In the Interest of B.M. and B.M., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 21-0334
Filed August 4, 2021

IN THE INTEREST OF B.M. and B.M.
Minor Children,

B.M., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Buena Vista County, Mary L. Timko,

Associate Juvenile Judge.

A father appeals the termination of his parental rights to his children.

AFFIRMED.

T. Cody Farrens of Vriezelaar, Tigges, Edgington, Bottaro, Boden &

Lessman, L.L.P., Sioux City, for appellant father.

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

Murphy Smith, Assistant Attorneys General, for appellee State.

Lori Kolpin, Aurelia, attorney and guardian ad litem for minor children.

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

A father appeals the termination of his parental rights to his children, born

in 2018 and 2019, pursuant to Iowa Code section 232.116(1)(d), (e), (h), and (i)

(2020).1 He challenges the sufficiency of evidence as to each ground for

termination, argues termination is contrary to the children’s best interests given the

closeness of the parent-child bonds, and requests additional time to work toward

reunification.

I. Background Facts and Proceedings

The father has a criminal history largely relating to his aggressive

tendencies. This family came to the attention of the Iowa Department of Human

Services (DHS) in April 2018 upon reports of domestic violence between the

parents. In July, there were reports of physical abuse of one of the mother’s other

children, which were confirmed upon the mother’s concession she bit the other

child. In August, the mother reported to DHS the father subjected her and her

other child to physical abuse on several occasions between December 2017 and

July 2018. The older child involved in this appeal was born in October 2018.

Concerns for domestic violence continued through the time the State filed a child-

in-need-of-assistance (CINA) petition in September 2019, shortly before which the

younger child was born.

By October, the mother had discontinued contact with service providers,

and it was believed she and the children were residing with the father, who was

the subject of charges of child endangerment and domestic abuse assault arising

1 The mother’s rights were also terminated. She does not appeal.
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out of his conduct toward the mother and children. The State filed a CINA petition

as to the younger child and sought and obtained an order for temporary removal

of both children. The mother and children were located in the father’s home, and

the parents were arrested for violating an active no-contact order. Following an

adjudication hearing in November, by which point the father had been charged with

second-offense operating while intoxicated and first-degree harassment, the court

adjudicated both children CINA pursuant to Iowa Code section 232.2(6)(b), (c)(2),

and (n) (2019) and ordered continued removal.

The father was arrested for domestic abuse assault against the mother on

two separate occasions in March and April 2020, as well as public intoxication in

April. The mother reported her continuing concerns for the father’s alcohol abuse

and domestic violence. This was all in spite of the father’s continuing participation

in domestic-violence and substance-abuse treatment. In May, DHS recommended

the institution of termination proceedings. In its ensuing permanency order, the

court agreed and directed the State to do so. The State filed its termination

petitions in July.

Also in July, the father was charged with domestic abuse assault, first-

degree harassment, fifth-degree criminal mischief, obstruction of emergency

communications, third-degree harassment, and three counts of violation of a no-

contact order in relation to further incidents between him and the mother. In

August, he was again charged with violating a no-contact order, as well as fifth-

degree theft. By October, the father was discharged from substance-abuse

treatment due to not participating and not contacting his counselor. His counselor

reported he would have to start all over in domestic-abuse treatment due to his
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new domestic assault charges. The father did not reinitiate treatment until shortly

before the termination trial.

Trial commenced in August 2020 but evidence was not received until the

second day of trial in February 2021. Ultimately, the court terminated the father’s

rights under Iowa Code section 232.116(1)(d), (e), (h), and (i) (2020). The father

appeals.

II. Standard of Review

Appellate review of orders terminating parental rights is de novo. In re A.B.,

956 N.W.2d 162, 168 (Iowa 2021); In re C.Z., 956 N.W.2d 113, 119 (Iowa 2021).

Our primary consideration is the best interests of the children, In re J.E., 723

N.W.2d 793, 798 (Iowa 2006), the defining elements of which are the children’s

safety and need for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa

2011).

III. Analysis

A. Sufficiency of Evidence

The father challenges the sufficiency of the evidence supporting each of the

statutory grounds for termination. “[W]e may affirm the juvenile court’s termination

order on any ground that we find supported by clear and convincing evidence.” In

re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We choose to focus on Iowa Code

section 232.116(1)(h). As to that provision, the father only challenges the State’s

establishment of the final element—that the children could not be returned to his

care at the time of the termination hearing. See Iowa Code § 232.116(1)(h)(4)

(requiring clear and convincing evidence that the children cannot be returned to

the custody of their parents at the present time); D.W., 791 N.W.2d at 707
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(interpreting the statutory language “at the present time” to mean “at the time of

the termination hearing”).

