In the Interest of A.L., Minor Child, B.L., Father ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1587
Filed March 9, 2016
IN THE INTEREST OF A.L.,
Minor Child,
B.L., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Gary P.
Strausser, District Associate Judge.
A father appeals the termination of his parental rights to his child.
AFFIRMED.
Jeffrey L. Powell of Law Office of Jeffrey L. Powell, Washington, for
appellant father.
Thomas J. Miller, Attorney General, and Janet L. Hoffman and Kathrine S.
Miller-Todd, Assistant Attorneys General, for appellee State.
Mark J. Neary of Neary Law Office, Muscatine, attorney and guardian ad
litem for minor child.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.
A father appeals the termination of his parental rights to his child, born in
2014. He contends the district court: (1) should not have terminated his parental
rights; (2) should have granted him six additional months to work toward
reunification; (3) should have placed the child in the guardianship of the child’s
great-grandmother; and (4) should have granted his motion to have the judge
recused.
I. Ground for Termination
The district court terminated the father’s parental rights pursuant to Iowa
Code section 232.116(1)(h) (2015), which requires proof of several elements
including proof the child cannot be returned to the parent’s custody. On our de
novo review, we find clear and convincing evidence to support this ground for
termination.
The father was incarcerated before the child’s birth and remained
incarcerated at the time of the termination hearing. He had an extensive criminal
record dating back to 2003 and growing out of his addiction to illegal substances.
In 2008, he was sentenced to prison on a burglary conviction. In time, he was
paroled but committed another crime resulting in a conviction for manufacturing
methamphetamine. The father returned to prison, was again paroled, and again
committed a crime resulting in a conviction for first-degree theft. He was not
slated to discharge his sentences until 2020. We conclude the child could not be
returned to the father’s custody at the time of the termination hearing. See In re
A.M., 843 N.W.2d 100, 111 (Iowa 2014); In re D.W., 791 N.W.2d 703, 707 (Iowa
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2010) (noting section 232.2116(1)(h) requires proof the child “cannot be returned
to the parents’ custody at the time of the termination hearing”).
II. Additional Time
The father contends the district court should have granted him six
additional months to reunify with the child. See Iowa Code §§ 232.104(2)(b),
232.117(5). We disagree.
The father’s incarceration prevented him from developing more than a
superficial relationship with the child. He saw the child for the first time at his
sentencing hearing and exercised visits only in the supervised confines of prison
institutions and only through the good will of the child’s seventy-eight-year-old
great-grandmother, who gained the department’s approval to transport the child
to prison twice a month.1
We recognize the father expected to appear before the parole board four
months after the termination hearing and anticipated release to a halfway house
or, possibly, to the child’s great-grandmother’s home. However, he
acknowledged the possibility of being denied parole. And, even if he were
released, a department of human services caseworker testified he would have to
complete months of post-release services to prepare himself for reunification with
the child. She stated, “It would take a while for us to determine if he could be a
safe place[ment] for [the child.]” These additional services were necessary
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The father formally began visiting the child at the correctional facility housing him after
his paternity was established and the department approved the great-grandmother’s
transportation request. He was also allowed informal visits with the child during the
thirty-day transitional period from the Oakdale Classification Center to the correctional
facility.
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despite the father’s participation in prison programming designed to address his
addictions and prepare him for release.
The father’s track record also did not bode well for a successful transition.
The father acknowledged failing a drug test in 2013 just two days after
completing a drug treatment program. While he expressed a renewed
commitment to sobriety, his commitment had not been retested in an unsecure
setting. As the district court stated, “[H]is substance abuse issues are not likely
to disappear.”
We conclude the district court appropriately denied the father’s request for
six additional months to work toward reunification.
III. Guardianship with Child’s Great-Grandmother
The father contends the department should have placed custody and
guardianship with the child’s great-grandmother. See id. § 232.117(3)(c)
(allowing the court to transfer guardianship and custody of child to a relative).
