In the Interest of L.M., Minor Child ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0301
Filed April 27, 2022
IN THE INTEREST OF L.M.,
Minor Child,
S.M., Father,
Appellant,
A.T., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Wapello County, William Owens,
Associate Juvenile Judge.
A mother and father separately appeal the termination of their parental
rights. MOTHER’S APPEAL AFFIRMED; FATHER’S APPEAL REVERSED AND
REMANDED.
Jonathan Willier, Centerville, for appellant father.
Julie De Vries of De Vries Law Office, PLC, Centerville, for appellant
mother.
Thomas J. Miller, Attorney General, and Mary A Triick, Assistant Attorney
General, for appellee State.
Sam K. Erhardt, Ottumwa, attorney and guardian ad litem for minor child.
Considered by Tabor, P.J., and Greer and Ahlers, JJ.
2
TABOR, Presiding Judge.
Parents, April and Stephen, appeal the termination of their legal relationship
with one-year-old L.M. Both parents contest the grounds for termination and
question whether the Iowa Department of Human Services (DHS) made
reasonable efforts toward reunification. April also argues termination of her rights
was not in L.M.’s best interests. In the alternative, each parent argues for
permissive exceptions to termination and seeks a six-month continued placement
for L.M.
After reviewing the record, we reach different outcomes for each parent.1
We affirm termination of April’s rights because her unaddressed addiction prevents
her from safely parenting L.M. But given Stephen’s success with services and
visitation while in prison, we find an extension is warranted in his case. So we
reverse and remand as to him.
I. Facts and Prior Proceedings
In July 2020, April tested positive for MDMA (ecstasy) and
methamphetamine just before delivering L.M. The newborn’s umbilical cord blood
tested positive for methamphetamine, amphetamines, and THC. At the hospital,
April identified Stephen as L.M.’s biological father.2 But April told the DHS that
they did not have an ongoing romantic relationship. Stephen tried to visit the
hospital, but he was turned away. Meanwhile, April agreed to a voluntary case
1 Termination reviews are de novo. In re M.D., 921 N.W.2d 229, 232 (Iowa 2018).
We give weight to the juvenile court’s fact findings, but they do not bind us. Id.2 Stephen’s status as L.M.’s biological father was later confirmed by paternity
testing. But at the time of L.M.’s birth, April was married to Jason. So Jason is
L.M.’s legal father. Jason is not a party to this appeal.
3
plan proposed by the DHS. That plan included family centered services (FCS) and
substance-abuse evaluation and treatment. As part of safety planning, April and
L.M. moved in with April’s aunt and uncle. In September, April, together with L.M.,
was admitted into Hope House, an addiction treatment center. But she stayed for
only five days before returning to her aunt’s home.
As for Stephen, about two weeks after his son’s birth, he met with DHS
workers. He said he wanted to see L.M., but that he was “letting April do her thing”
and did not “want to add something else to an already full plate.” 3 Stephen later
told the juvenile court that he regretted making that statement and should have
handled things differently.
By October 2020, the State petitioned to have L.M. adjudicated as a child
in need of assistance (CINA). After several continuances, the juvenile court
granted the State’s petition in March 2021 and removed L.M. from parental care,
assigning legal custody of the child to the DHS. The DHS continued the placement
of L.M. with his great aunt and uncle.
After L.M.’s removal, April charted inconsistent progress. Although she
showed initial interest in treatment, she lacked follow-through. The few times she
did start treatment, she stopped attending or was asked to leave before completing
the programs. True, April achieved short bursts of sobriety. But month in and
month out, April tested positive for illicit substances, self-reported using, or
appeared to be under the influence during visits with L.M.
3 At the time, Stephen was involved in a child-welfare case for his daughter, J.W.,
with a different mother. That case ended with the termination of Stephen’s parental
rights. The termination order in J.W.’s case, offered into evidence by the State,
emphasized Stephen’s failure to participate in services or visitation.
4
Likewise, April had mixed success with visitation. Early in the CINA
proceedings, she attended visits supervised by FCS or by her aunt. But during an
October 2020 visit at the aunt’s home, April “became upset and began punching
herself in the head.” Concerned, the aunt called the police. Eventually, April
admitted that she had relapsed. After that incident, April’s relationship with the
aunt soured. That souring led April to visit L.M. less often. April also backed away
from FCS-supervised visits, claiming they took too much of an emotional toll on
her. And, as termination neared, she stopped attending altogether.
