In the Interest of H.W. and T.W., Minor Children, T.W., Father ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1864
Filed February 10, 2016
IN THE INTEREST OF H.W. and T.W.,
Minor Children,
T.W., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Colin J. Witt, District
Associate Judge.
A father appeals the juvenile court’s order terminating his parental rights.
AFFIRMED.
Colin R. McCormack of Van Cleaf & McCormack Law Firm, L.L.P., Des
Moines, for appellant father.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant
Attorney General, for appellee State.
Michelle R. Becker of the Youth Law Center, Des Moines, attorney and
guardian ad litem for minor children.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
MULLINS, Judge.
A father appeals the juvenile court’s order terminating his parental rights to
his two children: H.W., born in February 2008, and T.W., born in November
2005.1 The father argues termination is not in the children’s best interests
because he shares a substantial bond with his children. Upon our de novo
review of the record, we affirm.
In January 2013, the children were removed from their father’s care and
custody due to the father’s methamphetamine use.2 In February 2013, the
juvenile court adjudicated H.W. and T.W. as children in need of assistance
(CINA).
The father has been in and out of prison throughout the life of this case.
After the children were removed from his home in early 2013, the father was
arrested for possession of methamphetamine. He completed substance abuse
treatment for marijuana, methamphetamine, and alcohol. Not long after he was
released from the treatment program, the father was again arrested. He pleaded
guilty in November 2013 and was sentenced to serve seven years in prison. In
November 2014, the father was released from prison and began cooperating with
services for this case.
At the April 2015 permanency-review hearing, the father told the court that
he was doing well but neglected to report he had an outstanding bench warrant
1
The juvenile court also terminated the mother’s parental rights pursuant to Iowa Code
section 232.116(1)(f) (2015). She does not appeal.
2
The children were placed in the care of their mother until May 2014. The children were
then removed from their mother’s care and custody and placed in the care of their
paternal aunt until July 2015. At the time of the termination hearing, the mother was
incarcerated, and the children were in the care of their maternal great aunt and uncle.
3
for his arrest. Based on the father’s self-report of his progress and evidence
presented by the Iowa Department of Human Services (DHS) that the father was
engaging in services and community resources, the juvenile court concluded the
children should be returned to the father’s care and custody the following
month—exactly one year after the children had been removed from the mother’s
care and custody. A few weeks later, however, the father was arrested for a
violation of parole, operating while intoxicated third offense, and driving while
barred-habitual offender. In July 2015, the father was sentenced to serve five
years in prison. He has a tentative release date of July 2017.
In September 2015, the State filed a termination-of-parental-rights petition.
In October 2015, the juvenile court held a hearing on the petition and
subsequently terminated the father’s parental rights to his two children pursuant
to Iowa Code section 232.116(1)(f).3
We review termination-of-parental-rights proceedings de novo. In re A.M.,
843 N.W.2d 100, 110 (Iowa 2014). We give weight to the factual determinations
of the juvenile court, especially with regard to witness credibility, but we are not
bound by them. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Our primary
consideration is the best interests of the children. See id. at 776.
On appeal, the father does not challenge the statutory grounds for
termination, and we do not address the issue any further. See In re P.L., 778
3
Under Iowa Code section 232.116(1)(f), the court may terminate parental rights if the
court finds the State has proved by clear and convincing evidence the child (1) is four
years old or older; (2) has been adjudicated CINA; (3) has been removed from the
parent’s physical custody “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”;
and (4) cannot be returned to the parent’s custody at the time of the termination hearing.
4
N.W.2d 33, 40 (Iowa 2010). Instead, the father claims termination of his parental
rights was not in the children’s best interests under Iowa Code section
232.116(3)(c)4 because he shares a substantial bond with his children.
Under Iowa law, a court need not terminate parental rights if it finds any of
the statutory exceptions under section 232.116(3) apply. In re P.L., 778 N.W.2d
at 39. “‘The factors weighing against termination in section 232.116(3) are
permissive, not mandatory,’ and the court may use its discretion, ‘based on the
unique circumstances of each case and the best interests of the child, whether to
apply the factors in this section to save the parent-child relationship.’” In re A.M.,
843 N.W.2d at 113 (quoting In re D.S., 806 N.W.2d 458, 475 (Iowa Ct. App.
2011)).
We do not find that the bond between the father and his children weighs
against termination of the father’s parental rights here. Our review of the record
before us reveals the children want contact with their father and worry about his
safety. However, they are also afraid of him and concerned about returning to
his care to only later be removed again. The father has a lengthy history of
substance abuse and criminal activity. The children are doing well in their great
aunt and uncle’s home, and the aunt and uncle wish to adopt them. Both
children have stated they enjoy living with their aunt and uncle. Termination and
adoption will provide these two young children with the permanency and stability
they deserve. We cannot ask these children to continuously wait for their father
to become a stable parent. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010); see
4
Iowa Code section 232.116(3)(c) provides the court need not terminate parental rights
if it determines that “termination would be detrimental to the child at the time due to the
closeness of the parent-child relationship.”
5
also In re A.B., 815 N.W.2d at 777 (“It is well-settled law that 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.” (quoting In re P.L., 778 N.W.2d at
41)). “[A]t some point, the rights and needs of the children rise above the rights
and needs of the parent.” In re C.S., 776 N.W.2d 297, 300 (Iowa Ct. App. 2009).
Thus, upon our de novo review, we conclude no permissible factors
weighing against termination exist and termination of the father’s parental rights
is in the children’s best interests. We affirm the juvenile court’s order.
AFFIRMED.