In the Interest of K.W., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 24-1242
Filed December 4, 2024

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

D.W., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Brent Pattison, Judge.

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

Leah Patton of Patton Legal Services, LLC, Ames, for appellant father.

Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney

General, for appellee State.

ConGarry Williams, Des Moines, attorney and guardian ad litem for minor

child.

Considered by Ahlers, P.J., Sandy, J., and Potterfield, S.J.*

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

(2024).
2

POTTERFIELD, Senior Judge.

The juvenile court terminated the father’s parental rights to K.W., born in

2020, pursuant to Iowa Code section 232.116(1)(f) and (l) (2024).1 The father

appeals, arguing (1) the State did not prove the statutory grounds for termination,

in part because the reduction of visitation in the two months leading up to the

termination trial constitutes a failure to make reasonable efforts to reunify; (2) the

loss of his rights is not in K.W.’s best interests; (3) multiple permissive factors in

section 232.116(3) preclude termination; and (4) alternatively, the juvenile court

should have established a guardianship in the paternal grandmother instead of

terminating his rights.

We review the termination of parental rights de novo. In re A.M., 843

N.W.2d 100, 110 (Iowa 2014). “We are not bound by the juvenile court’s findings

of fact, but we do give them weight, especially in assessing the credibility of

witnesses.” Id. (citation omitted).

When the juvenile court terminates a parent’s rights on more than one

statutory ground, we may affirm on any ground we find supported by the record.

In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). Here, we choose to review

termination under section 232.116(1)(f), which allows the juvenile court to

terminate parental rights when it finds by clear and convincing evidence that all the

following are met:

(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.

1 While the State petitioned to terminate both the mother’s and the father’s parental

rights, after the termination trial, the juvenile court gave the mother six more
months to work toward reunification.
3

(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.

The father challenges only the fourth element—whether K.W. could be returned to

his custody at the time of the termination trial in July 2024. See A.M., 743 N.W.2d

at 111 (interpreting “at the present time” to mean at the time of the termination

trial). As part of this challenge, the father argues the State failed to make

reasonable efforts to return K.W. to his custody. See In re C.B., 611 N.W.2d 489,

493 (Iowa 2000) (“[T]he reasonable efforts requirement is not viewed as a strict

substantive requirement of termination. . . . [Instead, t]he State must show

reasonable efforts as a part of its ultimate proof the child cannot be safely returned

to the care of a parent.”).

As the juvenile court noted in its order ruling on the father’s motion to

amend, enlarge, or reconsider the termination order, “no motion for reasonable

efforts was filed by the father at any point during the length of this case. The issue

was not raised by the father until closing argument at the [termination] hearing.”

We recognize that the father’s reasonable-efforts complaint is limited to the

reduction of visitation and the lack of in-person visits in the last two months before

the termination trial—he could not have raised the issue before then. Cf. In re T.S.,

868 N.W.2d 425, 442 (Iowa Ct. App. 2015) (“Complaints regarding services are

properly raised ‘at removal, when the case permanency plan is entered, or at later

review hearing.’” (citation omitted)). But “the parent has a responsibility to object

when appropriate changes can [still] be made.” In re G.C., No. 21-1781, 2022 WL
4

246270, at *3 (Iowa Ct. App. Jan. 27, 2022) (citing In re L.M., 904 N.W.2d 835,

839–40 (Iowa 2017)). Waiting until closing arguments on the second day of a two-

day termination trial is too late. See T.S., 868 N.W.2d at 442 (“[W]e will not review

a reasonable efforts claim unless it is raised prior to the termination hearing.”).

This issue is not preserved for our review.

Still, we consider whether the State proved K.W. could not be returned to

the father’s custody at the time of the termination trial. As the father seemed to

recognize in his testimony he was not able to take custody of K.W. in July 2024.

The father would not disclose where he lived to the Iowa Department of Health and

Human Services or the court. Although he admitted using methamphetamine and

tested positive for methamphetamine during the course of the proceedings, he did

not obtain a substance-use evaluation or participate in treatment. When K.W. was

formally removed from the parents’ care this time2—in April 2023—the father was

incarcerated following a conviction for domestic violence, with the mother as the

victim. Yet the father did not participate in any therapy or classes meant to address

the issue. He also did not obtain a mental-health evaluation or otherwise

participate in therapy. The father attended visits with K.W., but he did not engage

in any other services that were necessary for reunification. K.W. could not be

safely returned to the father’s custody, so the State proved the ground for

termination pursuant to section 232.116(1)(f). See A.M., 843 N.W.2d at 102.

2 K.W. was previously adjudicated a child in need of assistance and removed from

parental custody for about fourteen months before the case was closed—all before
K.W.’s second birthday. In that case, domestic violence and parental drug use
were the main concerns.
5

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

interests. See Iowa Code § 232.116(2). The father points to his bond with the

child and their positive interactions at visits to support his argument. But “[a] child’s

safety and the need for a permanent home are our primary concerns when

determining a child’s best interests,” and the father is not able to provide those

things. In re J.E., 723 N.W.2d 793, 801 (Iowa 2006) (Cady., J. concurring

specially). And he does not ask for more time to be in a better position to provide

those things. Termination of the father’s parental rights is in the child’s best

interests.

The father argues two permissive factors preclude termination—

section 232.116(3)(a) and (c), which allow the court to forego termination when

either “[a] relative has legal custody of the child” or “termination would be

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

relationship.” As the juvenile court recognized, K.W. was not in the legal custody

of a relative; he was in the custody of the department while placed with a relative.

So section 232.116(3)(a) is inapplicable. See In re A.B., 956 N.W.2d 162, 170

(Iowa 2021). And the father failed to prove that termination would be detrimental

to K.W. based on the closeness of their relationship. See In re A.S., 906 N.W.2d

467, 476 (Iowa 2018) (holding the parent resisting termination bears the burden to

establish a permissive factor under section 232.116(3)).

Finally, the father argues the juvenile court should have established a

guardianship in the paternal grandmother in lieu of terminating his parental rights.

See Iowa Code § 232.117(5) (allowing the court, after a termination trial, to not

order the termination of parental rights but instead enter an order pursuant to
6

section 232.104); see also id. § 232.104(2)(d)(2) (allowing the court to transfer

guardianship of the child to an adult relative). The juvenile court considered this

request, noting that while the paternal grandmother was K.W.’s caretaker during

the first child-in-need-of-assistance case, K.W. had been living with the maternal

grandmother for more than a year at the time of the termination trial. Moving K.W.

from one home to another while the mother continued to work toward reunification

is not in K.W.’s best interests. See In re D.S., 806 N.W.2d 458, 465 (Iowa Ct. App.

2011) (“The paramount concern in termination proceedings is the best interests of

the child.”). We agree with the juvenile court; a guardianship in the paternal

grandmother was not in K.W.’s best interests at the time of the termination trial.

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

AFFIRMED.