In the Interest of F.K., Minor Child, A.K., Father

IN THE COURT OF APPEALS OF IOWA

No. 16-1734
Filed February 22, 2017

IN THE INTEREST OF F.K.,
Minor child,

A.K., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Poweshiek County, Rose Anne

Mefford, District Associate Judge.

The father appeals from the juvenile court order terminating his parental

rights to his minor child. AFFIRMED.

Michael S. Fisher of Fisher Law Office, Oskaloosa, for appellant father.

Thomas J. Miller, Attorney General, and Janet L. Hoffman, Assistant

Attorney General, for appellee State.

Jane K. Odland of Odland Law Firm, P.L.L.C., Newton, guardian ad litem

for minor child.

Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.

The father appeals from the juvenile court’s order terminating his parental

rights to his child, F.K.1 The father maintains there is not clear and convincing

evidence F.K. could not be returned to his care at the time of the termination

hearing and the closeness of the parent-child bond weighs against termination.

I. Background Facts and Proceedings.

The Iowa Department of Human Services (DHS) first became involved

with the family in April 2015, due to allegations the parents were using

methamphetamine while caring for the minor child. F.K. was adjudicated a child

in need of assistance and removed from the mother’s care on April 27, 2015. At

the time, the father was considered the more stable parent—he had been able to

provide a “clean” urinalysis—and F.K. was placed in his care with ongoing DHS

supervision.

F.K. remained in the father’s care until August 12, 2015, when she was

removed because the father lacked stable housing and employment, and he was

not engaged with DHS and the recommended services—including not completing

requested drug tests.

F.K. was returned to her father’s care in December 2015. The father had

found housing on his grandparents’ property, obtained employment, and once

again provided a clean drug screen. However, the stability was again short-lived,

and F.K. was removed from her father’s care for the final time on February 9,

2016. The final removal occurred after the father refused to have a drug patch

placed on him. Additionally, DHS was struggling to contact the father; he rarely

1
The mother’s parental rights were also terminated. She does not appeal.
3

stayed at his purported home on the grandparents’ property and he was

“unreachable” by phone. It was unclear where the father was staying with F.K.

and who he was allowing to be around and care for the child.

After F.K. was removed in February, the father oscillated between

claiming he was “done trying” and demanding immediate visits with F.K. from

DHS. The social worker described him as volatile and testified the father would

sometimes leave her voicemails in the middle of the night. The father did not

present himself for a single DHS-requested drug test between the February

removal and the termination hearing on August 26.

Following a May 2016 visit, F.K. reported that her father had a gun in his

backpack during their visit and that he told her he was going to “kill all the bad

people.” When questioned about it, the father reported he had a tool from work

in his bag—a “paint gun” used in auto body repairs—and denied making any

threatening comments. Approximately one week later, the mother called the

social worker and reported the father had started making threats toward the

maternal grandmother—with whom F.K. had been placed after the removal.

DHS filed a motion with the court to have visits suspended, and following a

dispositional review hearing on June 9—where the motion went unresisted—

visits were suspended. Visits were to begin again after the father completed

substance-abuse and mental-health evaluations and began following any

recommendations contained in those evaluations.

The father completed the mental-health evaluation in late June. The

evaluation found that the father was “stable” but noted that he was “agreeable to

ongoing counseling.” The father never sought counseling afterward.
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Additionally, there were questions about how truthful he was during the

evaluation, as the notes of the evaluator stated the father denied alcohol use,

illegal drug use, and prescription drug use.

The father completed a substance-abuse evaluation on July 6. Based on

his self-reported usage of marijuana and alcohol, the evaluation recommended

the father complete extended outpatient treatment. The father did not begin

doing so before he voluntarily returned for another evaluation on July 18. When

he returned, the father told the evaluator he had been dishonest before, admitted

he had been using amphetamines, and asked for inpatient treatment. The

evaluator changed the recommendation to inpatient, and the father was able to

begin the treatment on August 9.

The father attended the termination hearing on August 26; he reported he

had been discharged after successfully completing the program the night before

the hearing. Although confirmation was not available at the time of the hearing,

within a few days, the father submitted a letter from the treatment provider

confirming he had successfully completed the program.

At the termination hearing, the father denied using methamphetamine or

amphetamines. He maintained his “drug of choice” was marijuana and admitted

that he had a problem with alcohol. When asked why he reported on July 18 to

the evaluator that he had been using amphetamines, the father denied doing so.

