In the Interest of A.B. and J.S., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 22-1109
Filed August 31, 2022

IN THE INTEREST OF A.B. and J.S.,
Minor Children,

U.B., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Lynn Poschner, District

Associate Judge.

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

Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, for appellant

father.

Thomas J. Miller, Attorney General, and Diane Murphy Smith, Assistant

Attorney General, for appellee State.

Judy Johnson of JDJ Law Firm PLLC, Des Moines, attorney and guardian

ad litem for minor children.

Considered by Bower, C.J., and Tabor and Greer, JJ.
2

BOWER, Chief Judge.

A.B., born in September 2019, and J.S., born in March 2021, came to the

attention of the Iowa Department of Human Services (DHS) in June 2021 after

their half-sibling, Z.B., was taken to the hospital and found to have six new rib

fractures, several healing rib fractures, a subdural hematoma, a liver contusion,

and healing leg fractures. A DHS child-abuse assessment was founded listing the

father as the perpetrator. The mother of A.B. and J.S. and the mother of their half-

sibling both alleged the father was violent with them. The mother of A.B. and J.S.

obtained a domestic-abuse protective order on September 1, 2021.

On October 14, the children were adjudicated children in need of assistance

(CINA) pursuant to Iowa Code section 232.2(6)(b) and (6)(c)(2) (2021). In

removing the children from the father’s custody, the court found:

Z.B.’s life was placed at risk by the care he received with his
parents. Given the evidence as a whole the court finds that at this
time that [A.B.] and [J.S.] are safe in [their mother’s] custody, with
supervision from DHS and juvenile court. [The father’s] ongoing
contact with [A.B.] and with [the mother] places [A.B.] and [J.S.] at
risk of harm.[1] It is not known if the parents will respect and follow
the no contact order.

A November 16 dispositional order noted the father was in jail due to a

probation violation and A.B.’s therapist had expressed concern about the child’s

contact with the father. The juvenile court granted concurrent jurisdiction to allow

the district court to hear custody and visitation issues.

On April 5, 2022, a petition to terminate the father’s rights was filed.2

1 There was a custodial order that provided the father with visitation with A.B. The
father denied paternity of J.S.
2 In separate juvenile court proceedings, the father’s rights to Z.B.—just one week

older than J.S.—were terminated. The father maintained he was not responsible
3

After a hearing, a May 9 dispositional review order provided:

The children shall remain out of their father’s custody.
Placement outside their father’s home is necessary because
continued placement in or a return to their father’s home would be
contrary to the children’s welfare due to [the father]’s current
incarceration, violation of probation orders including an order to
attend inpatient treatment . . . , violation of no contact order, and
failure to address the issues that led to removal and adjudication.

On May 20, a combined permanency and termination of parental rights

hearing was held. On June 16, the juvenile court terminated the father’s parental

rights to A.B. and J.S. pursuant to Iowa Code section 232.116(1)(b), (d), and (h)

(2022).3

The father appeals, contending there is not clear and convincing evidence

on any ground for termination. He also asserts termination is not in the children’s

best interests and is not necessary because the children are in the custody of a

relative. We review of termination-of-parental-rights proceedings de novo. See In

re M.W., 876 N.W.2d 212, 219 (Iowa 2016).

Ground for termination. We use a three-step analysis to review termination

of parental rights. Id. In the first step, we determine if any ground for termination

exists. Id. “[W]e may affirm the juvenile court’s termination order on any ground

that we find supported by clear and convincing evidence.” In re D.W., 791 N.W.2d

703, 707 (Iowa 2010). “Section 232.116(1)(h) provides that termination may be

ordered when there is clear and convincing evidence that a child under the age of

three who has been adjudicated a CINA and removed from the parent[’s] care for

for the child’s injuries but was one of three people in whose care the child had
been.
3The State also sought termination under section 232.116(1)(i), but the court found

that ground had not been proved.
4

at least the last six consecutive months cannot be returned to the parent[’s]

custody at the time of the termination hearing.” Id. The father concedes the

children are under the age of three, have been adjudicated CINA, and have been

out of his custody for the last six consecutive months. The father’s own testimony

proves the children could not be returned to him at the time of the termination

hearing because he had just arrived at Oakdale Classification Center to begin a

six-and-one-half-year indeterminate term of imprisonment. He testified:

Q. Can you acknowledge that as we sit here today, you are
not able to resume custody of [your children]? A. Yes.
Q. Do you acknowledge that it’s going to be several months
until you’re in a place to be able to resume custody of your children?
A. Yes.
Q. Do you think that there’s any work that you need to do to
get some stability for yourself before you’d be able to parent these
two small children? A. Yes.

A ground for termination thus exists.

Best-interest framework. We next “apply the best-interest framework set

out in section 232.116(2) to decide if the grounds for termination should result in a

termination of parental rights.” Id. at 707. We “give primary consideration to the

child[ren]’s safety, to the best placement for furthering the long-term nurturing and

growth of the child[ren], and to the physical, mental, and emotional condition and

needs of the child[ren].” Iowa Code § 232.116(2).

The father denies any accountability for the children’s out-of-home

placement, though he acknowledges his use of marijuana has led to substantial

disruption in their lives. It is clear the father has spent a considerable amount of

time out of the community, which has deprived him of the ability to take advantage

of the services offered to him. He admits he must work on stability in his life before
5

he can safely parent children. But “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.” In re P.L., 778 N.W.2d 33, 41 (Iowa 2010). “[O]ur legislature has

carefully constructed a time frame to provide a balance between the parent’s

efforts and the child’s long-term best interests. We do not ‘gamble with the

children’s future’ by asking them to continuously wait for a stable biological parent,

particularly at such tender ages.” D.W., 791 N.W.2d at 707 (internal citations

omitted).

Permissive exceptions. Finally, “if the statutory best-interest framework

supports termination of parental rights, [we] must consider if any statutory

exceptions set out in section 232.116(3) should serve to preclude termination of

parental rights.” Id.

The father asserts he and A.B. had a strong bond before he was

incarcerated and, because the children remain in the custody of their mother,

termination of his parental rights is not necessary. The father notes he is only

twenty-one years old and has been nervous and scared while parenting. He

concedes any bond he had with A.B. has been weakened by his absence and

acknowledges he has no bond with J.S.4 He states he intends to take advantage

of parenting classes and substance-abuse treatment available to him in the

correctional system: “I want to have an actual chance to be in the community and

take the classes that you guys want me to take.”

4The father he acknowledged missing “a chunk of [his daughter’s] life,” but he
believed she still knew who he was.
6

We hope for the father’s sake he does take advantage of whatever

programming may be available to him to improve his stability and chance of

success when he is discharged. Section 232.116(3)(a) authorizes the juvenile

court to forego termination when “a relative has legal custody of the child.” The

exceptions are “permissive, not mandatory,” In re A.S., 906 N.W.2d 467, 475 (Iowa

2018), and we find it should not be applied here. We affirm the termination of the

father’s parental rights to A.B. and J.S.

AFFIRMED.