In the Interest of K.W., Minor Child, M.W., Mother J.A.-s., Father ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0930
Filed August 16, 2017
IN THE INTEREST OF K.W.,
Minor Child,
M.W., Mother
Appellant,
J.A.-S., Father,
Appellant.
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Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,
District Associate Judge.
A mother and father separately appeal from the termination of their
parental rights to their child. AFFIRMED ON BOTH APPEALS.
Ryan R. Gravett of Oliver Gravett Law Firm, P.C., Windsor Heights, for
appellant mother.
Richard R. Hollis, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Paul L. White of the Des Moines Juvenile Public Defender’s Office, Des
Moines, attorney and guardian ad litem for the minor child.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, Judge.
A mother and father separately appeal from the termination of their
parental rights to their child, K.W., born in September 2016. Both parents
contend termination is not in the child’s best interests and the juvenile court
should have granted their requests for additional time to work toward
reunification with their child. The father also argues the State failed to prove the
statutory grounds for termination by clear and convincing evidence and an
exception to termination exists so as to preclude termination.
The mother has a lengthy history of substance abuse. She admitted using
methamphetamine during her pregnancy and K.W. tested positive for the drug at
birth. The court removed K.W. from the parents’ custody shortly after the child’s
birth and adjudicated K.W. a child in need of assistance (CINA) in October 2016.
The mother minimized and denied her substance-abuse and mental-health
issues throughout the CINA case. She struggled to find suitable housing and
employment to be able to provide for her child’s needs. In March 2017, the
mother was arrested on an outstanding warrant and subsequently charged with
possession of drug paraphernalia.
The father has an extensive criminal history and was incarcerated at the
time of K.W.’s birth. The parents have never been married, but the mother
identified the father as K.W.’s biological parent soon after the child’s birth. The
father was notified of the removal hearing in September 2016 and was present
for the hearing by telephone. However, the father denied paternity and refused
to participate in the court-ordered testing until the end of January 2017, because
he did not want to be responsible for child-support payments. The father did not
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request contact or visitation with the child until after he participated in paternity
testing. He was confirmed the biological parent of K.W. in March 2017—six
months after the child’s birth. At the time of the termination hearing, the father
had been approved for work release but had not yet been transferred to the
work-release facility.
In a detailed and well-reasoned ruling, the juvenile court terminated the
mother’s parental rights pursuant to Iowa Code section 232.116(1)(h) (2017) and
the father’s parental rights pursuant to section 232.116(1)(b) and (h). We review
termination-of-parental-rights proceedings de novo. In re M.W., 876 N.W.2d 212,
219 (Iowa 2016). “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.” Id.
at 219 (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa 2014)). Our primary
consideration is the best interests of the child. In re J.E., 723 N.W.2d 793, 798
(Iowa 2006).
The father challenges the grounds for termination under paragraph (b) and
also appears to challenge the grounds under paragraph (h) by claiming the Iowa
Department of Human Services (DHS) failed to make reasonable efforts to
reunify him with his child.1 See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000)
(“The State must show reasonable efforts as a part of its ultimate proof the child
cannot be safely returned to the care of a parent [at the time of the termination
hearing].”). When a court terminates parental rights on more than one ground,
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The mother does not challenge the statutory grounds for termination; therefore, we do
not address this issue and affirm the termination of her parental rights under paragraph
(h). See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (stating that, when a parent does not
challenge the existence of statutory grounds, we need not address the issue).
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we may affirm the order on any of the statutory grounds supported by clear and
convincing evidence. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010).
The State must make reasonable efforts to reunify the family as quickly as
possible after a child has been removed from his or her parents’ care and
custody. Iowa Code § 232.102(7). In determining whether reasonable efforts
have been made, the court considers “[t]he type, duration, and intensity of
services or support offered or provided to the child and the child’s family.” Id.§ 232.102(10)(a)(1). “[T]he nature and extent of visitation is always controlled by
the best interests of the child.” In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App.
1996). When a parent is incarcerated, DHS must provide services “reasonable
under the circumstances.” In re S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000).
