In the Interest of D.L.-s., Minor Child, B.S., Father

IN THE COURT OF APPEALS OF IOWA

No. 14-1503
Filed November 13, 2014

IN THE INTEREST OF D.L.-S.,
Minor Child,

B.S., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld,

District Associate Judge.

The father appeals the termination of his parental rights to his daughter,

D.L.-S. AFFIRMED.

Amy R. Dollash of the State Public Defender’s Office, Cedar Rapids, for

appellant father.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant

Attorney General, Jerry Vander Sanden, County Attorney, and Lance Heeren,

Assistant County Attorney, for appellee State.

Julie Trachta, Cedar Rapids, attorney and guardian ad litem for minor

child.

Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
2

VOGEL, P.J.

The father appeals the termination of his parental rights to his daughter,

D.L.-S. He asserts the State did not prove his rights should be terminated

pursuant to Iowa Code section 232.116(1)(h) and (l) (2013), and he should be

granted an additional three to six months to work towards reunification. We

conclude the State proved by clear and convincing evidence the father’s rights

should be terminated under paragraph (h). Furthermore, granting the father

additional time to work toward reunification is not in D.L.-S.’s best interest, given

that she is an infant and is in need of permanency, in addition to the fact the

father has shown only minimal progress throughout the past year. Consequently,

we affirm the order of the juvenile court terminating the father’s parental rights.

D.L.-S., born August 2013, first came to the attention of the Department of

Human Services (DHS) a month after she was born due to domestic violence

between the mother and father in the home. Prior to D.L.-S.’s birth, it was

reported the father punched the mother in the stomach. Then, on three separate

occasions within a two week period, authorities were contacted because of

various domestic violence issues. D.L.-S. was removed from the home on

September 20, 2013, and was adjudicated a child in need of assistance on

October 1. D.L.-S. was placed in foster care, where she remained at the time of

the termination hearing.1 She has never been returned to either parent’s care.

The mother and father have a fraught relationship. In addition to the

domestic violence issues, there have been several no contact orders put in place

throughout the pendency of the proceeding, all of which have either been
1
The foster home has adopted D.L.-S.’s half-sister—to whom the mother’s parental
rights were terminated in 2011—and the juvenile court noted the sisters are bonded.
3

violated or voluntarily revoked. There is conflicting evidence regarding whether

they were together at the time of the termination hearing—the mother informed

the DHS workers they were together, and they had in fact married, but the father

testified he was no longer with the mother and had no intention of resuming their

relationship. However, the mother is pregnant and contends D.L.-S.’s father is

also the father of the unborn child, though D.L.-S’s father testified he was not

sure he was the father of the unborn child. Additionally, DHS workers

consistently noted that, instead of focusing on D.L.-S. during the supervised visits

and family team meetings, the parents would focus on each other and issues in

their relationship. All parties agree the relationship between the mother and

father is toxic.2

The father was granted fully supervised visits two to three times each

week, and his attendance was fairly consistent. In June 2014, the DHS workers

determined he had made enough progress to begin semi-supervised visits.

However, prior to those visits being initiated, the father brought a seventeen-

year-old woman with him to one of the visits. When informed this was not pre-

approved or appropriate behavior, he stated he was pressured into bringing her,

though at the termination hearing the DHS worker speculated the father brought

this other woman to make the mother jealous. Because of this infraction, in

addition to the father’s unwillingness to recognize how he was at fault and the

possible impact his actions had on D.L.-S., he never progressed to anything

beyond fully supervised visits. However, the father has progressed in his ability

2
The mother and father were on a nationally syndicated television show called The Test.
At the termination hearing, the DHS worker testified she observed the father attempting
to choke the mother, though the parents indicated this was scripted.
4

to parent D.L.-S. He is now able to take care of the infant’s immediate needs,

such as changing diapers, and has demonstrated a commitment to learning how

to parent by reading and taking notes on various parenting books. The DHS

workers did note, though, that when D.L.-S. becomes fussy, the father does not

act appropriately and hands her to another person or puts her in her crib while he

leaves for his own “time-out.”

The father also has a long history of substance abuse and criminal

activity. He has been using marijuana and alcohol since he was seventeen, and

he has reported he has never been sober for more than three months. At the

termination hearing, the DHS worker testified that, during one of the supervised

visits in January 2014, she smelled marijuana and believed the father was under

the influence while interacting with D.L.-S. Through he successfully completed

outpatient substance abuse treatment at the Area Substance Abuse Council, he

tested positive for THC during treatment.3 He last tested positive on January 21,

2014, and testified he has remained sober since that time. The mother has

stated she has given the father money to purchase marijuana on two separate

occasions since the removal of D.L.-S.

