In the Interest of T.A., Minor Child, D.K., Father

IN THE COURT OF APPEALS OF IOWA

No. 15-1269
Filed October 28, 2015

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

D.K., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Deborah Farmer

Minot, District Associate Judge.

A father appeals from a juvenile court’s order terminating his parental

rights. AFFIRMED.

Kristin L. Denniger, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, Kathryn S. Miller-Todd, Assistant

Attorney General, Janet M. Lyness, County Attorney, and Patricia Weir, Assistant

County Attorney, for appellee.

Anthony Haughton, Linn County Advocate, Cedar Rapids, attorney and

guardian ad litem for minor child.

Considered by Doyle, P.J., and Mullins and Bower, JJ.
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MULLINS, Judge.

A father appeals from a juvenile court’s order terminating his parental

rights to his child, T.A., under Iowa Code section 232.116(1)(e) and (h) (2015).1

The father argues the State failed to prove the grounds for termination by clear

and convincing evidence and the juvenile court erred in denying his request for

an additional six months to work toward reunification with his child. He also

contends termination is not in the child’s best interests.

I. Background Facts and Proceedings

The father has one child, T.A., born in May 2014. At the time of T.A.’s

birth, his mother was already involved in the juvenile court system with her older

son, D.A. Based upon concerns in D.A.’s case, the State filed a child-in-need-of-

assistance (CINA) petition on behalf of T.A. in June 2014, when T.A. was only

two weeks old. The juvenile court noted that the father was a primary reason for

the initial removal of D.A. due to his drug activity and domestic violence toward

the mother. Both before and after T.A. was born, the father was unavailable to

participate in services due to active arrest warrants for new charges or probation

violations, periods of time that he was in custody, and long periods of time when

his whereabouts were unknown. The father failed to attend the combined

adjudication/dispositional hearing in July 2014 and his rights were adjudicated by

default. At that time he was subject to outstanding arrest warrants, and the

juvenile court entered a protective order against the father in regards to T.A.,

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The juvenile court found the mother in default because she failed to appear to contest
the termination proceedings. The juvenile court terminated the mother’s parental rights
under Iowa Code section 232.116(1)(h). She does not appeal.
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prohibiting him from having any contact with his son, “except for supervised

visitation if authorized by the juvenile court and approved by the [Iowa]

Department of Human Services [(DHS)].”

T.A. was not removed from the mother’s care and custody following the

CINA adjudication because the court found she was making good progress in the

older child’s case. In September 2014, the older child was returned to the

mother’s care. But in November 2014, both children were removed and placed

with their maternal grandmother. During that time, the father never contacted

DHS, and he had missed hearings in August and November. In early December

2014, the court granted his attorney’s request to withdraw from the case based

upon the attorney’s inability to communicate or contact the father, as his

whereabouts were unknown.

In February 2015, the father was again arrested. Following that arrest, the

father requested new counsel and paternity testing that established he is T.A.’s

biological father. In March 2015, the father was placed in a local community

corrections facility. In April 2015, he absconded, was arrested, and returned to

jail. That same month, the State filed a petition to terminate the father’s parental

rights following a permanency hearing in the case at which he did not appear. In

June 2015, the juvenile court held a termination of parental rights hearing.

Earlier that month, the father had been sentenced to sixty days in jail for

contempt of court and ordered to return to the community corrections facility after

completing his sentence.
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At the termination hearing, the guardian ad litem (GAL) supported the

State’s petition and stated that termination was in the child’s best interests so

that he could achieve stability and permanency. The father was incarcerated at

the time of the termination hearing but submitted a written statement the

following day requesting that the court grant him additional time to work toward

reunification.