The father simply argues “there was insufficient evidence the children would

suffer adjudicatory harm if returned to” his care. He argues he is engaged in

domestic-abuse treatment, so the need for removal no longer exists. But the father

does not acknowledge his propensity for violence, domestic or otherwise, and he

downplayed the domestically violent nature of his relationship with the mother,

testifying there were only ever two instances of domestic violence between him

and the mother and he does not consider himself a domestic abuser. He also

downplayed his alcohol abuse. Even more troubling is the fact that he continued

to engage in acts of violence and abuse alcohol despite participating in treatment

aimed at addressing the same. He also argues “there is no opportunity for further

domestic disturbances,” as he and the mother ended their relationship and her

rights were terminated. But evidence was presented showing the parents

remained in a relationship during much of these proceedings. At the time of the

termination hearing, the mother was pregnant with yet another of the father’s

children. And the parents clearly communicate frequently, and the mother was

observed to give the father rides after his individual visits with the children. The

father’s current claim the relationship is over is suspect.

Also, the Family Centered Services worker testified to safety concerns

during visits with the father, namely giving the children too big of bites of food,

“roughhousing” that has resulted in the children slapping others at daycare, and

the father not being able to safely supervise both children at once. The worker

opined the children would not be safe in an unsupervised setting with the father.
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The DHS worker testified the children could not be returned to the father’s care at

the time of trial or within a reasonable period of time due to the father’s lack of

progress in relation to alcohol abuse and domestic violence and her resulting

concern for the children’s safety. We agree.

Upon our de novo review of the record we find the evidence clear and

convincing that the children could not be returned to the father’s care.

B. Best Interests and Statutory Exception

The father argues termination is contrary to the children’s best interests

given the closeness of the parent-child bonds. We choose to separately address

the often-conflated best-interests and statutory-exception arguments. See In re

A.S., 906 N.W.2d 467, 472–73 (Iowa 2019) (discussing three-step termination

framework); In re A.R., 932 N.W.2d 588, 591 (Iowa Ct. App. 2019) (same).

In determining whether termination is in the best interests of a child, we

“give 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 cites his housing, financial stability, and ability to support the children’s

needs. But those were not the ongoing concerns in the proceedings. The

concerns for domestic violence and alcohol abuse were, and concerns for the

same remain.

As noted, the defining elements of children’s best interests are the children’s

safety and need for a permanent home. H.S., 805 N.W.2d at 748. “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
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will . . . be able to provide a stable home for the child.” In re A.B., 815 N.W.2d 764,

777 (Iowa 2012) (quoting In re P.L., 778 N.W.2d 33, 39 (Iowa 2010)). The father

has been given ample time to get his affairs in order, and these children’s best

interests are best served by providing permanency and stability now. See id. at

778 (“It is simply not in the best interests of children to continue to keep them in

temporary foster homes while the natural parents get their lives together.” (quoting

In re C.K., 558 N.W.2d 170, 175 (Iowa 1997))). The children are thriving and

integrated into their foster home. Continued stability and permanency in this home

is in these children’s best interests. See Iowa Code § 232.116(2)(b); cf. In re M.W.,

876 N.W.2d 212, 224–25 (2016) (concluding termination was in best interests of

children where children were well-adjusted to placement, the placement parents

were “able to provide for their physical, emotional, and financial needs,” and they

were prepared to adopt the children). These children should not have to wait any

longer for permanency; they are entitled to immediate constant, responsible, and

reliable parenting. See In re L.L., 459 N.W.2d 489, 495 (Iowa 1990). Because

termination followed by adoption will satisfy these children’s need for a permanent

home, we conclude termination is in their best interests.

As to the parent-child bonds, Iowa Code section 232.116(3)(c) allows the

juvenile court to forego 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.” We first note the application of the

statutory exception to termination is “permissive, not mandatory.” M.W., 876

N.W.2d at 225 (quoting In re A.M., 843 N.W.2d 100, 113 (Iowa 2014)). While we

acknowledge bonds between the father and children, they can only be
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characterized as limited given the children’s young age and removal from the

father’s care for most of their lives. We find the evidence insufficient to show

“termination would be detrimental to the child[ren] . . . due to the closeness of the

parent-child relationship[s].” See A.S., 906 N.W.2d at 476 (noting the parent

resisting termination bears burden to establish exception to termination). We

therefore decline to apply the statutory exception to termination. Alternatively, we

conclude application of the exception would be contrary to the children’s best

interests.

C. Additional Time

The father requests additional time to work toward reunification. If, following

a termination hearing, the court does not terminate parental rights but finds there

is clear and convincing evidence that the child is a child in need of assistance, the

court may enter an order in accordance with section 232.104(2)(b). Iowa Code

§ 232.117(5). Section 232.104(2)(b) affords the juvenile court the option to

continue placement of a child for an additional six months if the court finds “the

need for removal . . . will no longer exist at the end of the additional six-month

period.”

The father simply argues he should have been granted additional time

because he was engaged in services that would correct the situation. He points

to the primary issues of domestic violence and alcohol abuse and says his

continued participation in treatment aimed at the same will alleviate the need for

removal. But the father participated in those programs throughout the

proceedings, and the situation did not improve. He then disengaged in those

programs in October 2020 and did not reengage until January 2021, shortly before
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the termination hearing the following month. Upon our review, we are unable to

conclude the need for removal from the father’s care would no longer exist after

an extension, and we decline his request for an extension.

IV. Conclusion

We affirm the termination of the father’s parental rights.

AFFIRMED.