IN THE COURT OF APPEALS OF IOWA
No. 24-0907 Filed September 4, 2024
IN THE INTEREST OF W.P., Minor Child,
Z.P., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Brent Pattison, Judge.
A father appeals the termination of his parental rights over his child.
AFFIRMED.
Bryan Webber of Carr Law Firm, P.L.C., Des Moines, for appellant father.
Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney
General, for appellee State.
Nicole Garbis Nolan of Youth Law Center, Des Moines, attorney and
guardian ad litem for minor child.
Considered by Schumacher, P.J., Buller, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2024). 2
VOGEL, Senior Judge.
After a young girl spent twenty-three of the past thirty months in foster care,
the State moved to terminate her mother’s and father’s parental rights.1 The
father’s rights were terminated under Iowa Code section 232.116(1)(h). He
appeals, arguing he was sidelined as a parent while social workers focused on
reunifying the mother and child and that the child can be returned to his custody.
On our de novo review, we agree with the juvenile court. The father’s criminal
conduct and history of substance use kept him from caring for his child, and the
child could not be placed in his custody at the time of the termination hearing.
Because clear and convincing evidence supports termination, termination is in the
child’s best interest, and no statutory grounds impede termination, we affirm.
I. Factual Background and Proceedings.
The child came to the attention of the Iowa Department of Health and
Human Services (HHS) quickly after she was born in October 2021—the mother
had a history of substance use and had recently resumed using
methamphetamine. The child was removed from her mother’s custody when she
was six weeks old and placed with foster parents.
The father learned he was the child’s biological father in early 2022 after
court-ordered paternity testing. At the time, the father was on parole and conveyed
willingness to participate in court services and parenting. However, that was short
lived—he was sent back to prison in May 2022 after threatening to kill another
1 The mother consented to the termination under Iowa Code section 232.116(1)(a)
(2024). She does not appeal. 3
person in his work-release unit. He remained in prison until April 2023, when he
moved into a supervised, sober-living facility.
While the father was imprisoned, the mother made good progress toward
sobriety. Indeed, she received an extension in the child-in-need-of-assistance
case in fall 2022 and was later reunified with the child in December 2022. Yet in
July 2023, the mother suffered a setback and the child was again placed with the
foster parents. In December 2023, the mother and child were again reunified, but
only for a brief period. Roughly two weeks later, the mother requested that the
child be returned to foster care. With the mother unable to meet the child’s needs,
the court again placed the child with foster parents in early January 2024.
All this time, HHS’s reunification efforts largely focused on the mother. Yet
the father was also never able to care for the child. As the juvenile court explained,
“each time [the child] has been removed from [the mother], [the father] has been
unable to step up as a custodian because he has been in some form of custody—
first at the Fort, then in Prison, and finally in the supervised living program at
Kingdom Living.” Still, the father asserted he was making progress toward his
sobriety.
By March 2024, the child was still in foster care and the mother believed
she could no longer provide the stability that the child needed. Because of the
child’s prolonged placement in foster care,2 and the parents’ discrete inabilities to
2 To put a finer point on it, the child was born in October 2021, placed with her
foster family in November 2021, returned to her mother’s custody in December 2022, placed with the foster family in July 2023, returned to her mother’s custody in December 2023, and placed again with the foster family in January 2024. The timeline of this case thus shows the child experienced significant instability during the first two and a half years of her life. 4
care for her, the State moved to terminate both the mother’s and father’s parental
rights.
After a two-day termination hearing, held on March 25 and April 5, 2024,
the district court terminated both parents’ rights to the child. Relevant here, the
court first noted that long-term sobriety remains a concern for the father. Though
his progress while supervised was encouraging, the father has a history of
relapsing after leaving supervised settings. At the time of the hearing, the father
had only recently moved out of the supervised-living facility. Consequently, the
father could not show any meaningful period of independent sobriety. To
complicate matters further, the father became engaged to and began cohabitating
with a woman with a similar history of substance use—who was using
methamphetamine just months before the termination hearing.
Second, while the father marshaled several letters and witnesses in support
of his progress, the court determined these letters and supportive witnesses were
“less probative about whether [the father] is ready to care for [the child] full time,”
nor were they instructive for “what is in [her] best interests in the long term.”
Critically, “[m]ost of the letter writers have never met” the child. Nor did “some of
the writers” know the father “had [a] prior child welfare case, that his prior children
have not grown up in his custody, and that he had been unavailable to take custody
of [the child] at every stage when he was needed in this case.”