In July 2015, the juvenile court entered an order terminating the father’s

parental rights under Iowa Code section 232.116(1)(e) and (h), based upon his

“history of failing to participate in services, unavailability, and incarceration.” The

court found reasonable efforts were made to reunify the father with his child, but

he failed or refused to participate in services. The court found that T.A. could not

be returned to the father’s care and custody at the time of the termination hearing

without continuing to be in need of assistance because he was unable to

demonstrate that he could obtain stable employment, “avoid additional criminal

behavior, stay sober, and get out of [the community corrections facility].” The

court further found “that return of the child[ ] to parental custody would be

detrimental to [his] physical, emotional and psychological health and well-being

because none of the parents have demonstrated the ability or desire to protect

the child and to meet his needs, and because the father[ ] [is a] stranger[ ] to [his]

son[] .” The juvenile court denied the father’s request for additional time to work

toward reunification because “it would not result in the return of the child to his

care within the next six months in light of his incarceration and his failure to

participate in services when he was not in custody.” This appeal followed.
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II. Standard of Review

We review termination-of-parental-rights proceedings de novo. In re A.M.,

843 N.W.2d 100, 110 (Iowa 2014). We give weight to the factual determinations

of the juvenile court, especially with regard to witness credibility, but are not

bound by them. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Our primary

consideration is the best interests of the child. Id. at 776.

III. Analysis

The juvenile court terminated the father’s parental rights to his son under

Iowa Code section 232.116(1)(e) and (h). When a juvenile court terminates

parental rights on more than one ground, we may affirm the order on any of the

statutory grounds supported by clear and convincing evidence. In re D.W., 791

N.W.2d 703, 707 (Iowa 2010). Evidence is clear and convincing when there is

no serious or substantial doubt as to the correctness of the conclusions of law

drawn from the evidence. Id. at 706.

Under section 232.116(1)(h), the court may terminate parental rights if the

court finds that the State has proved by clear and convincing evidence the child

(1) is three years old or younger; (2) has been adjudicated CINA; (3) has been

removed from the physical custody of the parents for at least six of the last

twelve months, or the last six consecutive months and any trial period at home

has been less than thirty days; and (4) cannot be returned to the custody of the

parents at the time of the termination hearing.

There is no dispute that T.A. is under the age of three. He was

adjudicated CINA in July 2014. He was removed from his parents’ physical
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custody in November 2014, and has not had any trial periods at home. At the

time of the termination hearing in June 2015, T.A. had been removed from the

physical custody of his parents for the last six consecutive months and could not

be returned to the custody of his father because he was incarcerated and

awaiting placement in a community corrections facility. Furthermore, the father is

not entitled to an additional six months because he has not proved that the need

for removal will no longer exist at the end of that six-month period. See Iowa

Code § 232.104(2)(b). The father was expected to spend up to one year in the

community corrections facility and any further significant violations could result in

prison sentences. A grant of additional time would only delay the permanency

and stability that T.A. needs. We cannot ask this child to continuously wait for his

father to become a stable parent. In re D.W., 791 N.W.2d at 707. “[A]t some

point, the rights and needs of the children rise above the rights and needs of the

parent.” In re C.S., 776 N.W.2d 297, 300 (Iowa Ct. App. 2009). Accordingly, we

find clear and convincing evidence that the statutory requirements for termination

have been met and we affirm the termination of the father’s parental rights.

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

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

In re P.L., 778 N.W.2d 33, 37 (Iowa 2010). The father contends that termination

of his parental rights was not in the child’s best interests. Iowa Code

§ 232.116(2); see In re N.M., 528 N.W.2d 94, 96 (Iowa 1995) (holding that a

rebuttable presumption exists that parental custody serves a child’s best

interests). He further claims “that his familial bond with T.A. can transcend the
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challenges posed by his incarceration,” and “that he is determined to know his

son and to be a part of his life no matter how hard he has to work for that

privilege.”

We have thoroughly reviewed the record before us “giv[ing] 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). The father appeared

before the court only once regarding T.A.’s CINA case at the beginning of July

2014. He never had any visits or other contact with the child. The child’s

maternal grandmother loves the child, has been his caregiver since November

2014 when he was six months old, and is willing to adopt him. “It is well-settled

law that we cannot deprive a child of permanency after the State has proved a

ground for termination under section 232.116(1) by hoping someday a parent will

learn to be a parent and be able to provide a stable home for the child.” In re

A.B., 815 N.W.2d at 777 (quoting In re P.L., 778 N.W.2d at 41). Thus upon our

de novo review of the record, we conclude that termination of the father’s

parental rights is in the child’s best interests.

AFFIRMED.