As for Stephen, despite his full-plate comment, he had supervised visits with
L.M. from September 2020 until March 2021, when he started his prison sentence
for drug possession and criminal mischief. His commission of those offenses
predated L.M.’s birth. And according to the record, Stephen had the chance to
receive a deferred judgment or suspended sentence, but opted instead for prison.
Despite incarceration’s logistical challenges, Stephen remained part of
L.M.’s life. While in prison, Stephen has had weekly visits with his son—once per
month in-person and the rest by videoconference. The aunt has facilitated those
visits.4 While the FCS worker did not oversee those interactions, the case
manager testified that the DHS had “no reported concerns.” April also testified that
her aunt was supportive of Stephen’s relationship with L.M. Beyond visitation,
Stephen has profited from support groups and parenting classes while in prison.
4The DHS case manager explained: “[T]he provider has not been providing those
because we have limits on what can be provided per the contract now for families.”
5
The parole board was expected to consider his release in May 2022.5 After parole,
he expected to live with his sister, though a halfway house remained a possibility.
Concerned by April’s stalled progress and Stephen’s uncertain future, in
October 2021, the State petitioned to terminate their parental rights. After a
January 2022 hearing, the juvenile court granted the petition. They both appeal.
II. Analysis
Our review follows a three-step process. In re D.W., 791 N.W.2d 703, 706
(Iowa 2010). First we look for a termination ground. Iowa Code § 232.116(1)
(2021). Then we consider the child’s best interests. Id. § 232.116(2). And finally,
we examine factors weighing against termination. Id. § 232.116(3). Because each
parent challenges different steps, we discuss their appeals separately.
A. April’s Appeal
1. Grounds for Termination
The juvenile court terminated April’s rights under Iowa Code
section 232.116(1), paragraphs (g) and (h). April contests both paragraphs. We
focus on paragraph (h). See In re S.R., 600 N.W.2d 63, 64 (Iowa 1999) (“[W]e
need only find grounds to terminate under one of the sections cited by the juvenile
court.”). Under that paragraph, a juvenile court may terminate parental rights if:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least six months of the last twelve months,
5The parole board denied his release in November 2021, and according to the
State, he was eligible to apply again in six months.
6
or for the last six consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that the child
cannot be returned to the custody of the child’s parents as provided
in section 232.102 at the present time.
Iowa Code § 232.116(1)(h).
April only challenges the final element. She argues the State did not offer
clear and convincing evidence that L.M. couldn’t be returned to her custody.
Countering, the State points to April’s inability to address her addiction. Clear and
convincing evidence should leave us with “no serious or substantial doubts as to
the correctness or conclusions of law drawn.” D.W., 791 N.W.2d at 706 (citations
omitted). After our de novo review, we find clear and convincing evidence supports
the termination of April’s rights.6
That evidence starts with April’s drug use during her pregnancy, which
prompted the CINA adjudication. And, nearly two years later, her substance abuse
remains unaddressed. The DHS offered treatment services, ranging from out-
patient to residential options. But April did not succeed. In September 2020, she
was admitted to Hope House with L.M., staying less than one week. Come
6 Our case law offers two formulations for what it means that a child “cannot be
returned” to parental custody as provided in section 232.102 (discussing transfer
of a child’s legal custody if staying in the home would be “contrary to the welfare
of the child”). Many cases cite In re M.M., 483 N.W.2d 812, 815 (Iowa 1992) which
quotes section 232.102(4)(a)(2) (2021)—then numbered section 232.102(5)(b)—
for the proposition that custody should be transferred only if the court finds “the
child cannot be protected from some harm which would justify adjudication of the
child as a child in need of assistance and an adequate placement is available.”
See, e.g., In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App. 2016). But more recent
cases observe that our supreme court often describes that element simply as the
inability to “safely return” children to their parents’ care. See, e.g., In re T.W.,
No. 20-145, 2020 WL 1881115, at *2–3 (Iowa Ct. App. Apr. 15, 2020) (collecting
cases). Under either articulation, we find the State met its burden of proof.
