In the Interest of E.W., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 23-0178
Filed April 26, 2023

IN THE INTEREST OF E.W.,
Minor Child,

K.H., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Winneshiek County,

Linnea M.N. Nicol, District Associate Judge.

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

Kevin Stinn of Swartz Law Firm, PLLC, Waukon, for appellant father.

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

General, for appellee State.

Kristin R. Schiller Herman, Calmar, attorney and guardian ad litem for minor

child.

Considered by Tabor, P.J., and Schumacher and Ahlers, JJ.
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SCHUMACHER, Judge.

A father appeals the termination of his parental rights. He claims the State

did not establish a ground for termination, that termination is not in the child’s best

interests, and that the court should have applied an exception to termination due

to his bond with the child. He also asks for a six-month extension for reunification

efforts, and contends the Iowa Department of Health and Human Services (HHS)

failed to make reasonable efforts. We conclude the State established a ground for

termination and that termination of the father’s parental rights is in the child’s best

interests. We decline to apply an exception or grant a six-month extension. And

we conclude the father did not preserve his claim pertaining to reasonable efforts

and, even if he had, the claim lacks merit. We affirm.

I. Background Facts and Proceedings

E.W., who was born in March 2021, her two siblings, and her mother came

to HHS attention in early 2021 because of concerns over the mother’s substance

abuse.1 At the time E.W. was born, she tested positive for THC and Tramadol.

The mother was arrested in June after she was found with methamphetamine and

drug paraphernalia in the car with E.W. and another child. E.W. and the other

children were removed from the mother’s custody and subsequently adjudicated

as in need of assistance under Iowa Code section 232.2(6)(c)(2) (2021). Since

then, the siblings have resided together albeit at several different foster care

placements. They currently live with a foster family where they have resided since

1The three siblings each have a different father. The mother and two other fathers
had their parental rights terminated in these proceedings but do not appeal.
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June 2022. The children appear to be doing well in that placement, which has

expressed interest in adopting all three children.

Despite being informed by the mother that he was the father of E.W. early

on in the mother’s pregnancy, the father failed to undertake court-ordered paternity

testing until he was arrested in March 2022 on drug-related charges. That testing

confirmed he was the biological father of E.W. During the period leading up to his

arrest, the father reported daily use of methamphetamine. At the time of the

termination hearing, having violated his probation, the father was placed on the

corrections continuum to include placement at a residential treatment facility “for

one year or until maximum benefits are reached.” It is unclear when he will be

discharged from that facility. The father also had pending charges for operating

while intoxicated, third offense; possession of methamphetamine; possession of a

controlled substance, alprazolam; and unlawful possession of a prescription drug.

The father’s involvement in services has been very limited. He has only

attended three visits with E.W., which occurred in July and August 2022. He failed

to attend ten other visits offered in September and October, tracking a long history

of his lack of communication with HHS and lack of participation in services.

The State moved to terminate the father’s parental rights on

August 23, 2022. Following a hearing, the court terminated the father’s parental

rights under Iowa Code section 232.116(1)(e) and (f) (2022). The father appeals.

II. Standard of Review

We review the termination of parental rights de novo. In re P.L., 778 N.W.2d

33, 40 (Iowa 2010). As always, the child’s best interests remain “the first and

governing consideration” of this court. Iowa R. App. P. 6.904(3)(o).
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III. Discussion

The father raises several claims on appeal. He contends the State did not

establish a ground for termination. He asserts termination is not in the child’s best

interests due to his close bond with E.W. He also requests a six-month extension.

Finally, he claims HHS did not make reasonable efforts for reunification,

highlighting the lack of visits between himself and E.W.

A. Ground for Termination

The juvenile court terminated the father’s parental rights under Iowa Code

section 232.116(e) and (f). However, the termination petition, as amended, sought

to terminate the father’s parental rights under section 232.116(e), (h), and (l)—not

(f).2 The only substantive difference between (f) and (h) is the age of the child—

(h) being used for children three years old or younger, and (f) for children four

years or older. Our supreme court addressed a similar issue in In re M.W., 876

N.W.2d 212 (2016). The supreme court affirmed the termination of parental rights

on a ground raised by the State in its termination petition but which was omitted

from the juvenile court’s ruling. M.W., 876 N.W.2d at 221. Following the holding

of M.W., we consider (h) as a ground for termination in this appeal.

On appeal, the father only challenges the court’s findings as to (e). “When

a juvenile court terminates parental rights on more than one statutory ground, we

may affirm the juvenile court’s order on any ground we find supported by the

2 The father did not raise this error to the district court and does not challenge it on
appeal. We also note the district court cited the correct statutory ground
throughout the body of the order and in the decree portion with respect to the
mother’s parental rights, which points to the use of 232.116(1)(f) as a typographical
error. But as noted, the father does not challenge this ground.
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record.” In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). Because the father does

not challenge the court’s findings under (f)—and by extension, (h)—we affirm as

to (h).3 See P.L., 778 N.W.2d at 40 (noting that when a parent does not dispute

the existence of a ground to terminate, we may affirm on those grounds). Even if

the father had contested this ground, on our de novo review, we determine the

State proved by clear and convincing evidence all the elements of the statutory

ground found in Iowa Code section 232.116(1)(h). E.W. is under the age of three,

she has been adjudicated a child in need of assistance, removed from parental

custody for at least the last six consecutive months, and could not be safely

returned home at the time of the termination hearing.

