In the Interest of P.J. and D.J., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 18-1364
Filed February 6, 2019

IN THE INTEREST OF P.J. and D.J.,
Minor Children,

P.J., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Muscatine County, Gary P.

Strausser, District Associate Judge.

A father appeals the termination of his parental rights in two children.

AFFIRMED.

Jeannette Keller of Bowman, DePree & Murphy, West Liberty, for appellant

father.

Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

Brian J. Metcalf, Muscatine, guardian ad litem for minor children.

Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
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McDONALD, Judge.

A father appeals the termination of his parental rights in his two children,

D.J., born in August 2010, and P.J., born in August 2013. He challenges one of

the two grounds for termination, argues the State failed to make reasonable efforts

to set up in-person visitation between him and the children, contends termination

is not in the best interests of the children, and argues the children’s placement with

relatives should preclude the termination of his parental rights.

I.

The children (and four half-siblings who are not part of this proceeding) were

removed by court order from the parents’ care in December 2016 upon reports that

the parents were engaging in substance abuse and that their bedroom contained

methamphetamine and drug paraphernalia. D.J., P.J., and two siblings were

placed with their maternal grandparents. They have remained in that placement

without any home trials since removal.

By his own admission, the father was addicted to prescribed hydrocodone

from 2015 to 2017 and began using methamphetamine when he did not have

access to hydrocodone. He was diagnosed with amphetamine abuse and

cannabis abuse disorder. He was scheduled to be admitted for intensive

outpatient treatment for substance abuse but failed to show up for any

appointments.

Upon the parties’ stipulation, the children were adjudicated children in need

of assistance pursuant to Iowa Code section 232.2(6)(n) (2017) on February 16,

2017. The children’s placement in the care of their maternal grandparents

continued. On March 9, a dispositional hearing was held, and on March 15, the
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court continued the children’s placement with their grandparents. The juvenile

court noted the father had been arrested twice for possession of drug

paraphernalia since the adjudication hearing and arrested for attempted murder

following the dispositional hearing.

The father remained in custody following his arrest. On July 7, he pleaded

guilty to willful injury resulting in bodily injury as a habitual offender and was

sentenced to a five-year term in prison. This was the father’s third incarceration

over an almost twenty-year period, all of which the father admitted were related to

his substance-abuse issues. While the father was in the county jail and at the

classification center, no visits with his children were allowed. The father completed

a mental-health evaluation at the classification center. He was diagnosed with

posttraumatic stress disorder (PTSD) and major depressive disorder. He was sent

to a correctional facility on August 21, 2017. At the correctional facility, the father

was encouraged to attend Alcoholics Anonymous (AA) and Narcotics Anonymous

(NA) but was not required to attend substance-abuse programming.

The juvenile court held a termination-of-parental-rights hearing over the

course of two days. The father contested termination of his rights, complaining the

State had failed to make reasonable efforts at reunification. He asserted no in-

person visits with his children were set up until March 24, 2018, and that visit had

to be rescheduled due to severe winter weather. He testified he sent letters and

cards to the children. He also testified he telephoned the children regularly but

was often unable to reach them. The father argued the children were in a safe

relative placement and he should be granted an additional six months because he

was sober, was attending AA and NA meetings, was employed outside the
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correctional facility, and expected to be released from prison within three months.

He stated he would have employment and housing upon his release.

The juvenile court terminated the father’s parental rights pursuant to Iowa

Code section 232.116(1)(e) and (f) (2018). The father appeals.

II.

This court reviews termination proceedings de novo. See In re A.M., 843

N.W.2d 100, 110 (Iowa 2014). The statutory framework authorizing the termination

of a parent-child relationship is well established. See In re A.S., 906 N.W.2d 467,

472-73 (Iowa 2018) (setting forth the statutory framework). The burden is on the

State to prove by clear and convincing evidence (1) the statutory ground or

grounds authorizing the termination of parental rights and (2) termination of

parental rights is in the best interests of the children. See In re E.H., No. 17-0615,

2017 WL 2684420, at *1 (Iowa Ct. App. June 21, 2017).

III.

A.

The father does not challenge the termination of his parental rights under

section 232.116(1)(f). Under section 232.116(1)(f), the court may terminate

parental rights if “[t]he child is four years of age or older”; “has been adjudicated a

child in need of assistance”; has been out of the parent’s custody “for at least

twelve of the last eighteen months, or for the last twelve consecutive months”; and

“cannot be returned to the custody of the child’s parents” at the present time. We

conclude there is clear and convincing evidence to affirm the termination under

section 232.116(1)(f). See In re A.P., No. 17-1830, 2018 WL 540985, at *3 (Iowa

Ct. App. Jan. 24, 2018) (finding incarceration at the time of the termination hearing
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satisfies the requirements of section 232.116(1)(f)); In re D.S., No. 16-1149, 2016

WL 5408175, at *1 (Iowa Ct. App. Sept. 28, 2016) (finding sufficient grounds for

termination where the father could not care for his child due to his incarceration).

