IN THE COURT OF APPEALS OF IOWA
No. 22-0857 Filed August 31, 2022
IN THE INTEREST OF Z.B., Minor Child
U.B., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,
District Associate Judge.
A father appeals the termination of his parental rights. AFFIRMED.
Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, for appellant
father.
Thomas J. Miller, Attorney General, and Chandlor Collins, Assistant
Attorney General, for appellee State.
Judy D. Johnson of JDJ Law Firm, Des Moines, attorney and guardian ad
litem for minor child.
Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ. 2
GREER, Judge.
The father appeals the termination of his parental rights to the child, Z.B.
He argues the State failed to prove the statutory grounds for termination,
termination is not in the child’s best interests, and the juvenile court should have
used a permissive exception to avoid termination. Because grounds for
termination exist, termination is in the child’s best interests, and the permissive
exception is not appropriate, we affirm.
Background Facts and Proceedings.
In June of 2021, the child—then two months old—arrived at an emergency
room after his father and mother, D.B., noticed a bump on his chest. Doctors found
six recent rib fractures, a few more-healed rib fractures, fractures of varying ages
in his extremities, a subdural hematoma, a bruise on his liver, and fluid buildup in
his chest. The injuries were indicative of trauma, and doctors opined they were
not accidental and had occurred over time—probably the child’s whole life. The
child was in respiratory distress and had dropped from the 93% of weight for
children his age to the 12%, which qualified as moderate malnutrition. The Iowa
Department of Human Services (DHS) was called and a child protection worker
(CPW) completed a child abuse assessment, but neither parent could provide an
explanation for the injuries.1 DHS noted the father gave multiple inconsistent
versions of his whereabouts around the time of the most recent injury to the child.
DHS found physical abuse had occurred by an unknown person.
1 There were two roommates also living in the home at the time the nonaccidental injuries were discovered, and the maternal grandmother also occasionally provided care for the child. 3
As the hospital was preparing to discharge the child, the CPW noticed new
bruises on the mother’s arm; the mother denied any history of arguments
becoming physical with the father. That same day, the father broke off the
relationship with the mother over text message. As the CPW spoke to friends and
family members of the parents, there were reports of the father becoming violent
with the mother; there were also concerns the father was using marijuana while
parenting the child. The mother of his older child also reported the father had been
violent with her during their relationship. Now with DHS involved, the mother
shared the father would shut and lock the door when bathing the child, who would
throw up water and cry afterwards. The mother began seeing a domestic violence
advocate, but she avoided sharing details openly during sessions. She did
describe their relationship as “toxic,” especially after she became pregnant.
The child was adjudicated a child in need of assistance (CINA) in October.
Both parents and the State agreed the child should remain in the mother’s custody
and outside of the father’s custody.
The same month, the father was placed in jail after violating his probation
for possession of marijuana with intent to deliver, possession of marijuana, and
operating while intoxicated. The father was ordered to go to Bridges of Iowa, a
residential substance-abuse program, and was admitted in March of 2022—he left
after a matter of hours. A week later, he was arrested on new charges. When the
juvenile court conducted a termination hearing in April 2022, the father was in jail
awaiting a probation revocation hearing and his probation officer recommended
his probation be revoked. 4
Even when the father was not incarcerated, he failed to engage with
services. DHS recommended the father engage in therapy to address his anger,
coping skills, and history of perpetrating domestic violence against partners, but
he never seriously sought treatment. As an example, he was discharged from a
program, Caring Dads, after failing to attend consistently (in part because of his
arrest). By the time of the termination hearing, he had not completed substance-
abuse treatment and testified he did not believe he had a problem. As a further
impediment to reunification, the father’s probation officer reported to DHS the
father evaded drug testing on several occasions. The father did not keep in touch
with DHS and did not participate in regular visitation—at the time of the termination
hearing, the father had not attended even a virtual visit with the child since January
2022. Since the child was removed from the father’s custody, DHS has reported
the mother is meeting the child’s needs and the child is thriving.
The juvenile court terminated the father’s parental rights under Iowa Code
section 232.116(1)(b), (d), (h), and (i) (2022). The father requested a delayed
appeal, which our supreme court granted.
Analysis.
The father argues the State failed to prove any of the statutory grounds for
termination, termination is not in the child’s best interests, and the permissive
exceptions in section 232.116(3) should have been applied to avoid termination.
We review a termination of parental rights de novo. In re P.L., 778 N.W.2d 33, 40.
Grounds for Termination.
