In the Interest of X.W., Minor Child, G.W., Father

• Court: Court of Appeals of Iowa
• Decided: September 14, 2016
• Docket: 16-1128
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-1128 Filed September 14, 2016

IN THE INTEREST OF X.W., Minor child,

G.W., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,

District Associate Judge.

A father appeals the termination of his parental rights. AFFIRMED.

Bryan P. Webber of Carr & Wright, P.L.C. Des Moines, for appellant

father.

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

Attorney General, for appellee State.

Erin E. Mayfield of Youth Law Center, Des Moines, guardian ad litem for

minor child.

Considered by Potterfield, P.J., and Doyle and Tabor, JJ. 2

DOYLE, Judge.

In June 2016, the juvenile court terminated the father’s parental rights to

his child, X.W., born in January 2015.1 The court found the State proved the

grounds for termination of his parental rights under Iowa Code section

232.116(1) (b), (e), and (h) (2015). The court concluded a grant of additional

time for the father to work toward reunification was not warranted. The court also

concluded termination of his parental rights was in the child’s best interests and

no exception to termination applied. The father appeals, challenging these

determinations. Our review is de novo. See In re A.M., 843 N.W.2d 100, 110

(Iowa 2014).

Although the juvenile court found clear and convincing evidence to

terminate the father’s parental rights under three paragraphs of section

232.116(1), we need only find the evidence supports termination on one of these

grounds to affirm. See In re T.S., 868 N.W.2d 425, 435 (Iowa Ct. App. 2015).

We will uphold an order terminating parental rights if the statutory grounds for

termination are shown by clear and convincing evidence. See id. at 434. This

burden of proof is met if there are no serious or substantial doubts as to the

correctness of the conclusions of law drawn from the evidence. See id. at 435.

Parental rights may be terminated under section 232.116(1)(h) if the State

proves by clear and convincing evidence that (1) the child is three years of age or

younger; (2) the child has been adjudicated a child in need of assistance (CINA);

(3) the child has been removed from the physical custody of the child’s parents

for at least six of the last twelve months, or for the last six consecutive months;

1 The mother’s parental rights were not terminated and are not at issue here. 3

and (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. The father does not dispute that the first three elements required for

termination under paragraph (h) have been proved by clear and convincing

evidence. As to the fourth element, the father argues he should have been

granted an additional six months for reunification because, at the end of those six

months, “he may have been in a position to resume care at that point in time.”

That is not what the State must prove to show the ground for termination set forth

in paragraph (h); rather, the critical time for the child’s return to the parent’s care

is at the time of the termination-of-parental-rights hearing. See Iowa Code

§ 232.116(1)(h)(4); see also, e.g., In re M.W., 876 N.W.2d 212, 224 (Iowa 2016)

(“[T]here is clear and convincing evidence in the record that the children could

not safely be returned to the custody of [the parent] . . . at the time of the

termination hearing.”); A.M., 843 N.W.2d at 112 (“The record . . . shows [the

child] could not be returned to the care of her parents at the time of the

hearing.”). “If a child cannot be returned to the parents at that point, termination

should occur so long as it is in the best interests of the child and the juvenile

court does not find an exception to termination that warrants a different result.”

A.M., 843 N.W.2d at 111.

The father testified he was in a correctional facility at the time of the May

2016 termination-of-parental-rights hearing. The child could not be returned to

the father’s care at the time of the hearing. There is no question the State

established by clear and convincing evidence the child could not be returned to

the father at the time of the termination-of-parental-rights hearing and therefore 4

proved the ground under section 232.116(1)(h). Furthermore, we agree with the

juvenile court that the father had failed to address the issues which first brought

the child to the attention of the Iowa Department of Human Services (DHS).

The father testified he would be eligible for parole in August 2016 and had

a tentative discharge date of January 2017. The juvenile court concluded

The child is unlikely be able to be returned to [the father]’s care within the next six months. If he were to be released by being paroled in August, [the father] would be unable to provide for [the child] anytime soon. In addition, he would be a stranger to [the child] upon his release and additional time would be needed to build a relationship with [the child]. He would also have to work extensively with DHS and this child would be unable to have permanency established until long after [the] father’s release.

We agree. Any additional time in limbo would not be in the child’s best interests.

The father also argues termination of his parental rights is not in the child’s

best interests. Upon our de novo review of the record, we disagree.

At the termination-of-parental-rights hearing, the father admitted he had

not seen the child since March of 2015, when the child was removed from his

custody. The father had been using opiates at that time and spent nine months

in jail. After his release, he violated the no-contact order between him and the

mother, which was in place because of domestic violence by the father, and he

was incarcerated again. The Iowa Department of Human Services case worker

believed termination of the father’s rights was in the child’s best interests,

testifying she had concerns about the domestic violence and did not think the

father could co-parent the child with the mother. The case worker explained she

had

spent a lot of time with [the mother] over the last year or so, and [the mother] has reason to be frightened of [the father] and some of 5

the actions that he may take upon his release. I feel that in terms of [the child], for his permanency, it would be in his best interest to have those rights severed completely so that there is no question in the future for him.

The case worker did not believe, given the father’s history, that the father would

follow the court’s orders after his release. She was also concerned about the

father’s unaddressed substance-abuse and mental-health issues.

Giving “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,” see Iowa Code

§ 232.116(2), we conclude termination of the father’s parental rights is in the

child’s best interests. As the juvenile court aptly summarized: “[The father] has

been unable to meet his own needs and stay out of prison, and clearly is unable

to meet [the child]’s needs . . . .” Nothing in the evidence indicates that this is

likely to change in the foreseeable future.

Lastly, the father maintains that a permissive factor weighs against

termination—namely that the child’s mother has custody of the child. See Iowa

Code § 232.116(3)(a). After reviewing the record in its entirety, we agree with

the juvenile court that the permissive factor should not be applied in this case.

Accordingly, we affirm the juvenile court’s order terminating the father’s

parental rights.

AFFIRMED.