Because we conclude the State proved its case on this ground, we need not

address the father’s challenge to the evidence supporting the other ground. See

In re A.B., 815 N.W.2d 764, 774 (Iowa 2012) (stating where “the juvenile court

terminates parental rights on more than one statutory ground, we may affirm the

juvenile court’s order on any ground we find supported by the record”).

B.

The father argues the department of human services did not make

reasonable efforts to provide him visitation after his incarceration. The juvenile

court made no ruling on the father’s claim, and the State asserts the issue is not

properly before us. We bypass the preservation issue and proceed to the merits.

If the department of human services receives custody of a child, it must “make

every reasonable effort to return the child to the child’s home.” Iowa Code

§ 232.102(9); accord In re T.B., No. 18-1139, 2018 WL 4361181, at *2 (Iowa Ct.

App. Sept. 12, 2018). The father contends he asked to be provided visits but the

department of human services did not arrange for visits in a timely manner.

Although a parent’s imprisonment does not absolve the department of

human services of the duty to attempt reunification, “a parent’s imprisonment may

create difficulties in providing reunification services.” In re S.J., 620 N.W.2d 522,

525 (Iowa Ct. App. 2000). This is precisely what occurred here. After the father’s

arrest and during his time in the classification center, his visitation was limited by

the rules of those institutions. He was allowed to write to and have telephone calls
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with his children. He was not allowed in-person visitation while in the classification

center. When the father was moved to a facility where in-person visitation was

allowed, the department of human services navigated the prison’s requirements

and prepared the necessary paperwork. A visit was scheduled for March 24, but

it had to be cancelled because of weather. The visit was rescheduled and held on

April 7. Under the circumstances presented here, we conclude reasonable efforts

were made.

C.

The father contends termination of his parental rights was not in the

children’s best interests because there are other permanency options. This issue

was not raised in the termination hearing. See A.B., 815 N.W.2d at 773 (“[T]he

general rule that appellate arguments must first be raised in the trial court applies

to . . . termination of parental rights cases.”). In any event, we are required to

make a best-interests determination, for which 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 condition

and needs of the child[ren].” Iowa Code § 232.116(2); A.B., 815 N.W.2d at 776

(citation omitted).

These children have been out of the father’s custody since December 2016,

and they deserve permanency. We acknowledge the father’s attempts to deal with

some of his addiction and mental-health issues while in prison. While he has

attended support groups, he has not completed any substance-abuse treatment

and has not established sobriety outside of a supervised and structured setting. “It

is well-settled law that we cannot deprive a child of permanency after the State has
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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.”

A.B., 815 N.W.2d at 777 (citation omitted). The children are residing with their

grandparents and two of their siblings, with whom they are bonded. The children

are doing well in that placement. We find termination of the father’s parental rights

and permanency is in the children’s best interests.

D.

The father next asserts that his close bond with his children should militate

against termination of his parental rights. Iowa Code section 232.116(3)(c) allows

the court to decline termination if “[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.” The factors listed in section 232.116(3) are not

mandatory but permissive. In re D.S., 806 N.W.2d 458, 474-75 (Iowa Ct. App.

2011). A “court has discretion, based on the unique circumstances of each case

and the best interests of the child[ren], whether to apply the factors in this section

to save the parent-child relationship[s].” Id. at 475.

Here, the parent-child bonds have been affected by the father’s absence

from the children’s lives for almost a year. See id. The children are in a stable

placement with relatives and their siblings. See In re L.B.T., 318 N.W.2d 200, 202

(Iowa 1982) (“Wherever possible brothers and sisters should be kept together . . .

.”); see also In re L.A., No. 14-1145, 2014 WL 6682341, at *3 (Iowa Ct. App. Nov.

26, 2014) (noting that part of the emotional need of a child “may include

maintaining close bonds among siblings and half-siblings”). We do not find that

the father-child bond militates against termination of the father’s parental rights.
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E.

The father asks he be granted a six-month extension to seek reunification.

At the time of the termination hearing, the juvenile court may defer termination if

there exist “specific factors, conditions, or expected behavioral changes which

comprise the basis for the determination that the need for removal of the child from

the child’s home will no longer exist at the end of [an] additional six-month period.”

Iowa Code § 232.104(2)(b).

The father acknowledges that while it was “late in the game,” he did realize

“he needed to make essential changes in his life” several months before the

termination hearing. He testified he was attending AA and NA meetings while in

prison and had completed a parenting class, “24:7 Dad Program.” He stated he

was sober and intended to remain so. He testified he intended to seek

psychological counseling and medication management upon being released.

Even if the father is released from prison during the six-month window of a

permissible extension, he has yet to establish a period of sobriety outside a

structured setting. We cannot determine the need for removal will no longer exist

at the end of a six-month period. The juvenile court did not err in denying the

request for an extension.

IV.

We affirm the termination of the father’s parental rights pursuant to Iowa

Code section 232.116(1)(f).

AFFIRMED.