)(a), (c). But application

of those factors is permissive, not mandatory. See In re A.R., 932 N.W.2d 588,

591 (Iowa Ct. App. 2019). And we do not find the record supports applying either

of them to withhold termination. The juvenile court rejected the notion of the

grandfather assuming a guardianship given his health situation, and we agree.

The current foster parents do not want to assume a guardianship, but prefer to

adopt and have indicated this desire. We see no reason to believe severing the

parental relationship will be detrimental to T.R. Finding no grounds for reversal,

we affirm.