In the Interest of J.G. and J.G., Minor Children ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1730
Filed January 9, 2020
IN THE INTEREST OF J.G. and J.G.,
Minor Children,
L.G., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, Paul G. Crawford,
District Associate Judge.
A father appeals the termination of his parental rights to his children.
AFFIRMED.
Jeffrey P. Hazen of Grimes, Buck, Schoell, Beach & Hitchins, Marshalltown,
for appellant father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State
Merrill C. Swartz of Swartz Law Firm, Marshalltown, attorney and guardian
ad litem for minor children.
Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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DOYLE, Presiding Judge.
A father appeals the termination of his parental rights to his children. 1 He
challenges the sufficiency of the efforts made to reunite the family and contends
termination is against the children’s best interests. In the alternative, the father
seeks to avoid termination by arguing that it would harm the children because of
the closeness of the parent-child bond. We review his claims de novo. See In re
A.S., 906 N.W.2d 467, 472 (Iowa 2018).
We first address the father’s claim that the Iowa Department of Human
Services (DHS) failed its obligation to “make every reasonable effort to return the
child[ren] to the child[ren]’s home as quickly as possible consistent with the best
interests of the child[ren].” Iowa Code § 232.102(9) (2019); accord In re C.B., 611
N.W.2d 489, 493 (Iowa 2000) (“The State must show reasonable efforts as part of
its ultimate proof the child cannot be safely returned to the care of a parent.”).
“[R]easonable efforts” are “the efforts made to preserve and unify a family prior to
the out-of-home placement of a child in foster care or to eliminate the need for
removal of the child or make it possible for the child to safely return to the family’s
home.” Iowa Code § 232.102(12). The concept of reasonable efforts “includes
visitation designed to facilitate reunification while providing adequate protection for
the child.” C.B., 611 N.W.2d at 493. Although the DHS must “make every
reasonable effort” to return a child to the child’s home “as quickly as possible
consistent with the best interests of the child,” id. (citation omitted), the DHS has
to supply only those services that “are reasonable under the circumstances.” In re
1The mother’s parental rights to the children were also terminated. She is not a
party to this appeal.
3
S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000) (citation omitted). “Whether
visitation for an incarcerated parent should be ordered as a reasonable effort
toward reunification when timely raised by the parent will depend on the
circumstances of each case.” In re L.M., 904 N.W.2d 835, 840 n.9 (Iowa 2017).
The father bases his argument on his lack of visitation with the children
while incarcerated during the first year of the of the child-in-need-of-assistance
(CINA) proceedings. The juvenile court placed the children with the paternal
grandparents. The father was in jail at the time. He was not offered any visits with
the children while in jail because the mother did not want the children to go to the
jail. Asked why the mother got to make that decision if the children were in the
custody of DHS, the social worker responded, “I don’t know.” After the father was
transferred to the Iowa Department of Corrections in July 2018, visitation was still
not offered because “[the father] didn’t request any.” The father did not request
visitation until the January 2019 permanency hearing and the DHS began visitation
the next month.
Assuming without deciding the father’s request for visitation reunification
services was timely, based on a consideration of all of the relevant factors, we find
the services offered to the father were reasonable under the circumstances. See
id. (“The services required to be supplied to an incarcerated parent, as with any
other parent, are only those that are reasonable under the circumstances.”).
Although additional visits may have helped form a bond between the father and
children, the benefit flowing from additional visits would not have outweighed the
immediate needs of the children. See In re M.B., 553 N.W.2d 343, 345 (Iowa Ct.
App. 1996) (“[N]o evidence indicated increased visitation would help [the parent]
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respond to the various services offered by the DHS and assist her in becoming a
better parent.”). The services provided by the DHS were reasonable under the
circumstances of the case.
The father next contends termination goes against the children’s best
interests. See In re D.W., 791 N.W.2d 703, 706-07 (Iowa 2010) (requiring that the
court “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”). In
determining best interests, our primary considerations are “the child[ren]’s safety,”
“the best placement for furthering the long-term nurturing and growth of the
child[ren],” and “the physical, mental, and emotional condition and needs of the
child[ren].” In re P.L., 778 N.W.2d 33, 37 (Iowa 2010) (quoting Iowa Code
§ 232.116(2)). The “defining elements” we consider in making this determination
are the children’s safety and “need for a permanent home.” In re H.S., 805 N.W.2d
737, 748 (Iowa 2011) (citation omitted).
Termination is in the children’s best interests. The father’s intravenous use
of methamphetamine and violent behavior led to his incarceration and removal
from the children’s lives for over a year. He remained incarcerated at the time of
the termination hearing. Although the father received parole one month later,
eighteen months passed between the inception of the CINA proceedings and the
order terminating his parental rights. The father needs additional time to address
“numerous concerns” before he can care for the children safely. These children
cannot afford to allow the father the luxury of additional time tacked on to the end
of what is already a long proceeding in relation to their young lives. See C.B., 611
N.W.2d at 494 (noting that although the law requires a “full measure of patience
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with troubled parents who attempt to remedy a lack of parenting skills,” the
legislature built this patience into the statutory scheme of chapter 232); In re R.J.,
436 N.W.2d 630, 636 (Iowa 1989) (noting that once the time for reunification set
by the legislature has expired, “patience on behalf of the parent can quickly
translate into intolerable hardship for the children”); In re A.C., 415 N.W.2d 609,
614 (Iowa 1987) (“It is unnecessary to take from the children’s future any more
than is demanded by statute.”).
We decline to take any more time from these children. Children are not
equipped with pause buttons, and delaying permanency in favor of a parent
conflicts with the children’s best interests. See In re A.M., 843 N.W.2d 100, 112
(Iowa 2014) (noting children must not be deprived of permanency on the hope that
someday the parent will be able to provide a stable home); A.C., 415 N.W.2d at
614 (noting that in considering whether to allow a parent additional time to remedy
parenting deficiencies, the court should “constantly bear in mind that, if the plan
fails, all extended time must be subtracted from an already shortened life for the
children in a better home”); In re T.J.O., 527 N.W.2d 417, 422 (Iowa Ct. App. 1994)
(“Children simply cannot wait for responsible parenting. Parenting cannot be
turned off and on like a spigot. It must be constant, responsible, and reliable.”); In
re D.A., 506 N.W.2d 478, 479 (Iowa Ct. App. 1993) (“The crucial days of childhood
cannot be suspended while parents experiment with ways to face up to their own
problems.”).
Finally, the father seeks to avoid termination under section 232.116(3),
which states that the court “need not” terminate parental rights in some cases,
listing certain requirements. But section 232.116(3) is permissive, not mandatory.
6
See A.S., 906 N.W.2d at 475. If we find one of the circumstances listed in the
section exists, we must still consider the children’s best interests in determining
whether to terminate parental rights. See id. And the parent bears the burden of
proving one of the circumstances exists. See id. at 476.
The father claims that terminating his parental rights “would be detrimental
to the child[ren] . . . due to the closeness of the parent-child relationship.” Iowa
Code § 232.116(3)(c). But the record belies his claim. At the time of the
termination hearing, the older child was three years old. The father was in prison
for sixteen months—almost half of the older child’s life and the entirety of the
younger child’s life. The children had no contact with the father during his first year
of incarceration and their contact after that was limited. Because the evidence
does not support a finding that termination would harm the children, section
232.116(3)(c) does not apply.
We affirm the termination of the father’s parental rights.
AFFIRMED.