Later, when asked again, he stated he “may have said that just to get into

inpatient treatment and rehab,” and claimed he “[m]ade it sound more severe

than it was, actually.” Additionally, the father was asked about a police report

from July 13, which stated the father had been found sleeping or passed out in a
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car at 8:00 a.m. with white powder on his face and a drug grinder with “white

residue” in the vehicle with him. The father denied the grinder was a drug

grinder, and he claimed the white powder on his face was actually dried diaper

rash cream that he uses to sooth the rash he had from “being saturated with

metals” at his job three years prior.

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

Code section 232.116(1)(h) (2016).

The father appeals.

II. Standard of Review.

“In termination-of-parental-rights cases, we review the proceedings de

novo.” In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). Although we are not

bound by them, we give the juvenile court’s findings of fact weight—especially in

assessing witness credibility. Id.

III. Discussion.

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

section 232.116(1)(h).2 Here, the father only challenges the final element—the

court’s determination there was clear and convincing evidence F.K. could not be

returned to the father’s care at the time of the termination hearing. See Iowa

2
Section 232.116(1)(h) allows the court to terminate if it finds by clear and convincing
evidence all of the following:
(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.
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Code § 232.116(1)(h)(4); see also In re C.B., 611 N.W.2d 489, 495 (Iowa 2000)

(“At the time of the termination hearing, there was clear and convincing evidence

the children could not be returned to the care of [the parent].”). He claims the

child could be returned because he has an appropriate and safe home; followed

through with DHS’s recommendations; and cooperated with family safety, risk,

and permanency services.

We believe the record belies the father’s assertions. The father was

discharged from substance-abuse treatment less than twenty-four hours before

the termination hearing. At the hearing, he testified he was unsure where he

would be staying going forward. He had a short-term plan to stay at the home of

his aunt, but he was unsure what town he would even be living in after that. He

testified his aunt’s home was safe and appropriate, but DHS had not confirmed

these statements. Additionally, the father did not have his driver’s license; it had

been suspended due to driving at excessive speeds and he could not have it

reinstated until—according to the father’s testimony—September 2016. The

father’s lack of stability was still an ongoing issue at the time of the hearing.

The father’s visits had never resumed after their suspension on June 9, so

he had not seen F.K. for almost three months at the time of the termination.

Moreover, because of his very recent discharge from treatment, the father had

not yet established he was able to maintain his sobriety for any length of time.

Like the juvenile court, we do not find the father’s testimony about the July 13

incident or his claims that he never used amphetamines to be credible. This, in

turn, leads us to question whether the father resolved his issues with substance

abuse. See, e.g., In re A.B., 815 N.W.2d 764, 776 (Iowa 2012) (stating that the
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father’s “drug problem was unresolved” and thus he was “not in a position to

provide a safe and stable home” where the father continued to deny his drug use

in spite of credible evidence to the contrary).

We agree with the juvenile court that F.K. could not be returned to the

father’s care at the time of the termination hearing.

The father also maintains that termination of his parental rights was not in

F.K.’s best interests because of the closeness of their bond. See Iowa Code

§ 232.116(2) (“[T]he court 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.),

(3)(c) (stating the court need not terminate 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”). While the father and the child are

bonded, there is nothing in the record that suggests the child would be harmed

by the termination of the father’s rights. See In re D.W., 791 N.W.2d 703, 709

(Iowa 2010) (“[O]ur consideration must center on whether the child will be

disadvantaged by termination, and whether the disadvantage overcomes [the

parent’s] inability to provide for [the child’s] developing needs.”).

Permanency and stability are in F.K.’s best interests, and the maternal

grandmother and step-grandfather can provide that. They are willing to adopt

F.K. and have enrolled in the necessary classes to begin the process. Even the

father conceded the grandmother took excellent care of F.K. and that she had

often been responsible for caring for F.K. even before DHS became involved with
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the family. When the social worker was asked how F.K. was doing in her

placement at the maternal grandmother’s, she testified:

[F.K.] is very, very happy there. She’s well-adjusted. She
has all of her needs met. She has her own room with lots and lots
of toys. She loves her “Gaga” and [step-grandfather]. She loves to
ride her bike and is just happy and well-cared for and loved.
Q: What other supports play a role in her life when she’s with
them? A. Lots of extended family members. She also has a half-
sibling on [mother’s] side. The contact is made through [maternal
grandmother] and [step-grandfather], as well, with that half-sibling.
I mean, they have a lot of extended family support. They also have
childcare in place, and she’s starting preschool—well, she calls it
“preschool”—in the community, so she is visible in the community
now, so there are a lot of supports there.

Termination of the father’s parental rights is in F.K.’s best interests. We affirm.

AFFIRMED.