In the Interest of K.S. and M.S., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 23-0098
Filed April 12, 2023

IN THE INTEREST OF K.S. and M.S.,
Minor Children,

E.S., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Cheryl E. Traum,

District Associate Judge.

A father appeals the termination of his parental rights. AFFIRMED.

G. Brian Weiler, Davenport, for appellant father.

Brenna Bird, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Jean Capdevila, Davenport, attorney and guardian ad litem for minor

children.

Considered by Tabor, P.J., and Schumacher and Ahlers, JJ.
2

SCHUMACHER, Judge.

A father appeals the termination of his parental rights. We find the

termination of the father’s parental rights is supported by clear and convincing

evidence, termination is in the children’s best interests, no exceptions to

termination should be applied, and the Iowa Department of Health and Human

Services (HHS) made reasonable efforts to reunify the family. We affirm the

decision of the district court.

I. Background Facts & Proceedings

E.S. is the father and J.M. is the mother of K.S., born in 2016, and M.S.,

born in 2017.1 The family came to the attention of HHS in September 2020 when

the mother was assaulted by her paramour, A.G., in the presence of the children.2

The children were removed on January 29, 2021, because the mother continued

a relationship with A.G. and left the children with friends. The children were placed

in foster care. The father was not available to care for the children because he

was in prison.

The children were adjudicated to be in need of assistance under Iowa Code

section 232.2(6)(b), (c), (e), (g), and (n) (2020). A review order, dated July 21,

2021, noted the father requested visits with the children while he was at the Newton

Correctional Facility. The court found HHS had engaged in reasonable efforts.

The review order outlined the requirements for the father to have visitation.

1 The mother consented to termination of her parental rights. She does not appeal.
The mother’s parental rights to two other children with a different father were
terminated at the same time as her rights to K.S. and M.S. Those children are not
part of this appeal.
2 In 2018, the family was involved in services based on a founded abuse report for

denial of critical care, lack of proper supervision, and inadequate food.
3

The father has been in prison on a conviction for second-degree robbery

since 2018. He expected to be released in September 2023. He had one or two

visits with the children soon after the CINA case was initiated. He had two or three

more visits when his parents brought the children to visit him. The father asked

HHS for more visits. He wrote some letters to HHS and the children. He also

called the children at the foster home.

On January 6, 2022, the State filed a petition seeking termination of the

parents’ rights. At the termination hearing on May 23, counsel for the father stated:

Your Honor, [E.S.], the father of [K.S.] and [M.S.], is not
consenting. However, he knows that he is in no position to take
custody of his children. His desire is that both children be placed
with his father, [G.S.], who is present. [G.S.] has been present from
the beginning of this case and ready to take custody and care of the
children.

The father had a video visit with the children on the Friday before the hearing,

which was held on a Monday.3

The district court entered an order on June 3 terminating the parents’ rights.

The father’s rights were terminated under section 232.116(1)(b), (d), (e), (f), and

(i) (2022).4 The court found termination was in the children’s best interests, stating,

The parents have been unable to make sufficient progress
throughout the life of this case to work toward reunification. The
parents have been unable to address the many issues that have

3 An Interstate Compact for the Placement of Children (ICPC) home study was
completed on the paternal grandfather, G.S., who lived in Florida. It was denied
because he lived in an adults-only community. The social worker testified the
paternal grandfather recently moved and a new ICPC could be completed. No
issues were raised on appeal relating to the possible placement of the children
with the paternal grandfather.
4 The court found the State failed to establish the statutory requirements for section

232.116(1)(j) but also cited this section as a ground for terminating the father’s
parental rights to K.S. and M.S. We do not consider section 232.116(1)(j) in this
opinion.
4

plagued them during this case and before this case was opened.
The parents’ inability to progress shows they are unlikely to ever
become capable of providing a safe and stable home for these
children.

The court found no statutory exceptions applied under section 232.116(3). The

court also found the State had engaged in reasonable efforts to achieve

permanency.

The father filed a motion for new trial, claiming the State had not engaged

in reasonable services.5 He also requested an extension of time. The State

resisted the father’s motion for a new trial on the ground that the motion was

untimely. A hearing on the motion was held on December 6. The court denied the

motion for a new trial. The father now appeals the termination of his parental rights.

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

concern is the best interests of the children. In re J.S., 846 N.W.2d 36, 40 (Iowa

2014).