Finally, the child’s therapist believed the child should stay with her foster
parents. The therapist believed it would be “devastating” for the child to lose the
connection with her foster family—the family she has been with “since she was just
a few weeks old” and thus has “bonded with since she was a new infant.” 5
The court terminated the father’s parental rights under Iowa Code
section 232.116(1)(h). Under that section, the court found the child was two and
a half years old at the time of the hearing, had been in foster care “for 23 of the 30
months the case has been open,” could not be placed in her father’s custody, and
that termination was in the child’s best interest.
The father appeals, arguing the State failed to carry its burden under
section 232.116(1)(h) and that termination does not serve his child’s best interests.
II. Analysis.
A. Termination under Iowa Code section 232.116(1)(h).
We review proceedings terminating parental rights de novo. In re M.W.,
876 N.W.2d 212, 219 (Iowa 2016). The juvenile court’s factual findings are
nevertheless entitled to weight, as the trial court is in the best position to view
witnesses and assess credibility. Id.
Iowa’s three-step process to determine whether a parent’s rights should be
terminated is well established and familiar.
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IN THE COURT OF APPEALS OF IOWA
No. 24-0907 Filed September 4, 2024
IN THE INTEREST OF W.P., Minor Child,
Z.P., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Brent Pattison, Judge.
A father appeals the termination of his parental rights over his child.
AFFIRMED.
Bryan Webber of Carr Law Firm, P.L.C., Des Moines, for appellant father.
Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney
General, for appellee State.
Nicole Garbis Nolan of Youth Law Center, Des Moines, attorney and
guardian ad litem for minor child.
Considered by Schumacher, P.J., Buller, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2024). 2
VOGEL, Senior Judge.
After a young girl spent twenty-three of the past thirty months in foster care,
the State moved to terminate her mother’s and father’s parental rights.1 The
father’s rights were terminated under Iowa Code section 232.116(1)(h). He
appeals, arguing he was sidelined as a parent while social workers focused on
reunifying the mother and child and that the child can be returned to his custody.
On our de novo review, we agree with the juvenile court. The father’s criminal
conduct and history of substance use kept him from caring for his child, and the
child could not be placed in his custody at the time of the termination hearing.
Because clear and convincing evidence supports termination, termination is in the
child’s best interest, and no statutory grounds impede termination, we affirm.
I. Factual Background and Proceedings.
The child came to the attention of the Iowa Department of Health and
Human Services (HHS) quickly after she was born in October 2021—the mother
had a history of substance use and had recently resumed using
methamphetamine. The child was removed from her mother’s custody when she
was six weeks old and placed with foster parents.
The father learned he was the child’s biological father in early 2022 after
court-ordered paternity testing. At the time, the father was on parole and conveyed
willingness to participate in court services and parenting. However, that was short
lived—he was sent back to prison in May 2022 after threatening to kill another
1 The mother consented to the termination under Iowa Code section 232.116(1)(a)
(2024). She does not appeal. 3
person in his work-release unit. He remained in prison until April 2023, when he
moved into a supervised, sober-living facility.
While the father was imprisoned, the mother made good progress toward
sobriety. Indeed, she received an extension in the child-in-need-of-assistance
case in fall 2022 and was later reunified with the child in December 2022. Yet in
July 2023, the mother suffered a setback and the child was again placed with the
foster parents. In December 2023, the mother and child were again reunified, but
only for a brief period. Roughly two weeks later, the mother requested that the
child be returned to foster care. With the mother unable to meet the child’s needs,
the court again placed the child with foster parents in early January 2024.
All this time, HHS’s reunification efforts largely focused on the mother. Yet
the father was also never able to care for the child. As the juvenile court explained,
“each time [the child] has been removed from [the mother], [the father] has been
unable to step up as a custodian because he has been in some form of custody—
first at the Fort, then in Prison, and finally in the supervised living program at
Kingdom Living.” Still, the father asserted he was making progress toward his
sobriety.
By March 2024, the child was still in foster care and the mother believed
she could no longer provide the stability that the child needed. Because of the
child’s prolonged placement in foster care,2 and the parents’ discrete inabilities to
2 To put a finer point on it, the child was born in October 2021, placed with her
foster family in November 2021, returned to her mother’s custody in December 2022, placed with the foster family in July 2023, returned to her mother’s custody in December 2023, and placed again with the foster family in January 2024. The timeline of this case thus shows the child experienced significant instability during the first two and a half years of her life. 4
care for her, the State moved to terminate both the mother’s and father’s parental
rights.
