In the Interest of A.D., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 19-1270
Filed October 9, 2019

IN THE INTEREST OF A.D.,
Minor Child,

R.D., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Korie Shippee, District

Associate Judge.

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

AFFIRMED.

Jack E. Dusthimer, Davenport, for appellant father.

Thomas J. Miller, Attorney General, and Anna T. Stoeffler (until withdrawal)

and Mary A. Triick, Assistant Attorneys General, for appellee State.

Matthew D. Hatch, Bettendorf, guardian ad litem for minor child.

Considered by Potterfield, P.J., and Bower and Greer, JJ.
2

GREER, Judge.

R.D. appeals the termination of his parental rights to his daughter A.D.1 The

juvenile court terminated the father’s rights under Iowa Code sections

232.116(1)(b), (e), (g), (h), and (l) (2019). To challenge that ruling, the father

maintains termination is not in the child’s best interests under any of the statutory

grounds, and because of his incarceration and his attempted commitment to A.D.,

reunifications efforts must continue.

I. Facts and Prior Proceedings.

In the midst of termination proceedings related to her older siblings, A.D.

was born in July 2018.2 She tested positive for benzodiazepines at birth. The

father was incarcerated at this time,3 and he has remained incarcerated in some

Iowa penal institution—jail or prison—throughout these proceedings.

Recognizing their inability to provide care, these parents arranged for A.D.’s

paternal aunt and uncle to temporarily act as caregivers upon the child’s discharge

from the hospital, and A.D. continued to reside with the aunt and uncle through the

time of termination.

On October 31, 2018, the court adjudicated A.D. a child in need of

assistance (CINA). After the CINA adjudication, A.D. began weekly visitation with

the father via video at the jail. After terminating the rights of the older children, the

State moved to waive its obligation to make reasonable efforts to reunite A.D. with

1
The parental rights of A.D.’s mother were terminated at the same time. She struggled
with substance abuse, tested positive for benzodiazepines at A.D.’s birth, spent time
incarcerated, and failed to address housing and stability challenges. She does not appeal
the termination of her rights.
2
Rights to three of the father’s other children were terminated on November 26, 2018.
3
At the time of her birth, the father’s incarceration resulted from a probation violation in
May 2018.
3

the parents. Even before the ruling on reasonable-efforts-to-reunite issue, in

February 2019, the jail staff suspended the father’s visitation privileges for fighting

in jail. With a history of lack of effort by the parents, in March, the court waived the

reasonable-efforts requirement, citing the parents’ minimal participation in the

services the Iowa Department of Human Services (DHS) had continually offered

to them since January 2017 with regard to A.D. and her three older siblings.4 Next,

the State petitioned to terminate the rights of both parents. On July 11, the court

held a termination hearing, in which the father participated via telephone from an

Iowa correctional facility.5 Although services ceased before the time of the

hearing, he requested services upon his release from prison on parole, which he

expected to occur in nineteen to twenty weeks. On July 16, the court issued its

order terminating the parental rights of the mother and father.

II. Scope of Review.

Our review of termination cases is de novo. In re L.G., 532 N.W.2d 478,

480 (Iowa Ct. App. 1995). The first step is for the court to determine whether a

ground for termination exists under Iowa Code section 232.116(1). In re P.L., 778

N.W.2d 33, 39 (Iowa 2010). “If a ground exists, the court may terminate a parent’s

parental rights.” Id. In determining whether to terminate, “the 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

4
DHS offered services related to substance abuse, supervision issues, parenting,
homelessness, domestic violence, and mental health previous to their time incarcerated,
and neither parent participated in any meaningful way.
5
According to DHS reports, at the time of the hearing, the father was serving a five-year
sentence for a parole revocation that ran concurrent with a new five-year sentence for
failing to register as a sex offender.
4

emotional condition and needs of the child.” Id. (quoting Iowa Code § 232.116(2)).

The judge’s decision should contain any findings in this regard. Id. Lastly, “the

court must consider if any of the exceptions contained in section 232.116(3) allow

the court not to terminate.” Id.