In general, we follow a three-step analysis in reviewing the termination of a

parent’s rights. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). We first consider

5 The father also asserted that he received ineffective assistance of counsel and
requested a different attorney. New counsel was appointed for him but he asked
for that attorney to be replaced as well. A third attorney was then appointed for
the father.
5

whether there is a statutory ground for termination of the parent’s rights under

section 232.116(1). Id. Second, we look to whether termination of the parent’s

rights is in the child’s best interests. Id. (citing Iowa Code § 232.116(2)). Third,

we consider whether any of the exceptions to termination in section 232.116(3)

should be applied. Id.

III. Sufficiency of the Evidence

The father claims the State did not present clear and convincing evidence

to support termination of his parental rights. He points out that the children were

not removed due to his conduct and states his parental rights should not be

terminated based on the mother’s conduct. The father also asserts the children

could be returned to his custody within a year when he is released from prison.

“We will uphold an order terminating parental rights where there is clear and

convincing evidence of the statutory grounds for termination.” In re T.S., 868

N.W.2d 425, 434 (Iowa Ct. App. 2015). “When the juvenile court orders

termination of parental rights on more than one statutory ground, we need only find

grounds to terminate on one of the sections to affirm.” Id. at 435. We elect to

focus on the termination of the father’s parental rights under section 232.116(1)(f).6

6 Section 232.116(1)(f) provides that a parent’s rights may be terminated if the
following have occurred:
(1) The child is four years of age or older.
(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 twelve of the last eighteen months, or
for the last twelve consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents
as provided in section 232.102.
6

The children were four years of age or older; K.S. was born in 2016, and

M.S. was born in 2017. See Iowa Code § 232.116(1)(f)(1). There was a CINA

adjudication for them on March 12, 2021. See id. § 232.116(1)(f)(2). They were

removed from parental custody on January 29, 2021, a period of more than twelve

months before the termination hearing held on May 23, 2022. See id.

§ 232.116(1)(f)(3).

Section 232.116(1)(f)(4) requires a showing by clear and convincing

evidence that a child “could not be safely returned to the custody of [the child’s]

parents.” In re S.O., 967 N.W.2d 198, 206 (Iowa 2021). Pursuant to section

232.116(1)(f)(4), a court considers whether a child can be returned to the parent

at the time of the termination hearing. In re A.B., 957 N.W.2d 280, 294 (Iowa

2021). The termination hearing was held on May 23, 2022, and the father did not

expect to be released from prison until September 2023, at the earliest. The

children could not be returned to his custody at the time of the hearing, as the

father acknowledged.

We find all of the criteria for termination under section 232.116(1)(f) were

met and the father’s parental rights could be terminated under this section.

IV. Best Interests

The father contends that termination of his parental rights is not in the

children’s best interests. He states the children remember him and are bonded

with him. In considering the best interests of a child, 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

needs of the child under section 232.116(2).” P.L., 778 N.W.2d at 40. “It is well-
7

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.” Id. at 41.

The district court found termination of the father’s rights was in the children’s

best interests. The court stated:

The parents have failed to address many concerns related to
the children’s safety, stability, and security. Their pattern of refusing
to address these issues indicates they are unlikely to address these
issues in the future. The children will benefit from the long-term
certainty secured by terminating the parents’ parental rights.

At the time of the termination hearing in May 2022, the children had been

out of the parents’ custody for about fifteen months. The father argues it would be

in their best interests to wait another sixteen months, until September 2023, when

he is released from prison so he could be reunited with them. We first note that

the father’s circumstances when he is released are unknown and it is unlikely the

children could immediately be placed in his custody. Also, we find it is not in the

children’s best interests to wait such a long period of time for their father to possibly

be able to care for them. “Children should not be made to suffer indefinitely in

parentless limbo.” In re K.C., 660 N.W.2d 29, 35 (Iowa 2003). “Children simply

cannot wait for responsible parenting.” In re C.H., 652 N.W.2d 144, 151 (Iowa

2002). We find termination of the father’s parental rights is in the children’s best

interests.

V. Exceptions

As part of his best interests argument, the father cites to section

232.116(3)(c), which provides the court may decide not to terminate parental rights

if “[t]here is clear and convincing evidence that the termination would be
8

detrimental to the child at the time due to the closeness of the parent-child

relationship.”