After a two-day termination hearing, held on March 25 and April 5, 2024,
the district court terminated both parents’ rights to the child. Relevant here, the
court first noted that long-term sobriety remains a concern for the father. Though
his progress while supervised was encouraging, the father has a history of
relapsing after leaving supervised settings. At the time of the hearing, the father
had only recently moved out of the supervised-living facility. Consequently, the
father could not show any meaningful period of independent sobriety. To
complicate matters further, the father became engaged to and began cohabitating
with a woman with a similar history of substance use—who was using
methamphetamine just months before the termination hearing.
Second, while the father marshaled several letters and witnesses in support
of his progress, the court determined these letters and supportive witnesses were
“less probative about whether [the father] is ready to care for [the child] full time,”
nor were they instructive for “what is in [her] best interests in the long term.”
Critically, “[m]ost of the letter writers have never met” the child. Nor did “some of
the writers” know the father “had [a] prior child welfare case, that his prior children
have not grown up in his custody, and that he had been unavailable to take custody
of [the child] at every stage when he was needed in this case.”
Finally, the child’s therapist believed the child should stay with her foster
parents. The therapist believed it would be “devastating” for the child to lose the
connection with her foster family—the family she has been with “since she was just
a few weeks old” and thus has “bonded with since she was a new infant.” 5
The court terminated the father’s parental rights under Iowa Code
section 232.116(1)(h). Under that section, the court found the child was two and
a half years old at the time of the hearing, had been in foster care “for 23 of the 30
months the case has been open,” could not be placed in her father’s custody, and
that termination was in the child’s best interest.
The father appeals, arguing the State failed to carry its burden under
section 232.116(1)(h) and that termination does not serve his child’s best interests.
II. Analysis.
A. Termination under Iowa Code section 232.116(1)(h).
We review proceedings terminating parental rights de novo. In re M.W.,
876 N.W.2d 212, 219 (Iowa 2016). The juvenile court’s factual findings are
nevertheless entitled to weight, as the trial court is in the best position to view
witnesses and assess credibility. Id.
Iowa’s three-step process to determine whether a parent’s rights should be
terminated is well established and familiar. We consider “(1) whether the State
proved any grounds for termination, (2) whether termination is in the child’s best
interests, and (3) whether any exceptions save the parent–child relationship.” In
re W.T., 967 N.W.2d 315, 332 (Iowa 2021). The State carries the burden to show
by clear and convincing evidence that termination is proper under any ground
within Iowa Code section 232.116(1) and that termination best serves the child.
Id. Once the State meets its burden, parental rights will be terminated unless the
parent establishes a statutory impediment to termination under section 232.116(3).
See id. Throughout our analysis, the child’s best interest remains the polestar. In
re J.S., 846 N.W.2d 36, 40 (Iowa 2014). 6
The district court terminated the father’s parental rights under Iowa Code
section 232.116(1)(h). To terminate under this ground, the State must prove
(1) the child is three years old or younger at the time of hearing; (2) the child had
been previously adjudicated in need of assistance; (3) the child was “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”; and (4) “the child cannot be returned to the custody of
the child’s parents . . . at the present time.” Iowa Code § 232.116(1)(h).
The father does not contest the first three elements. We therefore focus
our inquiry on whether the child could have been returned to the father’s custody
at the time of the termination hearing. On our review, we agree with the juvenile
court’s thorough and thoughtful analysis of the father’s circumstances.
As the court found, the father “deserves real credit” for his work upon
release—participating in supervised living, maintaining sobriety, attending therapy,
and garnering support from friends and family. Yet “even when one factors in
those positive considerations,” the State showed “clear and convincing evidence
[the child] cannot be returned to his care.”
The father has a long road to lasting sobriety. The father has never
maintained consistent sobriety after leaving structured, supervised treatment
settings. At the time of the termination hearing, he had only been living
independently for a few weeks. Thus, he had not yet established the length of
sobriety necessary to show the child could be safely returned to his custody.
What’s more, the district court recognized the father’s path to sobriety is
complicated by his recent engagement to “a woman who has her own substance 7
abuse history—as well as her own history of child welfare system involvement.”
The child’s safety in the home would not just turn on the father’s sobriety, but his
new fiancée’s sobriety as well. Importantly, the question is not whether the child
could someday be returned to the father’s custody, but whether she can be
returned to her father’s custody “at the time of the termination hearing.” In re A.M.,
843 N.W.2d 100, 111 (Iowa 2014) (emphasis added). At the time of the termination
hearing, the father had not yet demonstrated consistent, independent sobriety.
The father downplays these sobriety concerns on appeal—indeed he does
not mention them at all. Rather, the main thrust of the father’s appeal is that he
was sidelined as a parent while HHS focused on reunifying the mother and child.