With regard to the father’s criminal history, he was granted a deferred

judgment on a charge of burglary in the third degree on June 3, 2013. However,

on January 23, 2014, he was confined to the Lary Nelson Center due to his

failure to follow the terms and conditions of his probation. He violated these

terms by providing positive drug screens, missing urinalysis tests, receiving an

3
The father testified he remained sober throughout treatment; however, the juvenile
court noted the father had not abstained from substance abuse during treatment, basing
this assessment in part on its finding the father was not credible.
5

obstruction of justice charge for interfering with a 911 call from the mother,4 and

failing to get approval from his probation officer to move back in with the mother.

At the time of the termination hearing the father was still residing in the center,

though the juvenile court noted the father would likely move in with his mother

following his release in the middle of July 2014.5 He also spent some time in jail

for failing to follow the rules at the Lary Nelson Center. To his credit, he is

currently employed at a bread distribution company, working forty-five to sixty

hours per week and earning $10 per hour.

The following services were offered to the father during the pendency of

this proceeding: post-removal conferences; family safety, risk, and permanency

services; supervision and services through DHS as well as the Department of

Corrections; paternity testing; individual counseling; family team meetings;

domestic violence counseling; substance abuse evaluation and treatment; drug

testing; mental health evaluations; and supervised visitation.

On March 10, 2014, the State petitioned to terminate the parental rights of

the mother and father. The mother consented to termination but the father

contested the State’s petition. A termination hearing was held on June 30, 2014,

and on August 20, 2014, the juvenile court entered an order terminating the

mother’s parental rights pursuant to Iowa Code section 232.116(1)(a) and the

4
This charge occurred in November 2013, though no conviction ever resulted.
5
In his appellate brief the father states he was released on August 21, 2014, and he is
currently living with his mother; however, these are untested assertions outside of the
record, which we may not consider. See In re M.M., 483 N.W.2d 812, 814 (Iowa 1992).
6

father’s parental rights pursuant to Iowa Code section 232.116(1)(h) and (l).6

The father appeals.

We review termination proceedings de novo. In re S.R., 600 N.W.2d 63,

64 (Iowa Ct. App. 1999). The grounds for termination must be proved by clear

and convincing evidence. Id. Our primary concern is the child’s best interest. Id.

When the juvenile court terminates parental rights on more than one statutory

ground, we only need find grounds to terminate under one of the sections cited

by the juvenile court to affirm. Id.

Given that the record demonstrates D.L.-S. cannot be returned to the

father’s care, the State proved by clear and convincing evidence the father’s

rights should be terminated pursuant to paragraph (h). As the juvenile court

noted:

It is hoped that at some future date [the father] will gain the
maturity, insight and judgment that will allow him to safely parent a
child, but today is not that day. He verbalizes his acceptance of the
responsibility for his actions, but his actions speak louder than
those words. To return a child [D.L.-S.’s] age that cannot self-
protect to the father’s home would subject her to multiple
adjudicatory harms including lack of adequate supervision, physical
and emotional harm, placing her at imminent risk of harm to her
health and safety.

Though given access to many resources, the father has not demonstrated an

ability to parent D.L.-S. safely. In determining the future actions of the parent, his

past conduct is instructive. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). While

he has made some improvement in how he responds to D.L.-S.’s needs, such as

6
To terminate parental rights under paragraph (h), the State must prove by clear and
convincing evidence the child is three years of age or younger, has been adjudicated
CINA, removed from the home for six of the last twelve months, and cannot be returned
home. To terminate under paragraph (l), the State must show the child has been
adjudicated CINA, the parent has an ongoing substance abuse problem, and the child
cannot be returned to the parent within a reasonable time.
7

being able to feed her or change her diaper, he still has not demonstrated a clear

commitment to parenting D.L.-S. full-time. It is therefore evident D.L.-S. cannot

be returned to his care.

Additionally, we do not agree with the father’s assertion that granting him

an additional three to six months to work towards reunification is in D.L.-S.’s best

interest. As the DHS worker testified:

[M]y professional opinion is [the father] cannot have safe
reunification with [D.L.-S.] in the next six months, I question
whether he would be able to after that as well. [The father] just has
not demonstrated any consistency in this case. He’s demonstrated
a lot of lip service and insight into what he needs to do, but the only
time that [the father] has demonstrated change is when he has the
Lary Nelson Center giving him that highly-structured supervision.

The record supports the DHS worker’s testimony. The father has been

given a year to work towards reunification, but he has failed to progress to even

semi-supervised visits. We agree that, based on the various DHS reports as well

as the testimony presented at the termination hearing, there is a bond between

the father and D.L.-S. However, “[w]e have repeatedly followed the principle that

the statutory time line must be followed and children should not be forced to wait

for their parent to grow up.” In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App.

1998); see also Iowa Code § 232.116(2). There is no evidence the father would

make any more use of an additional few months than he has made of the past

year, and it is imperative that D.L.-S. obtain stability and permanency in her life,

particularly given her young age. Consequently, we conclude termination of the

father’s parental rights is in D.L.-S.’s best interest, and we affirm the order of the

juvenile court.

AFFIRMED.