In the Interest of G.W., Minor Child ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0515
Filed June 5, 2019
IN THE INTEREST OF G.W.,
Minor Child,
G.W., Father,
Appellant.
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Appeal from the Iowa District Court for Polk County, Joseph Seidlin, Judge.
A father appeals the termination of his parental relationship with his three-
year-old son. AFFIRMED.
Edward S. Fishman of Hopkins & Huebner, P.C., Adel, for appellant father.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Karl Wolle of Juvenile Public Defender, Des Moines, attorney and guardian
ad litem for minor child.
Considered by Vogel, C.J., and Vaitheswaran and Tabor, JJ.
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TABOR, Judge.
A father, Gregory, appeals the juvenile court’s order terminating his parental
relationship with his son, G.W., who was born in November 2015. The court found
Gregory had a “mounting history of domestic violence” and untreated problems
with alcohol and substance abuse, which hindered his ability to parent G.W. On
appeal, Gregory contends the State did not prove statutory grounds for
termination, reasonable efforts to reunify, or that termination is in G.W.’s best
interests. Gregory also alleges the court should have denied the petition to
terminate based on the closeness of the parent-child relationship. In the
alternative, he asks to delay permanency for six months.
After an independent review of the record, we share the conclusions of the
juvenile court.1 Gregory is not in a position to be G.W.’s caretaker at the present
time—he admitted that at the termination hearing. And because his remaining
arguments muster no traction, we affirm.
I. Facts and Prior Proceedings
Gregory has engaged in a pattern of domestic violence over the past
decade. It was his assault on G.W.’s mother, Monica, in the child’s presence that
drew the attention of the Iowa Department of Human Services (DHS) in July 2017.2
The parents also were using controlled substances and drinking alcohol to excess.
1
We review child-welfare cases de novo. In re M.W., 876 N.W.2d 212, 219 (Iowa 2016)
(citing In re A.M., 843 N.W.2d 100, 110 (Iowa 2014)). Clear and convincing evidence must
support the juvenile court’s conclusions. Id. (citing In re D.W., 791 N.W.2d 703, 706 (Iowa
2010)). Clear and convincing evidence means we harbor no serious or substantial doubt
about the correctness of the conclusion drawn from the evidence. Id. (citing D.W., 791
N.W.2d at 706).
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Monica, who suffers from depression, voluntarily gave up her rights to G.W. at the
termination hearing.
3
Gregory was on probation for cocaine possession at the time of the assault. The
court approved the DHS decision to remove G.W. from the parents’ care and
placed the toddler with his maternal grandmother.
For the next fourteen months, Gregory did little to improve his parenting
skills or his relationship with G.W. He had limited contact with G.W. He
participated in none of the DHS-recommended services and continued to use
drugs frequently and drink alcohol heavily on a daily basis. As the juvenile court
observed: “He was relying on Monica to reunite with [G.W.] rather than make the
needed changes himself.”
Then, in September 2018, things took another turn for the worse. Police
investigated another attack by Gregory against Monica. She told officers Gregory
grabbed her by the throat with both hands and strangled her until she lost
consciousness. He struck her several times in the face. And he strutted around
the apartment with a gun, threatening to kill her. Officers noticed marks on her
neck and an open cut on her upper lip. They found a .22 caliber magnum revolver
in the couple’s bedroom. Gregory faced charges of felony domestic abuse
strangulation and spent the next three months in the Polk County jail awaiting trial.
He was granted pretrial release in late December to attend residential substance-
abuse treatment in Fort Dodge.
In October 2018, the DHS placed G.W. in the same household as his three
older half-brothers, who live with their father and his girlfriend. The case worker
reported G.W. was happy with his siblings and well-adjusted to that home.
At the termination hearing in January 2019, Gregory invoked his Fifth
Amendment privilege on all of the assistant county attorney’s questions about the
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assault on G.W.s mother. In doing so, he exuded a hostility to the process and a
fundamental misunderstanding about the impact of his criminality on his
relationship with his son, saying “Can we get to the fact that it’s about my child?
It’s not about me and this criminal charge, like for real.” He also complained that
the State “badgering” him about his criminal charges was “counterproductive to
what he was trying to do for [himself] right now.”
The juvenile court terminated parental rights in a February 2019 order.
Gregory now appeals.
II. Analysis
A. Statutory Grounds
To terminate parental rights, the juvenile court must first find clear and
convincing evidence supporting one of the grounds for termination listed under
Iowa Code section 232.116(1) (2018). See D.W., 791 N.W.2d at 706. In G.W.’s
case, the court found the State met its burden under paragraphs (e) and (h). To
affirm, we need only find sufficient proof under one of those paragraphs. See In
re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999).
We focus on paragraph (h).3 Gregory makes a barebones assertion in his
petition on appeal that he disagrees with the juvenile court’s sufficiency finding.
Yet at the termination hearing he agreed with the assistant county attorney that he
3
Termination under this subsection requires proof the child (1) is three years of age or
younger; (2) has been adjudicated a child in need of assistance pursuant to section
232.96; (3) has been removed from the physical custody of the child’ s parents for at
least six months of the last twelve months, or for the last six consecutive months and any
trial period at home has been less than thirty days; and (4) cannot be returned to the
custody of the parents as provided in section 232.102 at the present time.
