In the Interest of D.F., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 20-0222
Filed April 29. 2020

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

T.H., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Scott Strait,

District Associate Judge.

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

AFFIRMED.

Ryan M. Dale, Council Bluffs, for appellant father.

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

Attorney General, for appellee State.

Roberta Megel, Council Bluffs, attorney and guardian ad litem for minor

child.

Considered by Bower, C.J., Schumacher, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
2

POTTERFIELD, Senior Judge.

The putative father1 appeals the termination of his parental rights to D.F.,

born in 2014.2 The juvenile court terminated the father’s parental rights pursuant

to Iowa Code section 232.116(1)(b) and (e) (2019). Here, the father argues his

rights should not be terminated because the Iowa Department of Human

Services (DHS) did not complete the court-ordered paternity testing on the father

and termination is not in the child’s best interests.

I. Background Facts and Proceedings.

DHS became involved with this family in January 2019. At the time, D.F.

was living with his maternal grandmother as part of an informal arrangement that

began in 2017, but the grandmother’s physical and mental health had

deteriorated to the point she was no longer able to care for him on her own.3 The

father was incarcerated in federal prison, and the mother was homeless and

using methamphetamine.

D.F. was adjudicated a child in need of assistance and formally removed

from the parents’ care in March 2019. As part of the adjudication order, DHS

was ordered to complete paternity testing on the father.

The social worker’s April report to the court indicated the worker sent a

letter to the father at the out-of-state federal prison where he was incarcerated

and left a message for the father’s corrections counselor. The worker received

no response. The worker called the corrections counselor a second time and

1 All parties presumed the putative father is the biological father of D.F., but it
was never established through paternity testing. For ease, and because there
are no other fathers at issue, we refer to the putative father as the father.
2 The mother’s parental rights were also terminated. She does not appeal.
3 The grandmother died in February.
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was told the father had to complete a release before any information could be

shared. As of the April 24 report date, the worker did not have a signed release

from the father.

In May, D.F.’s placement became unable to care for him, and he was

moved to the same home as his half-sibling, with whom he already had an

established relationship.4

As of the social worker’s July 1 report, the father remained in federal

prison in Minnesota. According to the report:

On 06/21/2019 this worker sent a fax to counselor McColey, [the
father’s] counselor at the prison, with an attachment of the last
court report, and a request for confirmation of [the father’s]
intentions.
On 06/26/2019, this worker received a call from the [father]
regarding the situation. He stated his counselor had received the
fax and contact information. [The father] noted that he was going to
be transferred to South Dakota soon. [He] reported that he has
been in prison since Thanksgiving 2017 for possession of
firearms. . . .
With regards to his relationship with [D.F.], he reported that
he had not had any contact with [him] for about two years. When
questioned about his prior relationship with [D.F.] financially and
otherwise, he stated that he had never paid any child support and
only saw him two or three times after his birth.

The father told the worker he wanted to pursue custody of D.F. after he

discharged his sentence—scheduled to occur sometime in 2020. The worker

encouraged the father to write D.F. letters to initiate a relationship with the child.

4 The half-sibling lives with her father and paternal grandparents. D.F. was
placed in the care of the half-sibling’s paternal grandparents. D.F. and the half-
sibling are related through their mother, so none of the adults in the home are
biologically related to D.F.
4

In the worker’s October report to the court, she noted that father had been

moved to a federal prison in Missouri. The father had not sent any letters to D.F.

and had not otherwise been in contact with the worker.

The family was assigned a new social worker in October, and the new

worker sent the father two letters—one in October and one in November—with

her contact information and a request that the father contact her.

As of the December report to the court, the father had yet to make contact

with the new social worker. She noted he was unresponsive to her letters, and

DHS had not received a signed release from the father.

The day before the scheduled termination hearing in December, the father

filed a motion to continue, claiming DHS failed to provide the only service he

asked for—paternity testing—and indicating he had family who was willing to

take over caring for D.F. if the father was confirmed to be the biological father.

The court took up the motion at the outset of the hearing. The State

resisted, noting the father had participated in each hearing (by telephone), yet

only the adjudication order mentioned the paternity testing. Additionally, the

father had been unresponsive to recent attempts at communication by DHS.

The court denied the motion, stating:

Now, I want to make sure that the parties understand what
this court’s policy is with regard to continuances of [termination]
hearings. If there’s a due process issue where the parties are not
able to properly prepare for or participate in the hearing or do not
have proper notice of that hearing, continuances will be taken very
seriously. If it’s a question of whether reasonable efforts have been
made and whether additional opportunities for reunification should
be afforded, that’s an evidentiary issue and ultimately goes to the
question of whether termination of parental rights should be granted
or not. So the Court is very reluctant, if ever, going to be granting
continuances under those circumstances.
5

The State has a right to present its petition and evidence,
and whether the State has provided reasonable efforts or not goes
to whether it should be granted or not, not whether the hearing itself
should be continued. For those reasons the Court denies the
request for the continuance.
If there is a previous order that requires that paternity testing
be done, whether this court grants the termination or not or whether
it’s taken under advisement or not, ultimately that can still be
pursued while these matters are pending or—I doubt that the court
is going to enter a bench order at the conclusion of testimony
today, so that can still be pursued following today’s hearing without
delaying what is in this child’s best interest.