7
December 2020, she tried again. But just two weeks passed before she was
“asked to leave by staff.” And the next year spelled more of the same. Indeed,
during the termination hearing, the case manager testified that April hadn’t
“engaged in any sort of substance abuse treatment in the last sixty days.” Without
treatment, her substance abuse continued unabated. In November 2021—just a
few weeks before the termination hearing and over a year into the proceedings—
April reported “using nearly daily.”
As for mental-health treatment, April registered for Eye Movement
Desensitization and Reprocessing therapy with several providers. But when these
providers tried to schedule an appointment, April never responded. All-in-all, April
only attended a handful of sessions during the life of these proceedings.
Most troubling, April stopped seeing L.M. At first, she regularly attended
visitations at the Four Oaks agency and at her aunt’s home. But with time April’s
visits tapered off. And, leading up to termination, April went ninety days with no
contact with L.M.7 From this record, we find clear and convincing evidence
supporting termination.
Pivoting slightly, April argues that the DHS failed to make reasonable efforts
toward reunification.8 The DHS must provide “every reasonable effort to return the
7 April tried to explain her absences. On the relative-placement side, she did not
feel welcome after her October 2020 relapse. As for Four Oaks, the visits were
too emotionally taxing. L.M. would cry as each visit ended; seeing her upset son
affected April. So, because it was “easier for [her],” she stayed away. April did
have “at least two interactions” with L.M. in January 2022.
8 In her petition on appeal, April uses this heading: “Reasonable Efforts to Reunify
Were Not Provided When the Termination Petition Was Filed Prior to the
Permanency Review Hearing.” Like the State, we understand that argument to be
a request to delay permanency, which we will address separately.
8
child to the child’s home as quickly as possible consistent with the best interests
of the child.” Iowa Code § 232.102(7). The State must show it has made
reasonable efforts to reunite the family as a part of its ultimate proof the child
cannot be safely returned to the parent’s care. In re L.T., 924 N.W.2d 521, 527
(Iowa 2019). That said, parents must voice timely objections if they view the
offered services as inadequate. In re A.N., No. 02-1985, 2003 WL 291627, at *3
(Iowa Ct. App. Feb. 12, 2003).
To support her reasonable-efforts argument, April points to the decreased
number of visits offered after the State petitioned for termination. But even before
that change, April’s attendance had waned. So it’s unclear how more chances to
interact would have helped reunification. See In re S.J., 620 N.W.2d 522, 525
(Iowa 2000) (noting that parents are only entitled to services that are “reasonable
under the circumstances”). The visitation offered by DHS was reasonable.
2. Best Interests
April next challenges the juvenile court’s best-interests findings.9 Statutory
factors guide that analysis. See, e.g., In re P.L., 778 N.W.2d 33, 37 (Iowa 2010).
We give primary consideration to L.M.’s safety, to the best placement for furthering
his long-term nurturing and growth, and to his physical, mental, and emotional
condition and needs. See Iowa Code § 232.116(2). With these principles in mind,
we believe termination of L.M.’s legal relationship with April is in his best interests.
From her pregnancy to the present, April’s drug use has endangered L.M. Her
9 The State argues “the exact parameters of what legal issues were raised below
by the parents are not clear,” so error was not preserved. But after reviewing the
record, we disagree and proceed to the merits.
9
addiction would continue to pose a risk to his safety if the parental bond were
preserved. See In re J.P., No.19-1633, 2020 WL 110425, at *2 (Iowa Ct. App. Jan.
9, 2020) (“[M]ethamphetamine use, in itself, creates a dangerous environment for
children.”). Outside of parental care, L.M.’s needs are being met at his great aunt’s
home. See Iowa Code § 232.116(2)(b) (considering integration into foster family).
We affirm the juvenile court on this second step of the termination process.
3. Factors Weighing Against Termination
April next claims the court should have decided against termination because
L.M. “resides with maternal relatives.” See Iowa Code § 232.116(3)(a) (allowing
court to forgo termination if “a relative has legal custody of a child”). She also
argues her bond with L.M. should have precluded termination. See id.§ 232.116(3)(c) (allowing court to preserve parent’s 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”). Proving these
exceptions was April’s burden. See In re A.S., 906 N.W.2d 467, 476 (Iowa 2018).
Because these exceptions are permissive, not mandatory, juvenile courts have
considerable discretion in their application. See In re A.M., 843 N.W.2d 100, 113
(Iowa 2014).