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could not assume custody of G.W. at the time of the hearing.4 See A.M., 843
N.W.2d at 111 (describing “present time” as the time of the hearing). Gregory
faced domestic abuse charges and was only beginning to address his aggression
and substance-abuse issues. Because no element of section 232.116(1)(h) is truly
at issue, we affirm on this ground.
B. Best Interests and Parent-Child Bond
Having found clear and convincing evidence to support terminating
Gregory’s parental rights under section 232.116(1)(h), we turn to his claim that
ending the father-son relationship is not in G.W.’s best interests. In making the
best-interests determination, we give primary consideration to G.W.’s safety, the
best placement for furthering his long-term nurturing and growth, as well as his
physical, mental, and emotional condition and needs. See In re P.L., 778 N.W.2d
33, 37 (Iowa 2010) (quoting Iowa Code § 232.116(2)). Safety and the need for a
permanent home mark the “defining elements in a child’s best interest.” In re J.E.,
723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially).
After considering the pertinent factors, we are convinced waiting for his
father to deal with alcoholism, substance abuse, and his penchant to commit
domestic violence is not in G.W.’s best interests. See P.L., 778 N.W.2d at 38 (“A
stable, loving homelife is essential to a child’s physical, emotional, and spiritual
well-being.” (citation omitted)).
Gregory next contends the closeness of the parent-child relationship should
preclude termination. See Iowa Code § 232.116(3)(c). The record does not
4
Gregory resisted having his rights terminated but testified, “I want to give my parental
rights to my mother.”
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support that contention. Even before he went to jail, Gregory had little contact with
G.W. The case worker testified G.W. “probably recognizes Greg” but she did not
believe they had a strong connection. Any bond between G.W. and Gregory does
not outweigh the grounds for termination.
C. Reasonable Efforts
The DHS is required to “make every reasonable effort” to return the child
home as quickly as possible consistent with the child’s best interests. Iowa Code
§ 232.102(7); In re C.B., 611 N.W.2d 489, 493 (Iowa 2000). We focus on the
services provided by the State and the parent’s response, not on services the
parent now claims the DHS failed to provide. C.B., 611 N.W.2d at 494.
Gregory contends the DHS did not make reasonable efforts to reunite the
family because the agency did not facilitate visitation with G.W. while Gregory was
in jail, failed initially to send notices to paternal relatives, and did not assist Gregory
in obtaining health insurance and transportation. The termination ruling addressed
only the jail visitation issue, finding the DHS decision not to set up interactions was
reasonable considering the factors in In re S.J., 620 N.W.2d 522, 524 (Iowa Ct.
App. 2000). The DHS worker testified she did not recommend visitation because
Gregory did not have contact with G.W. for “a significant amount of time” before
he was incarcerated. She said the jail had no visiting room and communication
through a monitor would not have been “productive.” She also considered the
seriousness of the offense for which Gregory was incarcerated.
The worker’s conclusion that video communication would not have been
meaningful appears unsubstantiated. Other witnesses testified to having pleasant
“video chats” with the child. But on balance, like the juvenile court, we accept the
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DHS decision not to offer Gregory visitation while he was awaiting trial for a violent
assault on G.W.’s mother.
On the issue of relative notice, Iowa Code section 232.84(2) requires the
DHS to “exercise due diligence in identifying and providing notice to the child’s
grandparents, aunts, uncles, adult siblings, and adult relatives suggested by the
child’s parents” within thirty days after the entry of an order transferring custody of
a child to an agency for placement. See In re R.B., 832 N.W.2d 375, 380 (Iowa
Ct. App. 2013) (holding statutory language “places the onus on the department
rather than the parents to identify relatives subject to notification”). The case
worker testified she did not send timely notices to Gregory’s relatives because
G.W. “was placed with a stable family member already.” It appears the worker
misunderstood her obligation under the statute. The assistant county attorney
acknowledged at the hearing it was “unfortunate” relative notice did not happen in
this case, but insisted the State had still met its reasonable efforts requirement.
In R.B., our court grappled with the appropriate remedy for a violation of
section 232.84(2). Id. at 382. We reasoned “the father is hard-pressed to show
that he suffered injustice by virtue of the department’s failure to notify his mother”
because he did not contest the grounds for termination. Id. The situation is
comparable here. Gregory does not explain how notice would have aided his
ability to reunite with G.W. A similar disconnect exists with Gregory’s mention of
insurance and transportation issues. Because he does not fully explore the import
of these services, we decline to grant relief on the issue of reasonable efforts.
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D. Delay in Permanency
As a final issue, Gregory asserts he “should have been granted a six-month
extension rather than having his rights terminated.” But he offers no supporting
rationale for his assertion.
To continue placement for an additional six months, Iowa Code section
232.104(2)(b) requires the juvenile court to determine the need for removal will no
longer exist at the end of the extension. In considering a delay in permanency, the
court must bear in mind “if the plan fails, all extended time must be subtracted from
an already shortened life for the children in a better home.” In re A.A.G., 708
N.W.2d 85, 92–93 (Iowa Ct. App. 2005). We do not favor delaying permanency
for G.W. Gregory has a long track record of domestic violence and substance
abuse. He has not come close to resolving these concerns. The record does not
show six more months of services would prevent termination.
AFFIRMED.