In the Interest of J.B.L., Minor Child, Q.S., Father

IN THE COURT OF APPEALS OF IOWA

No. 4-035 / 13-1995
Filed February 19, 2014

IN THE INTEREST OF J.B.L.,
Minor Child,

Q.S., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Union County, Monty W. Franklin,

District Associate Judge.

A father appeals from the order terminating his parental rights.

AFFIRMED.

Diana L. Rolands of Rolands Law Office, Osceola, for appellant father.

Jane Orlanes of Orlanes Law Office, P.L.C., Clive, for mother.

Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant

Attorney General, and Timothy R. Kenyon, County Attorney, for appellee State.

Patrick W. Greenwood, Lamoni, for minor child.

Considered by Vogel, P.J., Tabor, J., and Mahan, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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MAHAN, S.J.

A father appeals the termination of his parental rights to his child. He

contends the State failed to prove the grounds for termination by clear and

convincing evidence. He also contends termination is not in the child’s best

interests. Finally, he asks for additional time to have the child returned to his

care. We review his claims de novo. See In re A.B., 815 N.W.2d 764, 773 (Iowa

2012).

The child was removed from the mother’s care after testing positive for

drug exposure at birth in December 2012. The father was not identified until

paternity testing was conducted in April 2013, after the two men the mother first

named as potential fathers were excluded. The father has been incarcerated

since May 2012 and has no relationship with the child.

The State filed its petition to terminate the father’s parental rights in

August 2013. The termination hearing was held in October 2013. The following

month, the juvenile court filed its order terminating the father’s parental rights.

I. Ground for Termination.

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

Code sections 232.116(1)(b), (d), (e), (h), and (i) (2013). The father challenges

the sufficiency of the evidence supporting termination under each of these

subparts. However, we need only find termination appropriate under one of

these sections to affirm. See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App.

1999).

Termination may be had under section 232.116(1)(h) where the following

have occurred:
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(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.

The father only contests the sufficiency of the evidence establishing the child has

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

months or for the last six consecutive months. He argues this requirement was

not met because he was not made aware of his paternity until May 2013 and the

termination hearing was held only five months later. It does not appear this issue

was properly raised below, and the juvenile court did not address it in its order

terminating parental rights. Therefore, error has not been preserved for our

review. See In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App. 1994) (“As a

general rule, an issue not presented in the juvenile court may not be raised for

the first time on appeal.”).

Even if error was preserved, we find the father’s claim is without merit.

The child has been in the Iowa Department of Human Services’ custody since

December 2012. In a factually similar case where the father was contesting the

six-month element of section 232.116(1)(h)(3) our court stated as follows:

As to the third element, he argues that because he had only
been proved to be S.D.’s father on April 15, 2011, five months prior
to the termination hearing on September 14, 2011, S.D. had only
been removed from him that period of time and not the required six
months. Section 232.116(1)(h)(3) speaks of a child’s removal from
the “physical custody” of the parents. Pursuant to the juvenile
court’s orders, since March 3, 2011, S.D. has been continuously
removed from her parents, placed in the legal custody of the DHS,
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and placed in a foster family home. At all times the father was the
biological father of S.D. He simply was not adjudicated the father
until the decree or order was entered reaching this conclusion.
Iowa Code section 232.116(1)(h) does not require the six month
period to begin upon being adjudicated the father. . . . Here, we
believe that the State may rely upon the evidence that S.D. was
never in the father’s custody before paternity was established to
satisfy the six month requirement in section 232.116(1)(h). We
conclude the State proved the third element by clear and
convincing evidence.

In re S.D., No. 11-1597, 2011 WL 6086332, at *3 (Iowa Ct. App. Dec. 7, 2011).

Therefore, we conclude this element has been established.

II. Best Interests.

The father next contends termination is not in the child’s best interests. In

making the best-interests determination, 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).

We find termination is in the child’s best interests. The father has been

incarcerated since the child was born and has no relationship with the child. The

earliest the father would be released from prison was December 2013, at which

time he testified he would be in a work release/supervised living program for one

to three months before discharge. The juvenile court found the earliest the father

would be available to parent the child would be four to six months after the

termination hearing and based on the father’s history of criminal behavior,

alcohol and substance abuse, and mental health concerns, it would be unlikely

the father could immediately resume care for the child. We agree. The father

has a prior child endangerment conviction based on his failure to supervise
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another child after a night of drinking. His history of criminal activity led to his

incarceration from August 2010 until June 2011, and then again from May 2012

until the time of termination. This history casts doubt on the father’s ability to

safely parent this child. See In re J.E., 723 N.W.2d 793, 798 (Iowa 2006) (noting

that in making the best-interests determination, we look to the parent’s past

performance because it may indicate the quality of care the parent is capable of

providing in the future).

In contrast, the child has been in the same foster care placement his

entire life. His foster parents are the only parents he has ever known, he is

bonded with them and looks to them to provide his needs, and they wish to adopt

him. See Iowa Code § 232.116(2)(b)(1) (providing that in determining the child’s

best interests, the court may consider a child’s integration into the foster family

“to the extent that the child’s familial identity is with the foster family, and whether

the foster family is able and willing to permanently integrate the child into the

foster family”). The child deserves and needs the stability and permanency they

offer.

III. Additional Time.

Finally, the father asks for additional time to prove he can parent the child.

Under Iowa Code section 232.104(2)(b), the court may continue placement of the

child for an additional six months if the need for removal will no longer exist at the

end of this period. See also Iowa Code § 232.117(5) (providing that the court

may enter an order in accordance with the provisions of section 232.104 if

parental rights are not terminated following the termination hearing). As stated

above, clear and convincing evidence shows that even if the father’s parental
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rights were not terminated, he would be unable to safely parent the child within

six months of the termination hearing.

We affirm the order terminating the father’s parental rights.

AFFIRMED.