Though the juvenile court terminated under several grounds, “we may affirm
the juvenile court’s termination order on any ground that we find supported by clear 5
and convincing evidence.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). Here,
we focus on section 232.116(1)(h), which requires a court to find:
(1) The child is three years of age or younger. (2) The child has been adjudicated [CINA] pursuant to section 232.96. (3) The child has been 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. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time.
The father does not dispute the first three elements; he argues that testimony at
trial established he would not be incarcerated much longer and would be able to
parent upon his release, meaning the fourth element was not met. But, section
232.116(1)(h) concerns a parent’s ability to take on the child’s custody at the time
of the termination hearing, not the future; the father was undeniably incarcerated
and admitted in his own testimony that he was unsure when he would be released.
See In re A.S., 906 N.W.2d 467, 473 (Iowa 2018) (emphasizing the time of the
termination hearing as dispositive for section 232.116(1)(h)). Further, because of
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IN THE COURT OF APPEALS OF IOWA
No. 22-0857 Filed August 31, 2022
IN THE INTEREST OF Z.B., Minor Child
U.B., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,
District Associate Judge.
A father appeals the termination of his parental rights. AFFIRMED.
Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, for appellant
father.
Thomas J. Miller, Attorney General, and Chandlor Collins, Assistant
Attorney General, for appellee State.
Judy D. Johnson of JDJ Law Firm, Des Moines, attorney and guardian ad
litem for minor child.
Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ. 2
GREER, Judge.
The father appeals the termination of his parental rights to the child, Z.B.
He argues the State failed to prove the statutory grounds for termination,
termination is not in the child’s best interests, and the juvenile court should have
used a permissive exception to avoid termination. Because grounds for
termination exist, termination is in the child’s best interests, and the permissive
exception is not appropriate, we affirm.
Background Facts and Proceedings.
In June of 2021, the child—then two months old—arrived at an emergency
room after his father and mother, D.B., noticed a bump on his chest. Doctors found
six recent rib fractures, a few more-healed rib fractures, fractures of varying ages
in his extremities, a subdural hematoma, a bruise on his liver, and fluid buildup in
his chest. The injuries were indicative of trauma, and doctors opined they were
not accidental and had occurred over time—probably the child’s whole life. The
child was in respiratory distress and had dropped from the 93% of weight for
children his age to the 12%, which qualified as moderate malnutrition. The Iowa
Department of Human Services (DHS) was called and a child protection worker
(CPW) completed a child abuse assessment, but neither parent could provide an
explanation for the injuries.1 DHS noted the father gave multiple inconsistent
versions of his whereabouts around the time of the most recent injury to the child.
DHS found physical abuse had occurred by an unknown person.
1 There were two roommates also living in the home at the time the nonaccidental injuries were discovered, and the maternal grandmother also occasionally provided care for the child. 3
As the hospital was preparing to discharge the child, the CPW noticed new
bruises on the mother’s arm; the mother denied any history of arguments
becoming physical with the father. That same day, the father broke off the
relationship with the mother over text message. As the CPW spoke to friends and
family members of the parents, there were reports of the father becoming violent
with the mother; there were also concerns the father was using marijuana while
parenting the child. The mother of his older child also reported the father had been
violent with her during their relationship. Now with DHS involved, the mother
shared the father would shut and lock the door when bathing the child, who would
throw up water and cry afterwards. The mother began seeing a domestic violence
advocate, but she avoided sharing details openly during sessions. She did
describe their relationship as “toxic,” especially after she became pregnant.
The child was adjudicated a child in need of assistance (CINA) in October.
Both parents and the State agreed the child should remain in the mother’s custody
and outside of the father’s custody.
The same month, the father was placed in jail after violating his probation
for possession of marijuana with intent to deliver, possession of marijuana, and
operating while intoxicated. The father was ordered to go to Bridges of Iowa, a
residential substance-abuse program, and was admitted in March of 2022—he left
after a matter of hours. A week later, he was arrested on new charges. When the
juvenile court conducted a termination hearing in April 2022, the father was in jail
awaiting a probation revocation hearing and his probation officer recommended
his probation be revoked. 4
Even when the father was not incarcerated, he failed to engage with
services. DHS recommended the father engage in therapy to address his anger,
coping skills, and history of perpetrating domestic violence against partners, but
he never seriously sought treatment. As an example, he was discharged from a
program, Caring Dads, after failing to attend consistently (in part because of his
arrest). By the time of the termination hearing, he had not completed substance-
abuse treatment and testified he did not believe he had a problem. As a further
impediment to reunification, the father’s probation officer reported to DHS the
father evaded drug testing on several occasions. The father did not keep in touch
with DHS and did not participate in regular visitation—at the time of the termination
hearing, the father had not attended even a virtual visit with the child since January
2022. Since the child was removed from the father’s custody, DHS has reported
the mother is meeting the child’s needs and the child is thriving.