April’s evidence falls short. For paragraph (a), the record does not show
L.M. was in his great aunt’s “legal custody.” See id. But even if he were in relative
custody, the friction between April and her aunt weighs against this exception. As
for paragraph (c), April’s unaddressed addiction outweighs any detriment to L.M.
caused by terminating April’s rights. See D.W., 791 N.W.2d at 709. True, L.M.
cries when visitations end, and the FCS provider acknowledged a “strong bond”
10
between mother and son. But according to the same provider, such tears are a
common reaction for children his age. And April likely diminished that bond by
avoiding visitation for nearly three months. Bottom line, L.M. has spent two-thirds
of his eighteen-month-long life out of his mother’s care. See In re A.H., No. 17-
1717, 2017 WL 6513633, at *2 (Iowa Ct. App. Dec. 20, 2017) (rejecting close-bond
exception when children spent more than half their lives removed from parents.).
Under these facts, we decline to apply either of these section 232.116(3)
exceptions.
4. Continued Placement
Finally, April asks for six more months to become a safe parent. The
juvenile court may delay permanency if it can “enumerate the specific factors,
conditions, or expected behavioral changes which comprise the basis for the
determination that 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.” Iowa Code
§ 232.104(2)(b). But considering April’s inability to address her addiction, a delay
was unwarranted. See In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (noting “the
parent’s past performance” predicts “the quality of future care”). After eighteen
months, April still struggles with substance abuse and mental health. She
concedes on appeal that her progress was “minimal.” Given her record, like the
juvenile court, we have little confidence that she could be a stable caregiver in six
months.
11
B. Stephen’s Appeal
1. Grounds for Termination
As in April’s case, the juvenile court terminated Stephen’s rights under Iowa
Code section 232.116(1), paragraphs (g) and (h). But, unlike April, Stephen only
challenges paragraph (g). Because he “concedes the statutory grounds under
[paragraph (h)] were met,” we adopt the juvenile court’s decision on that ground.
See S.R., 600 N.W.2d at 64 (noting we may affirm on any ground cited by juvenile
court).
Next, Stephen challenges reasonable efforts. But Stephen does not
complain about the quality of services he received. To quote his petition on appeal:
“Here, the father is not arguing that the services he was offered were inadequate.
In fact, the services required of him were adequate and he completed all of them
successfully.” Instead, he insists the duration of the services was too short,
depriving him of time to regain custody. Because this argument sounds more like
a request for continued placement than a complaint about reasonable efforts, we
consider it under a separate heading.
2. Factors Weighing Against Termination
Like April, Stephen asserts that termination was unnecessary because L.M.
is “in a stable placement with relatives.”10 See Iowa Code § 232.116(3)(a). As
noted above, placement with relatives and “legal custody” are two different things.
10 Stephen also suggests that we consider paragraph (e) of section 232.116(3).
That provision allows a court to forgo termination if the parent’s absence is caused
by “commitment to any institution, hospital, or health facility.” Iowa Code
§ 232.116(3)(e). But we have long held that the legislature did not mean penal
institutions. In re J.S., 470 N.W.2d 48, 51 (Iowa Ct. App. 1991). So that exception
does not apply here.
12
Here, “DHS has legal custody.” In re A.B., 956 N.W.2d 162, 170 (Iowa 2021).
Although this exception is not in play, we find placement with the great aunt is
relevant to Stephen’s request for six more months to become a safe caregiver. We
address that request in the next section.
3. Continued Placement
Again like April, Stephen asks for more time to work toward reunification.
Unlike her case, we find merit in his request. As noted above, to continue
placement for six months, the juvenile court must determine the need for removal
will no longer exist at the end of the extension. See Iowa Code § 232.104(2)(b).
In making that prediction, the court must consider Stephen’s past performance.
See A.B., 815 N.W.2d at 778.
Granted, Stephen is no saint. He’s struggled with being a reliable parent in
the past, as shown by the prior termination of his parental rights. But in this case
we see real potential for Stephen to fulfill his role as father. By all accounts,
Stephen has taken these proceedings to heart and has made a genuine effort to
be united with his son. In February 2021, the DHS case manager observed
Stephen’s interaction with then seven-month-old L.M., describing the father as
attentive to the child’s needs and “bonded to him.”11 Even from behind bars, he
11According to DHS notes, Stephen often read books to L.M., took naps with him,
played on the floor with him, and held him on his lap while sitting near a window
because L.M. “appears to like watching what is going on outside.” And, during
some visits, Stephen would video chat with his mother so L.M. could see his
grandmother.
