In the Interest of B.M., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 22-0751
Filed July 20, 2022

IN THE INTEREST OF B.M.,
Minor Child,

B.M., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Eric J.

Nelson, District Associate Judge.

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

Whitney A. Estwick, Council Bluffs, for appellant father.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Maura C. Goaley, Council Bluffs, attorney and guardian ad litem for minor

child.

Considered by Bower, C.J., and Schumacher and Ahlers, JJ.
2

SCHUMACHER, Judge.

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

clear and convincing evidence in the record to support termination. The father also

contends a permissive exception should be applied to preclude termination of his

rights. Clear and convincing evidence supports termination of the father’s parental

rights and the juvenile court properly declined to apply a statutory exception. We

affirm.

I. Background Facts & Proceedings

This family came to the attention of the Iowa Department of Human Services

(DHS) in May 2021, when Council Bluffs police found the mother unconscious from

an apparent drug overdose. After reviving the mother, police located drugs and

drug paraphernalia in the mother’s apartment, including a syringe in a bowl of baby

food. The child, born in September 2020, was removed from parental custody and

placed in DHS custody for foster care placement on May 2, 2021. The child could

not be placed with the father, who was residing in Nebraska, because he was on

probation and lacked suitable housing.

The child was adjudicated as a child in need of assistance (CINA) on

July 15, 2021, pursuant to Iowa Code section 232.2(6)(c)(2), (n), and (p) (2021).

At the time, the court noted the father’s probation status for burglary, forgery, and

several drug-related offenses, with three years of probation remaining. The father

lacked stable housing and could not be approved to reside in Iowa.

The father visited the child at the initial foster care placement approximately

twice prior to July and his incarceration. The father has been incarcerated since

July 19, based on probation violations. His incarceration caused communication
3

problems between himself and DHS. Contact was not established until January

2022. The father explains the lack of communication was due to the shortage of

money in his account for phone calls. Paternity testing in January established the

father was a biological parent of the child. The father has been engaged in weekly

video-calls with the child since March, a month before the termination hearing. He

expects to be released on his current sentence in May 2022, although he may

need to serve an additional twenty-two days in another county and also has an

outstanding warrant in Iowa.

The child was placed in a second foster home on December 1, 2021, where

he remains. That placement has adopted two of the child’s siblings, which allows

the child to maintain a relationship with those siblings. The child appears to be

doing well, and the placement has indicated a willingness to adopt the child.

The State filed a petition to terminate the parents’ parental rights on

November 29, 2021. Following hearing in April 2022, the court terminated the

father’s parental rights under section 232.116(1)(e) and (h).1 The father appeals.

II. Standard of Review

“We review proceedings terminating parental rights de novo. 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.” In re A.S., 906 N.W.2d 467,

472 (Iowa 2018) (citations and quotations omitted). Our primary concern is always

the best interests of the child. Iowa R. App. P. 6.904(3)(o).

1 The mother’s parental rights were also terminated. She has not appealed.
4

III. Discussion

The father claims the juvenile court improperly found clear and convincing

evidence supported termination of his parental rights. He also contends the court

should have applied a statutory exception to termination based on the closeness

of the parent-child relationship.2

A. Statutory Grounds

The juvenile court relied on section 232.116(1)(e) and (h) to terminate the

father’s parental rights. “We will uphold an order terminating parental rights if there

is clear and convincing evidence of grounds for termination under section

232.116.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). “Evidence is ‘clear and

convincing’ when there are no ‘serious or substantial doubts as to the correctness

[of] conclusions of law drawn from the evidence.’” Id. (quoting In re C.B., 611

N.W.2d 489, 492 (Iowa 2000)). Where, as happened here, the court terminated

the parental rights under multiple statutory grounds, we need only find clear and

convincing evidence supports one ground to affirm. In re T.S., 868 N.W.2d 425,

435 (Iowa Ct. App. 2015). For purposes of this appeal, we focus on section

232.116(1)(h).3

2 The father makes a generalized statement in the last paragraph of his brief that
he was not provided reasonable efforts. However, without authority or further
argument, we deem such issue to be waived. See Iowa R. App. P. 6.903(2)(g)(3)
(“Failure to cite authority in support of an issue may be deemed waiver of that
issue.”).
3 Section 232.116(1)(h) provides for terminating parental rights when the court

finds:
(1) The child is three years of age or younger.
(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 six months of the last twelve months,
5

The father only contests the final element—whether the child could safely

be returned at the present time. “[A]t the present time” means at the time of the

termination hearing. D.W., 791 N.W.2d at 707. The father remained incarcerated

at the time of the termination hearing. Therefore, the child could not be returned

to his custody. Further, placement with the child upon the father’s release in May

as urged by the father presents significant concerns. The father testified that he

can reside at the Open Door Mission and that the child could also reside there. He

has employment when released.

However, the father did not complete substance-abuse or mental-health

treatment in prison.4 The DHS caseworker assigned to the case indicated that

merely having a place for the child to live is insufficient to protect against further

adjudicatory harm. If released, the father would be starting at square one with

services, though the child has been out of parental custody for nearly a year.5

Moreover, it is not clear whether the father will face further legal difficulties upon

his release, including additional time to be served in Nebraska and an outstanding

warrant in Iowa. The child could not safely be returned to the father’s custody at

the time of the termination hearing and termination was appropriate.

or for the last six consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that the child
cannot be returned to the custody of the child’s parents as provided
in section 232.102 at the present time.
4 The father suggested that in lieu of services, which he contends are not offered

at the jail, he attends church and bible study.
5 The father does not appeal the juvenile court’s denial of an extension of time for

reunification services.
6

B. Parent-Child Bond

The father claims the court should have declined to terminate his parental

rights based on the close bond he shares with his child.6 A juvenile court may

decline to terminate based on exceptions found in section 232.116(3). These

factors “are permissive, not mandatory.” In re M.W., 876 N.W.2d 212, 225 (Iowa

2016) (citation omitted). Section 232.116(3)(c) allows the court to decline to

terminate parental rights when “[t]here is clear and convincing evidence that the

termination would be detrimental to the child at the time due to the closeness of

the parent-child relationship.”

The relationship between the father and child is insufficient to preclude

termination. The father has been incarcerated for much of the child’s life. There

has been minimal contact since the father was incarcerated in July, with weekly

virtual visits beginning just a month before the hearing. The father points to the

child referring to him as his father on the video visits. However, the foster

placement informed the DHS caseworker that the child “engages as a small child

who sees somebody on the screen.” We agree with the juvenile court’s

assessment that the father’s previous decisions “have stunted the development of

any true parent-child bond.” Based on the record before us, the father has not

demonstrated that termination will be detrimental to the child based on a bond.

AFFIRMED.

6 The father commingles a best interest argument as part of his permissive
exception argument. While not set out as a separate issue, on our de novo review,
we determine termination of the father’s parental rights is in the child’s best
interest.