B. Best Interest of the Child and Statutory Exception

The father asserts termination is not in the child’s best interests. He claims

the State never introduced evidence suggesting he was an unsafe parent. “In

considering whether to terminate the rights of a parent under this section, 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 emotional condition and needs of the child.” Iowa Code § 232.116(2).

Upon our de novo review, we determine the termination is in the best

interests of E.W. It is true that in the three visits the father had with E.W., the

service provider did not note any safety concerns. But at the time of termination

the father was residing in a correctional facility. He did not have stable housing or

employment. While he claims to have been sober since March 2022, that only

3 Indeed, in the father’s closing argument to the juvenile court, the father conceded
that (h) “can likely be met.”
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occurred due to his imprisonment. There is no evidence he will be able to maintain

his sobriety upon his release. And he has only met the child three times. He

showed no interest in the child until paternity was established in March 2022—also

when he was imprisoned. The child is integrated into the foster family, recognizing

the foster family as her parents. See id. § 232.116(2). And the HHS caseworker

testified that it would be unlikely for the father to adopt E.W.’s siblings due to his

prior involvements in termination proceedings. As a result, declining to terminate

would require the siblings to be separated. See id. § 232.108(1) (explaining a

preference to keep siblings together). Termination is in E.W.’s best interests.

The father also claims the juvenile court should have declined to terminate

his parental rights because of the close bond he shares with the child. See id. §

232.116(3)(c). But the father has only met the child three times, and waited late in

the game to do so. After those three visits, he missed the next ten opportunities

to see the child leading up to the termination hearing. Given such limited contact

and the child’s young age, we cannot say termination of the father’s parental rights

would be detrimental to E.W.

C. Six-Month Extension

The father asks for a six-month extension for reunification efforts. A juvenile

court may decline to terminate parental rights and instead provide the parent a six-

month extension. See id. § 232.104(2)(b). To do so, the court must “enumerate

the specific factors, conditions, or expected behavioral changes which comprise

the basis for the determination that the need for removal of the child from the child’s

home will no longer exist at the end of the additional six-month period.” Id.
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Little suggests the need for removal will be rectified with an additional six

months. The father waited until he was imprisoned to comply with the court’s order

for paternity testing, and even then, only met E.W. three times in July and August

2022. He has not engaged in services, for reasons as simple as over-sleeping.

He currently resides in a correctional facility—the record does not indicate when

he will be released. Because the record does not support that the need for E.W.’s

removal will be rectified in six months, we determine the juvenile court properly

declined to grant a six-month extension.

D. Reasonable Efforts

The father claims HHS failed to make reasonable efforts to reunify the

family. In particular, he highlights the lack of visits between himself and E.W.,

blaming HHS for failing to coordinate visits and ensure he had transportation to

attend them. HHS has an obligation to provide reasonable efforts to reunify the

family. See id. § 232.102A(1)(a) (defining reasonable efforts). The need to make

reasonable efforts “covers both the efforts to prevent and eliminate the need for

removal,” and may include “visitation designed to facilitate reunification.” In re

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

The father’s claim fails for two reasons. First, error was not preserved on

this issue. It is not enough to discuss an issue with HHS. Instead,

[w]hile the State has an obligation to provide reasonable services to
preserve the family unit, it is the parent’s responsibility “to demand
other, different, or additional services prior to the termination
hearing.” Complaints regarding services are properly raised “at
removal, when the case permanency plan is entered, or at later
review hearings.” Where a parent “fails to request other services at
the proper time, the parent waives the issue and may not later
challenge it at the termination proceeding.” Similarly, we will not
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review a reasonable efforts claim unless it is raised prior to the
termination hearing.

In re T.S., 868 N.W.2d 425, 442 (Iowa Ct. App. 2015) (internal citations omitted).

The father did not raise a challenge to the lack of reasonable efforts to the juvenile

court prior to the termination hearing. The father admits such in his briefing. And

the juvenile court found reasonable efforts had been provided by HHS in each

review order and permanency order. As a result, the matter is not preserved.

Second, the fault for the limited number of visits lies with the father. Service

providers testified that they attempted to contact the father numerous times to

establish visitation and other services, but the father would not respond. As

previously noted, the father was offered ten visits in September and October, but

failed to attend a single one. HHS has an obligation to offer reasonable services.

After that, it is incumbent upon the parent to utilize them. The father declined to

utilize the offered services. We affirm the juvenile court.

AFFIRMED.