The department recommended this disposition. The caseworker testified her
home had been found suitable, the child had a bond with her great-grandmother,
and, if the father were released, the child’s placement in this home “would give
him the opportunity to see his daughter on a fairly regular basis.”
Notwithstanding the department’s position, the district court concluded
guardianship with the great-grandmother was “not appropriate.” The court
explained the great-grandmother would be ninety-five when the child turned
eighteen and it was “not realistic to believe that she [would] be able to parent [the
child] throughout [the child’s] childhood.” The court also stated the great-
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grandmother considered the placement temporary until the father was capable of
caring for the child, leaving the child with “a permanent unsettled placement.”
On our de novo review, we find the child’s great-grandmother was willing
to serve as a permanent placement for the child. She testified she wished to
become the guardian but, alternatively, was willing to adopt the child. She stated
she was in good health and had the ability to care for the child despite her age.
The extraordinary steps the great-grandmother took to maintain family ties
included gaining approval for overnight visits with the child and approval for four-
hour round trip visits to the prison. These steps reflected her abiding
commitment to father and child.
Nonetheless, we conclude the district court acted appropriately in denying
the request for guardianship and custody. While the great-grandmother testified
she would make every effort to protect the child should the father fail to maintain
his sobriety on release, she admitted she would be unable to force him to leave
the home, if he chose to stay. This factor supports the district court’s decision to
deny the great-grandmother guardianship and custody of the child.
IV. Recusal
The father contends the district court judge should have recused himself
because “he and the Judge had argued during numerous criminal hearings,
including times when [he] became angry and threatened to assault the judge in
years past.” Our review is for an abuse of discretion. Taylor v. State, 632
N.W.2d 891, 894 (Iowa 2001).
Iowa Rule of Judicial Conduct 51:2.11 states judges shall disqualify
themselves “in any proceeding in which [their] impartiality might reasonably be
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questioned,” including where the judges have “a personal bias or prejudice
concerning a party . . . .” “Impartiality” is defined as the “absence of bias or
prejudice in favor of, or against, particular parties or classes of parties, as well as
maintenance of an open mind in considering issues that may come before a
judge.” Iowa Rule of Judicial Conduct 51.
When the father first filed his recusal motion, a judge not the subject of the
motion ruled, “[T]here are not sufficient grounds stated in the application to
require [the judge] to recuse himself in the matter.” At a subsequent hearing, the
judge subject to the motion allowed the father to recount an incident in 2010
when the judge changed his bond and the father attempted to “come behind the
desk.” The judge responded, “Are you sure that was me?” The father answered,
“Yes.” The judge then stated, “I’ll tell you I don’t remember it.” The judge ruled,
I don’t recall the incidents you are making reference to. If I did it
wouldn’t make any difference for this motion. It’s not unusual for
people in jail to get upset and it’s not unusual for people to be upset
when they are talking about issues of children. I know that’s not
what you are referencing. I don’t take it personally and I don’t think
there’s any problem with me hearing the issues in this case.
The court followed up with a written order noting the motion to recuse was denied
by another judge, and it was again being denied for the reasons stated on the
record and because the father did not demonstrate “any personal bias by
allegations of fact.” The court continued, “The fact that the undersigned has had
past contact with [the father] is not sufficient for recusal. All of the information
presented by [the father] simply amounts to nothing more than the undersigned
performing his function as a District Associate Judge.”
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We discern no abuse of discretion in this ruling. See State v. Jason, No.
14-1162, 2015 WL 6510334, at *6-7 (Iowa Ct. App. Oct. 28, 2015) (finding no
indication the judge found threats credible or that judge was biased against
defendant); In re J.A.P., No. 09-0486, 2009 WL 4241795, at *4 (Iowa Ct. App.
Nov. 25, 2009) (rejecting the argument that the judge who sentenced the parent
to incarceration should have recused herself from hearing the termination action
where there was no dispute the judge did not remember the plea and sentence).
The judge’s inability to recall the incident in question establishes that it could not
have affected his impartiality. Accordingly, we affirm the district court’s denial of
the recusal motion.
We affirm the termination of the father’s parental rights to his child.
AFFIRMED.