In the Interest of Z.A. and Z.A., Minor Children

• Court: Court of Appeals of Iowa
• Decided: February 3, 2021
• Docket: 20-1376
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-1376 Filed February 3, 2021

IN THE INTEREST OF Z.A. and Z.A., Minor Children,

C.A., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Page County, Jennifer Bahr, District

Associate Judge.

A father appeals the termination of his parental rights concerning two

children. AFFIRMED.

Justin R. Wyatt, Glenwood, for appellant father.

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

Attorney General, for appellee State.

Vicki Danley, Sidney, attorney and guardian ad litem for minor children.

Considered by May, P.J., and Greer and Schumacher, JJ. 2

SCHUMACHER, Judge.

A father appeals the termination of his parental rights concerning his two

sons. He challenges the statutory grounds relied on by the district court for

termination, alleges termination of his parental rights is contrary to the best

interests of his children, and argues the district court should have granted an

extension of time for reunification efforts. Upon our de novo review, we affirm the

termination of the father’s parental rights.

I. BACKGROUND FACTS AND PROCEEDINGS

Two young boys are at the heart of this appeal. Z.A. was born in 2011 and

Za.A. was born in 2012. At the time of the termination hearing, Z.A. was nine years

old and Za.A. was seven years old. The children have been adjudicated to be

children in need of assistance (CINA) on two separate occasions. They were

removed from parental custody from January 31, 2017 through June 17, 2017, due

to concerns of domestic violence and methamphetamine use. Both children were

adjudicated on March 16, 2017, pursuant to Iowa Code section 232.2(6)(c)(2) and

(n) (2017). This case closed with a dismissal order on February 15, 2018.

Less than a year later, the same issues within the family structure brought

Z.A. and Za.A. to the attention of the Iowa Department of Human Services (DHS).

In December 2018, one of the children called 911 to report an assault on his mother

by his father. Both children witnessed the violence. At the time of the assault,

both parents were alleged to be under the influence of methamphetamine.

Pursuant to a safety plan, the children were placed with their maternal great-

grandmother, where they have remained for nineteen months. A founded child

protective services child abuse assessment was completed on March 16, 2019, 3

listing the father as a parent responsible for the abuse. This March 2019 report

represents the fifth founded abuse report against the father since 2012. The father

refused to comply with a request for a drug screen during the most recent abuse

assessment.

Both boys were adjudicated CINA for a second time on March 7, 2019,

pursuant to Iowa Code section 232.2(6)(c)(2) and (n) (2019). They were formally

removed from parental custody the same day. At the dispositional hearing, when

asked to submit to a drug screen, the father admitted using methamphetamine a

few days before the hearing and did not submit to the requested drug screen.

The father was incarcerated for the majority of the most recent underlying

CINA case. He was in custody from December 2018 to March 2019 on domestic

abuse assault charges. He pled guilty to violating a no-contact order with the

mother and was released from jail on March 21, 2019. However, due to a

harassment charge related to the mother, he was again arrested in the beginning

of April. He was released on bail. He was again taken into custody on April 23 for

delivery of methamphetamine.

Following resolution of the charges, the father was placed at the Council

Bluffs residential correctional facility (RCF) in July but, due to his inability to follow

the rules of the program, he was returned to the county jail. His probation was

revoked in October, and by the time of the permanency hearing held on

January 16, 2020, the father had been incarcerated at the Mount Pleasant

Correctional Facility on an indeterminate ten-year period of incarceration following

his plea to a class “C” felony, possession of methamphetamine with intent to

deliver. He remained incarcerated at the time of the termination hearing held on 4

August 6, 2020, although he testified that he had been “run up on parole” the prior

week and anticipated a response from the parole board the following month.

Following the termination hearing, the court found clear and convincing

evidence to terminate the parental rights of the father pursuant to Iowa Code

section 232.116(1)(e) and (f) (2020). In support of the decision to terminate, the

court noted both boys had been formally removed from parental custody for the

last seventeen consecutive months and the father remained incarcerated. The

court noted the father had taken some classes while incarcerated but he conceded

the boys could not be returned to his custody at the time of the termination hearing.

The father now appeals from the termination order.1

II. STANDARD OF REVIEW

Our review of termination proceedings is de novo. In re P.L., 778 N.W.2d

33, 40 (Iowa 2010). We give weight to the juvenile court’s findings, especially

assessing witness credibility, although we are not bound by them. In re D.W., 791

N.W.2d 703, 706 (Iowa 2010). An order terminating parental rights will be upheld

if there is clear and convincing evidence of grounds for termination under section

232.116. Id. Evidence is “clear and convincing” when there are no serious or

substantial doubts as to the correctness of the conclusions of law drawn from the

evidence. Id.

III. DISCUSSION

Iowa Code chapter 232 termination of parental rights follows a three-step

analysis. P.L., 778 N.W.2d at 39. The court must first determine whether a ground

1 The mother’s parental rights were also terminated. She does not challenge the district court’s termination order. 5

for termination under section 232.116(1) has been established. Id. If a ground for

termination has been established, the court must apply the best interest framework

set out in section 232.116(2) to decide if the grounds for termination should result

in termination of parental rights. Id. Finally, if the statutory best-interest framework

supports termination of parental rights, the court must consider if any of the

statutory exceptions set out in section 232.116(3) weigh against the termination of

parental rights. Id.