The exceptions to termination found “in section 232.116(3) are permissive,

not mandatory.” In re W.T., 967 N.W.2d 315, 324 (Iowa 2021) (citation omitted).

“The court may exercise its discretion in deciding whether to apply the factors in

section 232.116(3) to save the parent-child relationship based on the unique

circumstances of each case and the best interests of the children.” In re A.R., 932

N.W.2d 588, 591 (Iowa Ct. App. 2019). “[O]nce the State has proven a ground for

termination, the parent resisting termination bears the burden to establish an

exception to termination under Iowa Code section 232.116(3) . . . .” In re A.S., 906

N.W.2d 467, 476 (Iowa 2018). The child’s best interests remain our first

consideration. Id. at 475.

The district court found none of the statutory exceptions found in section

232.116(3) should be applied. We agree with the court’s conclusion. The father

has not met his burden to demonstrate a close relationship between himself and

the children. The father has been in prison since 2018, well before HHS

involvement, and has not been available to care for the children. Also, he has not

shown termination of his parental rights would be detrimental to the children. He

did not present any evidence to show that the children would be disadvantaged by

termination of his parental rights. We find the court properly elected not to apply

the exception found in section 232.116(3)(c).
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VI. Reasonable Efforts

The father claims HHS did not make timely and reasonable efforts to reunite

him with the children.7 He states, “The record shows that the father requested

visits with the children from the start of the case and that [HHS] dragged its feet in

laying the groundwork for visits, eventually providing just one visit, that went well,

immediately prior to the termination hearing.”

“Reasonable efforts are services to ‘preserve and unify a family prior to the

out-of-home placement of a child in foster care or to eliminate the need for removal

of the child or make it possible for the child to safely return to the family’s home.’”

In re L.T., 924 N.W.2d 521, 529 (Iowa 2019) (quoting Iowa Code § 232.102(10)(a)).

The reasonable efforts requirement is not a strict substantive requirement for

termination, but the scope of the efforts offered by HHS impacts the burden of

proving the elements of termination. C.B., 611 N.W.2d at 493 .

The district court found:

The history of this case demonstrates that reasonable efforts
were undertaken to prevent or eliminate the need for removal of the
children from the parental home, that reasonable efforts have been
made to reunify the children with the parents, that reasonable efforts
have been made to achieve permanency, and that failure to
terminate parental rights would be contrary to the welfare of the
children, as the termination of parental rights is the only reasonable
means to establish permanency for the children.

We consider whether the State’s efforts were reasonable under the unique

circumstances of the case. See In re A.D., No. 21-1562, 2022 WL 246227, at *2

(Iowa Ct. App. Jan. 27, 2022); see also In re R.E.J., No. 04-0967, 2004 WL

7The State challenges error preservation on this issue. We elect to reach the
merits of the father’s reasonable-efforts claim.
10

1812814, at *2 (Iowa Ct. App. Aug. 11, 2004) (considering whether the State

provided reasonable efforts to reunite a family under the specific facts of the case).

The services supplied to an incarcerated parent, as with any other parent, are

those services deemed to be reasonable under the circumstances. In re S.J., 620

N.W.2d 522, 525 (Iowa Ct. App. 2000). Our court highlighted the department, in

determining the reasonableness of services, may consider

the age of the children, the bonding the children have or do not have
with their parent, including any existing clinical or other
recommendations concerning visitation, the nature of the parenting
deficiencies, the physical location of the child and the parent, the
limitations of the place of confinement, the services available in the
prison setting, the nature of the offense, and the length of the
parent’s sentence.

Id.

Contrary to the father’s assertion in his petition on appeal, he testified at his

motion for a new trial that he received several visits while he was in prison. Also,

he was able to talk to the children by telephone at the foster parents’ home. In-

person visitation was limited due to Covid restrictions. And, the children, who were

only two and three years old when the case began, would need to be transported

a substantial distance to visit the father. Additionally, the father testified to a visit

where he was separated by glass from the children and could speak to them only

by phone but they were too young to speak back. We find the State’s efforts were

reasonable under the circumstances presented here. And, as noted by the State,

even if the father were to have been provided additional visitation, such does not

alter the statutory element that the children could not be returned to the father’s

custody at the time of the termination hearing.
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We affirm the district court’s decision terminating the father’s parental rights.

AFFIRMED.