He argues that he consistently requested and attended visitation and any lack of
contact between the child and himself and his family was caused by HHS and the
mother, not his circumstances.3 We disagree.
When the father was initially on parole and learned of his child, he had an
opportunity to be a parent. Instead, he threatened to kill another person and was
sent back to prison. When the mother could not care for the child, it was the
father’s choices that excluded him as the child’s next caregiver—his criminal
involvement, his parole revocation, his supervised-living arrangement stemming
from his history of substance use.
3 The father also summarily invokes due-process and equal-protection rights under
the United States and Iowa Constitutions. However, neither constitutional issue was ruled on below, nor does the father articulate which procedure he was unconstitutionally deprived of or how his equal-protection rights were violated. These issues are therefore both unpreserved and waived. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002); State v. Louwrens, 792 N.W.2d 649, 650 n.1 (Iowa 2010) (noting “passing reference to an issue, unsupported by authority or argument, is insufficient to raise the issue on appeal”). 8
Moreover, the underlying child-in-need-of-assistance case with the mother
and child was not rushed and did not preclude opportunities for the father to parent
his child. In fact, the mother had progressed enough by the fall of 2022 that she
was given an extension of time to work toward reunification. See Iowa Code
§ 232.104(2)(b). The father also benefited from this additional time to complete
his prison sentence and work toward providing a safe environment for the child.
Yet by the termination hearing in April 2024, the father was still not able to safely
care for his child. Thus it was his own circumstances, not HHS’s actions, that
caused the child to spend twenty-three of the thirty months leading to the
termination hearing in foster care.
As the district court noted, the father’s progress is encouraging. However,
he could not safely take custody of his child at the time of the termination hearing.
We therefore agree the State proved the statutory ground for termination under
section 232.116(1)(h).
B. The Child’s Best Interest under Section 232.116(2).
The next step is determining whether termination is in the child’s best
interest. W.T., 967 N.W.2d at 332. On appeal, the father conflates this inquiry
with the third step, asserting termination does not serve the child’s best interests
because “there was a strong bond between the child and their father” and “it would
be detrimental to the child to terminate that parent-child relationship.” See Iowa
Code § 232.116(3) (allowing an exception for termination when “[t]here is clear
and convincing evidence that the termination would be detrimental to the child at
the time due to the closeness of the parent-child relationship”). The best-interest
and statutory-impediment inquiries are not interchangeable—the State carries the 9
burden to show best interests, while the parent carries the burden to prove an
impediment. W.T., 967 N.W.2d at 322.
Even so, termination best serves the child. For this step, we primarily
consider “the child’s safety,” “the best placement for furthering the long-term
nurturing and growth of the child,” and the child’s “physical, mental, and emotional
condition and needs” at the time of the hearing. Iowa Code § 232.116(2); In re
D.M.J., 780 N.W.2d 243, 245 (Iowa Ct. App. 2010). If a child has been with a foster
family, we also consider whether the child “has become integrated into the foster
family,” and “[t]he length of time the child has lived in a stable, satisfactory
environment and the desirability of maintaining that environment and continuity for
the child.” Iowa Code § 232.116(2)(b)(1). At bottom, “juvenile law is not a fault-
based edifice like tort law,” and we strive “to keep children from languishing in
foster care.” In re Z.P., 948 N.W.2d 518, 523 (Iowa 2020) (second quoting In re
J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially)).
The termination hearing evidence shows the child is fully integrated into her
foster family, who wish to adopt her. She first entered their care when she was six
weeks old and has spent roughly two years in their care. It has been the only
stability given to her in the bumpy road of back-and-forth placement with the
mother. She has never been with the father outside of supervised visitations.
Accordingly, “[t]his is exactly the sort of case where we must not deprive a child of
permanency in the hope [the father] will get better.” In re W.M., 957 N.W.2d 305,
314 (Iowa 2021). We thus agree that termination is in the child’s best interest. 10
C. Statutory Impediments under Section 232.116(3).
As for the father’s raised statutory impediment to termination, he has not
proved by clear and convincing evidence that we should forgo termination and
permanency for the child because of a close bond. While he indeed argues that
he loves his child and they share a bond, “the existence of a bond is not enough.”
In re A.B., 956 N.W.2d 162, 169 (Iowa 2021). Rather, the connection must be so
strong that termination would harm the child. Id. Here, the child has never been
in the father’s care for more than fully supervised visits. Because the father has
never progressed enough to have the child in his custody, the father has not shown
a degree of connection that outweighs the child’s need for permanency. See W.M.,
957 N.W.2d at 315. Thus, we affirm the termination of the father’s parental rights
over the child.