A. Grounds for Termination

When the juvenile court terminates parental rights on more than one

statutory ground, we may affirm the order on any ground we find supported by the

record. D.W., 791 N.W.2d at 707. We focus on section 232.116(1)(f) for the

purpose of this appeal. Iowa Code section 232.116(1)(f) provides termination may

be ordered when there is clear and convincing evidence the child is four years of

age or older, has been adjudicated a CINA, has been removed from the physical

custody of the parent for at least twelve of the last eighteen months, and cannot

be returned to the parent’s custody at the time of the termination hearing.

Here, the father does not contest the first three elements of section

232.116(1)(f) but challenges whether the fourth has been met. At the time of the

termination proceeding, the father was in prison and neither child could be returned

to him. See id. (interpreting the term “at the present time” to mean “at the time of

the termination hearing”); In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App. 2016)

(noting a child cannot be returned to the custody of the parent if doing so would

expose the child to any harm amounting to a new CINA adjudication). Due to his

incarcerated status, we find the State’s evidence satisfied the fourth element of 6

this statutory ground. While not necessary to our determination, we additionally

note that while the father anticipated transfer to the RCF, perhaps in the next month

or two, neither child could be placed in such facility, with an anticipated stay at the

RCF of several months. Further, as noted by the district court, the father would

not be in a position to have the children immediately returned to his care upon

release from the RCF. We agree the statutory ground for termination of the father’s

parental rights pursuant to Iowa Code section 232.116(1)(f) was met.

B. Best Interests of the Children

Even if a statutory ground for termination is met, a decision to terminate

must still be in the best interests of a child after a review of section 232.116(2).

P.L., 778 N.W.2d at 37. In determining the best interests of children, we give

primary consideration to “the child[ren]’s safety, to the best placement for furthering

the long-term nurturing and growth of the child[ren], and to the physical, mental,

and emotional conditions and needs of the child[ren].” See Iowa Code

§ 232.116(2).

We find it is in the best interests of Z.A. and Za.A. to terminate the father’s

parental rights. This is not a close call. The father has been provided a myriad of

services since 2017. The lives of these boys have been subject to continued chaos

due to substance abuse and domestic violence. Since the most recent removal,

the boys have been living with their maternal great-grandmother for a period of

nineteen months, where they are thriving, yet still dealing with the effects of abuse.

This placement has expressed an intention to adopt in the event of a termination.

With our primary consideration being Z.A. and Za.A.’s safety, the best placement 7

for furthering their long-term nurturing and growth, and to their physical, mental,

and emotional conditions and needs, we find termination to be in their best interest.

C. Extension of Time for Reunification

Although not set out as a separate issue in his appeal, we interpret a portion

of the father’s argument as a request for an extension of time pursuant to Iowa

Code sections 232.117(5) and 232.104(2)(b). Iowa Code sections 232.117(5) and

232.104(2)(b) allow the court to grant an extension of time if parental rights are not

terminated following the termination hearing. But to continue placement for six

more months, the juvenile court must determine that “the need for removal will no

longer exist at the end of the extension.” In re A.A.G., 708 N.W.2d 85, 92 (Iowa

Ct. App. 2005). “The judge considering [the extension] should however constantly

bear in mind that, if the plan fails, all extended time must be subtracted from an

already shortened life for the children in a better home.” Id. at 92 (citation omitted).

Here, the district court declined to grant the father an extension of time,

citing an inability to determine the need for removal would no longer exist at the

end of the requested extension. The district court specifically found, “There is

nothing in the extended history of this case that allows the Court to conclude that

there is a reasonable likelihood that real change will occur that will eliminate the

need for removal over the next six months.” The court highlighted the father’s lack

of progress throughout the case, his current imprisonment, and inability to achieve

sobriety or address his anger management outside of a prison setting. We agree

with this determination.

While we commend the father for the work he has completed while

incarcerated, we do not find such alone warrants an extension on the facts of this 8

case. By the time of the termination hearing, the children had been out of parental

care for nineteen months, formally removed for seventeen months. Notably, this

is not the children’s first contact with the court system. Further, while the father

indicates he will likely be released to the RCF in the near future, as noted above,

such will also not be the father’s first admission to such facility. When previously

placed at the RCF, he violated the placement’s rules and was returned to jail. He

also had difficulty following the structure of the prison and received disciplinary

consequences as a result. We agree the district court properly denied the request

to grant the father an extension of time to reunify with his children. We, like the

district court, are unable to determine the need for removal of Z.A. and Za.A. from

their home would no longer exist at the end of an extension of time.

As the father makes no claim that a statutory exception under Iowa Code

section 232.116(3) should be applied, we do not address the same.

IV. CONCLUSION

There is clear and convincing evidence that grounds for termination exist

under section 232.116(1)(f). Termination of the father’s parental rights is in the

children’s best interests pursuant to section 232.116(2). An extension of time for

reunification efforts is not warranted. Accordingly, we affirm the termination of the

father’s parental rights.

AFFIRMED.