In the Interest of E.M. and C.M., Minor Children ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0497
Filed July 20, 2022
IN THE INTEREST OF E.M. and C.M.,
Minor Children,
K.M., Father,
Appellant.
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Appeal from the Iowa District Court for Benton County, Cynthia S. Finley,
District Associate Judge.
A father appeals the termination of his parental rights. AFFIRMED.
Jennifer Frese of Kaplan & Frese, LLP, Marshalltown, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Judith Jennings Hoover, Cedar Rapids, attorney and guardian ad litem for
minor children.
Considered by Bower, C.J., and Schumacher and Ahlers, JJ.
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BOWER, Chief Judge.
A father challenges the termination of his parental rights, asserting the
grounds for termination have not been established, termination is not in the
children’s best interests, the court should apply an exception to termination
because the children are in a relative’s custody, and the State did not make
reasonable efforts to reunite him with the children. We affirm.
K.M., father of E.M. and C.M., left the family home in spring 2020 following
allegations of sexual abuse. The children remained in the mother’s custody and
care. In June, each child was adjudicated a child in need of assistance (CINA).
Criminal charges were filed, and a no-contact order between the father and the
children was entered. The children were formally removed from the father’s
custody on September 9, and custody remained with the mother under the
supervision of the department of human services (DHS).
On August 18, 2021, a jury convicted K.M. of two counts of sexual abuse in
the second degree, two counts of lascivious acts with a child, and two counts of
assault with intent to commit sexual abuse. All six convictions relate to incidents
reported by the children. The court imposed five concurrent sentences and one
consecutive sentence, for a total indeterminate prison sentence not to exceed
thirty-five years with a mandatory minimum of seventeen-and-a-half years in
prison. The father’s criminal appeal is still pending.
On September 23, the State filed a petition to terminate the father’s parental
rights. In a concurrent district court dissolution proceeding, legal custody and
physical care of the children were placed with the mother.
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Following a February 2022 termination hearing, the juvenile court
terminated the father’s parental rights under Iowa Code section 232.116(1)(f), (j),
and (m) (2021).
We review the termination of parental rights de novo, giving weight to the
juvenile court’s finding of facts. In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). In
our review, we consider the three steps outlined in Iowa Code section 232.116:
(1) whether the State’s evidence supports a ground for termination; (2) whether
termination is in the children’s best interests; and (3) whether any exceptions to
termination apply. In re M.W., 876 N.W.2d 212, 219–20 (Iowa 2016).
Grounds for termination. The father challenges each ground for
termination—Iowa Code section 232.116(1)(f), (j) and (m). He asserts under
paragraph “f” the children were never removed from their parents’ custody because
the mother still has custody; paragraph “j” cannot be met because there is “a fair
likelihood” that his case will be reversed on appeal and he will be released from
prison; and he had no notice of termination under paragraph “m” and his case is
still on appeal.
“When the juvenile court terminates parental rights on more than one
statutory ground, we may affirm the juvenile court’s order on any ground we find
supported by the record.” In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). We find
termination was proper under section 232.116(1)(j).
The juvenile court may terminate a parent’s rights under section
232.116(1)(j) if it finds both:
(1) The child has been adjudicated [CINA] pursuant to section
232.96 and custody has been transferred from the child’s parents for
placement pursuant to section 232.102.
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(2) The parent has been imprisoned for a crime against the
child, the child’s sibling, or another child in the household, or the
parent has been imprisoned and it is unlikely that the parent will be
released from prison for a period of five or more years.
Here, the children have been adjudicated CINA and the court ordered them
removed from the father’s custody. The father has been sentenced to thirty-five
years in prison for crimes against the children. Although his appeal is still pending,
he provides no authority to support his argument that paragraph “j” cannot apply
until the parent’s appeals have been exhausted leading to imprisonment. Nor do
we read such a requirement into the statute. Both elements for termination under
paragraph “j” have been met.1
Best interests. In a best-interests analysis, we “give primary consideration
to the child[ren]’s safety, to the best placement for furthering the long-term
nurturing and growth of the child[ren], and to the physical, mental, and emotional
condition and needs of the child[ren].” Iowa Code § 232.116(2). The father argues
because of the divorce decree and no-contact order, termination is unnecessary
because the children will be in the same situation whether the court terminates his
parental rights or not. He further suggests contact with his extended family is in
the children’s best interests and can serve as a safety net for them.
The juvenile court found the father was likely to attempt modification of any
court orders limiting his contact with the children as soon as he was legally able
1 Even if we found the second element of paragraph “j” had not been met due to
the father’s pending appeal, we have repeatedly rejected the father’s argument
regarding paragraph “f.” See In re N.D., No. 20-1407, 2021 WL 609067, at *2
(Iowa Ct. App. Feb. 17, 2021) (collecting cases allowing termination of parental
rights of noncustodial parent when legal custody is placed with the other parent).
The elements required for termination under section 232.116(1)(f) have been met.
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and found “the risk of the [father’s] extended family obtaining custody rights to the
children should a tragedy befall [the mother] is too great.” The father has been
convicted of sexually abusing the children. Allowing the legal bonds between the
father and the children to continue would not be best for the children’s safety;
nurturing and growth; or their physical, mental and emotional needs. Termination
of the father’s rights is in the children’s best interests.
Exception to termination. The father argues because the mother has
custody of the children, the court need not terminate his parental rights under Iowa
Code section 232.116(3)(a). The exceptions to termination “are permissive, not
mandatory.” M.W., 876 N.W.2d at 225. Their application is discretionary based
on the facts of the case and the best interests of the children. Id. The mother—
the children’s custodian—testified termination of the father’s rights is the best thing
for her and the children in moving their lives forward. Under these circumstances,
we decline to apply an exception to termination under section 232.116(3).
Reasonable efforts. The reasonable-efforts requirement is part of the
State’s proof a child cannot be safely returned to the parent’s care. In re L.M., 904
N.W.2d 835, 839 (Iowa 2017); In re C.B., 611 N.W.2d 489, 493 (Iowa 2000) (“[T]he
reasonable efforts requirement is not viewed as a strict substantive requirement of
termination.”). “[W]here the elements of termination require reasonable efforts by
DHS, the scope of DHS’s efforts after removal impacts the burden of proving those
elements.” In re L.T., 924 N.W.2d 521, 527 (Iowa 2019); accord C.B., 611 N.W.2d
at 493. Termination under section 232.116(1)(j) does not include an element
implicating the reasonable-efforts requirement. See In re A.B., No. 16-1578, 2016
WL 6902884, at *1 (Iowa Ct. App. Nov. 23, 2016).
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We affirm the termination of the father’s parental rights.
AFFIRMED.