The new social worker testified that paternity testing was not set up for the

father because he had not signed a release. She testified she called the

Missouri prison one or two times and left a message, but she had not received a

return call from anyone.

Two members of the father’s family testified; each stated they would be

willing to take care of D.F. if it was confirmed the father was biologically related to

him. Neither family member had ever met D.F.

D.F.’s caretaker, his half-sibling’s paternal grandmother, testified about the

strength and closeness of the relationship D.F. and his half-sibling share. She

testified she intended to adopt D.F. and make him part of their family

permanently.

In its ruling, the juvenile court generally found “that reasonable efforts

have been made to achieve the primary permanency goal for the child in interest”

but did not specifically rule regarding any issues with the paternity testing. In

determining the father had abandoned or deserted D.F., the court found

The evidence presented establishes that [the father] does not have
a relationship with [D.F.] He has only met [the child] two or three
times during [D.F.’s] life. He has never cared for [D.F.] nor has he
provided any financial support for [him]. Although encouraged to
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do so, [the father] has not attempted to foster a relationship with
[D.F.]

The court terminated pursuant to section 232.116(1)(b) and (e).

The father appeals.

II. Standard of Review.

We review termination proceedings de novo. In re L.T., 924 N.W.2d 521,

526 (Iowa 2019).

III. Discussion.

The father argues his parental rights should not be terminated because

DHS did not complete the court-ordered paternity testing on the father, which is

the only service the father requested. We understand this to be a challenge

regarding reasonable efforts. But Iowa Code section 232.116(1)(b)—one of the

grounds cited by the juvenile court for termination—does not include a

reasonable-efforts requirement.5 See In re C.B., 611 N.W.2d 489, 492 (Iowa

2000) (recognizing certain grounds for termination “contain a common element

which implicates the reasonable effort requirement”); In re B.P., No. 19-0870,

2019 WL 4298047, at *1 (Iowa Ct. App. Sept. 11, 2019) (“Under [section

232.116(1)(b)], reasonable efforts to reunify the parent with the child are not

required.”).

5 We do not suggest either the juvenile court or DHS should avoid paternity
testing. See In re R.C., No. 19-2064, 2020 WL 1550686, at * 3–4 (Iowa Ct. App.
Apr. 1, 2020). And here, we believe the record establishes that the failure to
complete testing was the result of the father’s failure to sign releases and stay in
contact with DHS. Additionally, the father was presumed to be the biological
father; he was appointed counsel, received notice, and participated in each
hearing throughout the proceedings.
7

Section 232.116(1)(b) allows the juvenile court to terminate when “[t]he

court finds that there is clear and convincing evidence that the child has been

abandoned or deserted.” Desertion is defined as “the relinquishment or

surrender for a period in excess of six months of the parental rights, duties, or

privileges inherent in the parent-child relationship.” Iowa Code § 232.2(14).

“Proof of desertion need not include the intention to desert, but is evidenced by

the lack of attempted contact with the child or by only incidental contact with the

child.” Id. It is undisputed the father had no contact with D.F. during the two to

three years he was incarcerated leading up to the termination proceeding. The

father was encouraged to write letters to D.F. but failed to do so. He never

provided for D.F. financially—even before the father’s incarceration. The father

deserted D.F., and termination under section 232.116(1)(b) is appropriate.

Next, the father argues termination of his rights is not in D.F.’s best

interests because D.F. will lose “a whole side of family to support him.” In

considering the best interests of the child, we are required to “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); In re P.L., 778

N.W.2d 33, 37 (Iowa 2010) (rejecting the court’s use of “its own unstructured

best-interest test”). D.F. has never met the members of the father’s family who

expressed an interest in caring for him if paternity testing established a biological

relationship between D.F. and the father. In contrast, at the time of the

termination hearing, D.F. was living with his half-sibling, whom he had known his

entire life. The people caring for him—biological relatives of the half-sibling—
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were well-known to D.F. and intended to make him part of their family

permanently. See Iowa Code § 232.116(2)(b) (providing as part of the best-

interests analysis whether the placement family “is able and willing to

permanently integrate the child into the foster family”). Termination of the

father’s rights is in D.F.’s best interests.

We affirm the termination of the father’s parental rights.

AFFIRMED.