The juvenile court terminated the father’s parental rights under Iowa Code
section 232.116(1)(b), (d), (h), and (i) (2022). The father requested a delayed
appeal, which our supreme court granted.
Analysis.
The father argues the State failed to prove any of the statutory grounds for
termination, termination is not in the child’s best interests, and the permissive
exceptions in section 232.116(3) should have been applied to avoid termination.
We review a termination of parental rights de novo. In re P.L., 778 N.W.2d 33, 40.
Grounds for Termination.
Though the juvenile court terminated under several grounds, “we may affirm
the juvenile court’s termination order on any ground that we find supported by clear 5
and convincing evidence.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). Here,
we focus on section 232.116(1)(h), which requires a court to find:
(1) The child is three years of age or younger. (2) The child has been adjudicated [CINA] pursuant to section 232.96. (3) The child has been 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. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time.
The father does not dispute the first three elements; he argues that testimony at
trial established he would not be incarcerated much longer and would be able to
parent upon his release, meaning the fourth element was not met. But, section
232.116(1)(h) concerns a parent’s ability to take on the child’s custody at the time
of the termination hearing, not the future; the father was undeniably incarcerated
and admitted in his own testimony that he was unsure when he would be released.
See In re A.S., 906 N.W.2d 467, 473 (Iowa 2018) (emphasizing the time of the
termination hearing as dispositive for section 232.116(1)(h)). Further, because of
the father’s untreated substance abuse and the unresolved domestic-violence
concerns that were discovered during these proceedings, the child could not safely
be returned to his care before additional time, services, and effort on the father’s
part. See In re L.M., 904 N.W.2d 835, 839 (Iowa 2017) (“Given her history of drug
addiction and parenting dysfunction, we conclude [the mother] would have much
to prove after the discharge of her sentence before resuming custody of [the
child].”); In re T.W., No. 20-0145, 2020 WL 1881115, at *3 (Iowa Ct. App. Apr. 15, 6
2020). We find clear and convincing evidence for termination under section
232.116(1)(h).
Best Interests.
As to the child’s best interests, our analysis gives 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.” Iowa Code § 232.116(2). Maintaining the father’s parental rights runs
afoul of these goals. While in the father’s custody, the child had suffered
continuous physical abuse and malnourishment. While the mother tackled these
issues with help from DHS, the father has not meaningfully addressed his
substance abuse and has continued to violate the terms of his probation and
accrue new criminal charges. He has not completed any programing provided by
DHS. And while the father believes he could be a better parent after he is released
from jail, “[c]hildren simply cannot wait for responsible parenting.” In re L.L., 459
N.W.2d 489, 495 (Iowa 1990). It is in the child’s best interests to terminate the
father’s parental rights.
Permissive Exceptions.
Finally, the father asserts that because a relative, in this case the child’s
mother, has legal custody of the child, the statutory exception to termination in
section 232.116(3)(a) should have been applied to avoid termination. Once the
State establishes a ground for termination, “the parent resisting termination bears
the burden to establish an exception to termination.” A.S., 906 N.W.2d at 476.
These exceptions are not mandatory, but permissive. Id. at 475. In the termination
order, the district court addressed its decision not to employ the exception, stating 7
“the serious injuries that [the child] received, the history of domestic violence
perpetrated by [the father], the risk of further harm to [the child] of both physical
abuse and exposure to domestic violence, and the diminished attachment given
the father’s lack of consistent contact” weighed against doing so.
In the end, the father has not convinced us that the benefits of maintaining
the parent-child relationship outweigh the need for termination. See In re M.A.,
No. 22-0107, 2022 WL 1487125, at *5 (Iowa Ct. App. May 11, 2022) (“Simply
because [the child] is in his father’s custody does not countermand our conclusion
that termination of the mother’s rights is in the child’s best interests. The mother
provides no compelling reason why we should elect to apply section 232.116(3)(a)
to preclude termination.”). We affirm the juvenile court’s decision not to use the
permissive exceptions to avoid termination.
Conclusion.
For the foregoing reasons we affirm the juvenile court’s order terminating
the father’s parental rights.
AFFIRMED.