In the Interest of J.S., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 20-0224
Filed April 15, 2020

IN THE INTEREST OF J.S.,
Minor Child,

L.S., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Thomas J. Straka,

Associate Juvenile Judge.

A father appeals the juvenile court decision terminating his parental rights.

AFFIRMED.

Dustin Baker of Henkels and Baker, PC, Dubuque, for appellant father.

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

Attorney General, for appellee State.

Kathryn A. Duccini of Duccini Law Office, PLLC, Dubuque, attorney and

guardian ad litem for minor child.

Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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SCHUMACHER, Judge.

A father appeals the juvenile court decision terminating his parental rights.

We find there is clear and convincing evidence in the record to support termination

of the father’s parental rights. The father waived his claim concerning reasonable

efforts by not raising it before the juvenile court. We conclude termination of the

father’s rights is in the child’s best interests. Accordingly, we affirm the decision of

the juvenile court.

I. Background Facts & Proceedings

L.S., father, and J.C., mother, are the parents of J.S., born in 2017. The

father was incarcerated in Wisconsin at the time of the child’s birth on charges of

possession of methamphetamine and burglary tools, and he remained

incarcerated during most of the child’s life. The child was removed from the

parents’ care on April 19, 2018, due to the mother’s use of methamphetamine.

The child was placed with a maternal aunt. Hair tests for both the child and the

mother were positive for methamphetamine.

The child was adjudicated to be in need of assistance on May 24, pursuant

to Iowa Code section 232.2(6)(c)(2), (n), (o), and (p) (2018). The mother made

progress in addressing her problems with substance abuse and the child was

returned to her care in December. The mother relapsed and the child was removed

again on April 15, 2019. The child was placed with suitable other persons, M.K.

and L.K., who have expressed an interest in adopting the child.

The father was released to a residential correctional facility in Iowa on

November 26. He immediately contacted the Iowa Department of Human Services

(DHS). He began interactions with the child in December, as well as Family Safety,
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Risk, and Permanency Services. The father obtained a job while at the residential

facility. It was unknown how long he would be at the residential facility. He

expected to be discharged from parole in 2023.

On December 5, the State filed a petition seeking termination of the parents’

rights. After a hearing in January 2020, the juvenile court terminated the parents’

rights under section 232.116(1)(h) (2019).1 At the time of the termination hearing,

J.S. was twenty-eight months old and had been out of parental custody for

seventeen months. The juvenile court noted the child could not be returned to the

father’s care at the time of the hearing because the father was residing at a

residential correctional facility, where children were not allowed. The court denied

the father’s request for an extension of time, stating it was unable to find that the

need for removal would not exist after six months. The court determined

termination of the father’s parental rights was in the child’s best interests. The

court did not apply any of the exceptions found in section 232.116(3). The father

now appeals.

II. Standard of Review

Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d

764, 773 (Iowa 2012). The State must prove its allegations for termination by clear

and convincing evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). “‘Clear

and convincing evidence’ means there are no serious or substantial doubts as to

the correctness [of] conclusions of law drawn from the evidence.” Id. Our primary

1 The mother did not appeal the termination of her parental rights.
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concern is the best interests of the children. In re J.S., 846 N.W.2d 36, 40 (Iowa

2014).

III. Discussion

A. The father claims there is not sufficient evidence in the record to

support termination of his parental rights under section 232.116(1)(h). Section

232.116(1)(h) provides for termination of parental rights when the following

elements have occurred:

(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of
assistance 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.

There is sufficient evidence in the record to support each of these elements.

The child was less than three years of age, the child was adjudicated to be in need

of assistance, and the child was removed from the parents’ care for over eight

months from the time of the second removal in April 2019 to the time of the

termination hearing in January 2020. Also, there is clear and convincing evidence

in the record to show the child could not be returned to the father’s care. The father

was living in a residential correctional facility that did not permit children to live

there with their parents. The juvenile court properly determined there were grounds

for termination of the father’s rights under section 232.116(1)(h).
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B. The father asserts the State did not engage in reasonable efforts to

reunite him with his child. He contends he should have been given visitation with

the child while he was incarcerated.

“The State must show reasonable efforts as a part of its ultimate proof the

child cannot be safely returned to the care of a parent.” In re L.M., 904 N.W.2d

835, 839 (Iowa 2017) (quoting C.B., 611 N.W.2d at 493). Although DHS must

make reasonable efforts towards reunification, “parents have a responsibility to

object when they claim the nature or extent of services is inadequate.” Id. at 839–

40. “In general, if a parent fails to request other services at the proper time, the

parent waives the issue and may not later challenge it at the termination

proceeding.” Id. at 840 (quoting In re C.H., 652 N.W.2d 144, 148 (Iowa 2002)).