In making this determination, DHS may consider the following factors: the child’s
age, the bond the child shares with the incarcerated parent, “any existing clinical
or other recommendations concerning visitation,” “the nature of parenting
deficiencies,” the physical location of the incarcerated parent relative to the
child’s placement, “the limitations of the place of confinement,” the services
available to the incarcerated parent in his or her current setting, the nature of the
criminal offense, “and the length of the parent’s sentence.” Id.After the father requested visitation, DHS considered the factors listed
immediately above and determined visitation was not appropriate in this case
due to the child’s young age, the complete lack of a bond between the father and
his child, the father’s lack of experience in parenting young children, the great
physical distance between the child’s foster home and the prison where the
father was located, the prison’s visiting room was not conducive to holding visits
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with very young children, the fact the father was in prison for drug-related
offenses, and because the father’s tentative discharge date was set for April
2020. Based upon this detailed report by DHS, the court did not order visitation
between the father and the child following the hearing on the matter in April 2017,
noting specifically “the child’s developmental delays, mental, emotional and
physical, as well as [the] recent change in caretakers, make a long distance trip
to visit with the father harmful to the child.” On our de novo review, we cannot
say the denial of visitation to the father was unreasonable under the
circumstances. We agree with the juvenile court’s finding that reasonable efforts
were made to reunify the father with his child and affirm the termination of the
father’s rights under paragraph (h).
Both parents argue termination is not in the child’s best interests. In
determining whether termination of a parent’s parental rights is in a child’s best
interests, we “give primary consideration to the child’s safety, to the best
placement for furthering the long-term nurturing and growth of the child, and to
the physical, mental, and emotional condition and needs of the child.” Iowa Code
§ 232.116(2). “Insight for the determination of the child’s long-range best
interests can be gleaned from ‘evidence of the parent’s past performance for that
performance may be indicative of the quality of the future care that parent is
capable of providing.’” In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (quoting In
re C.B., 611 N.W.2d at 495).
The mother did not address her substance-abuse or mental-health issues
during the underlying CINA case. She was unemployed, did not have stable
housing or reliable transportation, and was unable to meet her child’s needs.
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The mother never progressed beyond fully supervised visits. She was arrested
in March 2017 on an outstanding warrant from December 2016 and charged with
a drug-related offense for having a methamphetamine pipe on her person at the
time of her arrest. At the time of the termination hearing, the mother was living
with a friend who was not appropriate to be around the child. The father has
been incarcerated for all of K.W.’s short life. The lack of a relationship between
the father and his child is due to the father’s incarceration and initial refusal to
participate in paternity testing or request contact with the child. The child is in
foster care with a distant relative who wishes to adopt the child. Based on this
evidence, we find termination is in the child’s best interests.
The father next contends Iowa Code section 232.116(3)(c) applies to save
his relationship with his child. That section provides a court may decide not to
terminate a parent’s parental rights if “[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.” Iowa Code § 232.116(3)(c). The
father acknowledges he does not have a bond with his child at all, let alone a
close one. Yet, he claims “the reason [he] has not been able to develop a close
relationship with [the child] is because of the failure of the Department of Human
Services to provide visitation services.” We have already determined the denial
of visitation was not unreasonable. We affirm the juvenile court’s decision that
section 232.116(3)(c) does not apply here.
Finally, both parents claim the juvenile court should have granted their
requests for an additional six months to work toward reunification with their child.
Under Iowa Code section 232.104(2)(b), a court may authorize a six-month
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extension if it determines “the need for removal of the child from the child’s home
will no longer exist at the end of the additional six-month period.”
The mother concedes she has “significantly struggled and did not engage
in all of the services to aide her in having her child place[d] back in her care.”
She further admits “she spent much of this case minimizing her and not
understanding the extent of her substance abuse issues.” Nevertheless, she
claims that had the juvenile court granted her request for an additional six
months, she could have entered a residential facility and the child could have
been placed with her there. She did not have stable housing or employment
throughout the CINA case. And even before the mother was jailed in March
2017, she never progressed beyond fully supervised visits. The father spent the
first several months denying paternity of the child and refusing to participate in
services to avoid paying child support for the child. At the time of the termination
hearing, the father had been approved for work release but had not yet been
transferred to the facility. He has a tentative discharge date of April 2020.
We must now view this case with a sense of urgency. See In re C.B., 611
N.W.2d at 495; see 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 33, 41 (Iowa 2010))). We cannot ask this child to continuously wait
for the parents to become stable. See In re D.W., 791 N.W.2d at 707; see also
In re A.B., 815 N.W.2d at 778 (“It is simply not in the best interests of children to
continue to keep them in temporary foster homes while the natural parents get
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their lives together.” (quoting In re C.K., 558 N.W.2d 170, 175 (Iowa 1997))). On
the record before us, we are not persuaded the need for removal would no longer
exist at the end of six months. See Iowa Code § 232.104(2)(b).
Accordingly, upon our de novo review, we affirm the juvenile court’s order
terminating the mother’s and the father’s parental rights to their child.
AFFIRMED ON BOTH APPEALS.