III. Analysis.

A. Statutory Grounds for Termination.

Under this record, the father disputes, and preserved for review, the

sufficiency of the evidence supporting termination. Given A.D.’s young age,

termination under 232.116(1)(h) applied.6 While the father broadly challenges the

statutory grounds for termination, he does not challenge any specific elements of

section 232.116(1)(h). Thus, he has waived any challenge to these grounds. See

id. at 40 (“Because the father does not dispute the statutory grounds, we do not

have to discuss this step.”) Even so, we find the State clearly satisfied the grounds

for termination under section 232.116(1)(h) because A.D. is under age three, has

been adjudicated CINA, has been removed for the required time, and cannot be

placed in the father’s custody while he remains incarcerated. When the juvenile

court terminates parental rights on more than one statutory ground, the appellate

6
The court may terminate parental rights under section 232.116(1)(h) if it finds 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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court only needs to find that the evidence supports termination on one of the

grounds cited by the juvenile court to affirm. See In re A.B., 815 N.W.2d 764, 774

(Iowa 2012); In re J.B.L., 844 N.W.2d 703, 704 (Iowa Ct. App. 2014). The statutory

grounds for termination are established under this record.

B. Best Interests of the Child.

Moving to the best-interests argument, the reality is that the father was

incarcerated when A.D. was born and he remained incarcerated at the time of the

hearing. Moreover, A.D. has never lived with either parent and has had no

personal contact with the father. On the positive side, A.D. has been in the care

of her aunt and uncle since birth and, not surprisingly, they are well bonded. During

the termination hearing, the father admitted he is an “addict” with regard to drugs

and alcohol. Nevertheless, he has shown little progress on his substance-abuse

issues since DHS began offering services in January 2017, which led to the court

waiving reasonable efforts in March 2019. As for the future, the father testified his

parole had been approved and he would be released in nineteen to twenty weeks

after the hearing, but a DHS report showed his tentative release date was June 1,

2021. Regardless of his precise release date, the best interests of the child require

we not wait to establish permanency while an incarcerated father struggles “to get

his own life together.” In re J.E., 907 N.W2d 544, 547 (Iowa Ct. App. 2017). Still,

the father has had over two years of State involvement to correct the issues

underlying removal. The issues remain. “At some point, the rights and needs of

the child rise above the rights and needs of the parents. The legislature, through

section 232.116 directs us to that point.” In re J.L.W., 570 N.W.2d 778, 781 (Iowa

Ct. App. 1997), overruled on other grounds by P.L., 778 N.W.2d at 39–40. In this
6

case, we are far past that point. After considering all the factors in section

232.116(2), we find termination is in the child’s best interests.

C. Closeness of Parent-Child Bond.

Next, the father asserts the closeness of his bond with A.D. precludes

termination under section 232.116(3)(c). Such a bond is a permissive, not

mandatory, factor against termination. See P.L., 778 N.W.2d at 38. At trial, no

proof established a strong bond. The opposite was true. Considering A.D.’s young

age, the father’s incarceration since her birth, and the lack of any personal contact,

whatever bond exists cannot weigh against termination. Simply put, the father did

not meet his burden to show by clear and convincing evidence the requisite

closeness of a parent-child bond. See In re A.S., 906 N.W.2d 467, 476 (Iowa

2018).

D. Reasonable-Efforts Requirement.

As a final issue, the father raises his limited access to the child because of

his incarceration as an interference to reunification. To the extent he argues the

State failed to provide alternative services, he waived this argument by failing to

request such alternatives at the proper time. See In re L.M., 904 N.W.2d 835,

839–40 (Iowa 2017). To the extent he argues the State failed to fulfill its

reasonable-efforts requirement, the record shows the State offered services,

including substance-abuse and mental-health treatment, from January 2017

through the March 2019 waiver of reasonable efforts. What is more, the case

progress reports show the State has remained in contact with the father throughout

his incarceration and continuing after the waiver of reasonable efforts. While the

father participated in weekly video visitation with A.D. from the October 2018 CINA
7

adjudication through his February 2019 suspension for fighting, the record

provides no indication he took any affirmative steps to resume visitation after his

suspension. Thus, we find the State met its reasonable-efforts requirement. See

In re C.B., 611 N.W.2d 489, 493 (Iowa 2000).

We agree with the juvenile court that the statutory grounds for termination

are satisfied, termination is in the child’s best interests, and no factor precludes

termination.

AFFIRMED.