In a permanency order dated January 30, 2019, the juvenile court stated,

“Father indicated he was in agreement with the Department’s recommendations

as they pertain to him and was not requesting any additional services.”

Additionally, the issue of reasonable efforts as to the father was not raised at the

termination hearing. The record does not show the father requested any additional

services, including visitation.2 We conclude he waived this issue and we do not

further address it. See id.

C. The father claims termination of his parental rights is not in the child’s

best interests. He states he might be released from the residential correctional

facility soon and could then assume the care of the child. He asserts he engaged

2 The father began interactions with the child in December 2019 following his
transfer to a residential treatment facility.
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in meaningful interaction with the child after he was released from prison in

November 2019.

“When we consider whether parental rights should be terminated, we ‘shall

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.’” In re M.W., 876 N.W.2d 212, 224

(Iowa 2016) (quoting Iowa Code § 232.116(2)). “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 P.L., 778 N.W.2d

33, 41 (Iowa 2010).

The father did not know when he would be released from the residential

correctional facility. Even after he was released, he would need to obtain stable

housing and show a period of stability before the child could be placed in his care.

Furthermore, he would need to show he could maintain sobriety outside an

institutional setting. The juvenile court stated:

[F]ather was not able to set forth a reliable timeframe as to when he
will be able to establish his own housing and reach the level
necessary in order to even begin interactions with the child.
Thereafter, father would need to exhibit a substantial length of time
of compliance with case plan expectations and sobriety.

We agree with this finding of the juvenile court. We conclude it is not in the child’s

best interests to wait for the father to achieve the level of stability that would be

necessary for the father to parent the child, and we affirm the juvenile court’s

decision terminating the father’s parental rights.

AFFIRMED.
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Mullins, J., concurs; Tabor, P.J., concurs specially.
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TABOR, Presiding Judge (concurring specially).

I agree with the outcome reached by the majority but write separately to

raise a concern about the lack of visitation offered to the father while he was

incarcerated in Wisconsin. It does not appear that the Iowa Department of Human

Services (DHS) made any real effort to assess the feasibility of regular supervised

visits between J.S. and his father. The DHS worker testified at the termination trial

that a relative placement did take J.S. to visit his father at the correctional facility

in Prairie du Chien in 2018. But the DHS worker was unable to provide any

information about how those visits were conducted.

The family safety, risk, and permanency (FSRP) worker did not start

supervised visitation between J.S. and the father until he was paroled in late

November 2019. Those visits went well and the father was faithful in his

attendance. Not establishing consistent contact between J.S. and his father earlier

was a lost opportunity.

For two decades we have required the DHS to follow its statutory mandate

to provide reunification services even when a parent is incarcerated. See In re

S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000) (directing DHS to consider

whether visitation is reasonable based on these factors: child’s age, bonding with

parent, clinical recommendations concerning visitation, nature of parenting

deficiencies, physical location of child and parent, limitations of place of

confinement, services available in prison, nature of offense, and length of parent’s

sentence). Yet nothing in this record suggests the DHS staff performed that

evaluation. Had the DHS considered the relevant factors, it appears visitation

may have been feasible. For instance, distance was not a great impediment. As
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the father notes in his petition on appeal, Prairie du Chien was only forty miles from

Dubuque. In addition, a family member had arranged visits between J.S. and the

father at the prison, suggesting the setting and the interactions were appropriate.

Parental incarceration has a devastating impact on the children left behind.

See Amy B. Cyphert, Prisoners of Fate: The Challenges of Creating Change for

Children of Incarcerated Parents, 77 Md. L. Rev. 385, 386 (2018) (citing Annie E.

Casey Found., A Shared Sentence: The Devastating Toll of Parental Incarceration

on Kids, Families and Communities 1–7 (2016),

http://www.aecf.org/m/resourcedoc/aecf-asharedsentence-2016.pdf). In Iowa,

parents’ attorneys must ensure their incarcerated clients voice their desire to have

visitation, if appropriate. See In re L.M., 904 N.W.2d 835, 840 n.9 (2017) (“Whether

visitation for an incarcerated parent should be ordered as a reasonable effort

toward reunification when timely raised by the parent will depend on the

circumstances of each case.”). Resources are available to help attorneys navigate

the issues facing incarcerated parents. See https://www.drake.edu/law/clinics-

centers/middleton/ipp/https://www.drake.edu/law/clinics-centers/middleton/ipp/

(last visited Apr. 9, 2020). In this case, I agree with the majority that the father did

not preserve his reasonable-efforts argument.

At the same time, I would emphasize the DHS and FSRP workers must not

operate on the assumption that incarcerated parents cannot be allowed visitation.

The DHS should follow its statutory mandate and the guidance from S.J. to assess

the feasibility of regular supervised visits between incarcerated parents and their

children.