13
has maintained regular visits with L.M., both in-person and remote, thanks to the
diligence of L.M.’s aunt. Stephen describes making the most of their time together:
The in-person visits go well. We have limited things to do at Mount
Pleasant. First, he interacts with me. I hold him. I feed him. We
walk around the visiting room. And the video visits, I talk to him,
watch him play. He comes to the screen and talks to me with, you
know, babble and stuff. He knows a few words. He knows sign
language—he knows some things in sign language, and they go
pretty well for being through the video.
According to the case manager’s testimony, the aunt confirmed that the
interactions went well.
Visitations aside, Stephen has maximized all the, comparatively limited,
resources available to him while incarcerated. He’s enrolled in substance-abuse
support groups like Narcotics Anonymous (NA) and Alcoholics Anonymous(AA)—
even chairing the former. He’s also participated in parenting programs like DHS
101, Incarcerated Fathers, and 24/7 Dads. And he’s completed a behavioral
therapy program called MRT.12 And the case manager testified that if Stephen
were out of prison, he wouldn’t be ruled out as a placement option.
Beyond his personal growth, Stephen has proved to be a model inmate.
Prison officials took notice of his good behavior. On the strength of his record, in
November 2021 Stephen’s counselor secured him a “positive transfer” to the
Newton Correctional Facility. There, he is allowed more freedom, including the
12 MRT or Moral Reconation Therapy is described as “a systematic, cognitive-
behavioral, step-by-step treatment strategy designed to enhance self-image,
promote growth of a positive, productive identity, and facilitate the development of
higher stages of moral reasoning.” See Jeremiah Bourgeois, The Irrelevance of
Reform: Maturation in the Department of Corrections, 11 Ohio St. J. Crim. L. 149,
159 n.20 (2013) (quoting Dr. Gregory L. Little & Dr. Kenneth D. Robinson, How To
Escape Your Prison: A Moral Reconation Therapy Workbook (2006)).
14
option to do “off-grounds work.” Indeed, by the time of the termination hearing,
Stephen had begun applying for offsite jobs.
Despite this progress, the State argues against an extension, noting that
Stephen hasn’t shown he can maintain sobriety outside of prison. That may be
true.13 But Stephen has shown a commitment to NA and AA. He testified that his
work in those groups will help him stay clean, having had “time to practice the
steps” and learn to “take things one day at a time.” True, incarceration may have
“forced” Stephen into sobriety. But that’s no reason to discount his progress.
Particularly here. Stephen could have pursued a deferred judgment or suspended
sentence. But after self-reflection he chose incarceration because he “felt that it
was a faster way to be rehabilitated.” Even knowing it would prevent him from
being an immediate placement option for L.M., he picked an environment that he
believed would put him in the best position to succeed. Indeed, the case manager
confirmed Stephen exhausted all services available to him while in prison.
Like the case manager, we acknowledge the expectations for Stephen
would be “different” after his release. Although his progress under the
circumstances is commendable, Stephen’s efforts post-release must take on a
new form. Simply put, more than sobriety and a strong parent-child bond will be
needed. See A.S., 906 N.W.2d at 473 (examining whether child could be “safely
returned” to parental custody). So Stephen must take advantage of the additional
13Because he was incarcerated for a large portion of these proceedings, the extent
of Stephen’s need for substance-abuse treatment isn’t as clear as April’s. On the
one hand, in the termination order for J.W.’s case, the juvenile court found “no
evidence Stephen has a substance abuse problem.” On the other hand, Stephen
self-reported using in the past.
15
services the DHS offers him upon release.14 That said, Stephen appears up to the
task, having independently looked into treatment programs available “on the
streets” before the termination hearing. On balance, we find his behavioral
changes place him on a strong footing for reunification post-release.15
Moving from sobriety, the State stresses the uncertainty of Stephen’s
release date. The record shows he will be considered for parole in May and
possibly released in June 2023.16 Given his “positive move” from Mt. Pleasant to
Newton, the likelihood of that spring release is high. Yet even if that date is correct,
we understand that a portion of a six-month extension would still find Stephen in
prison, limiting his ability to showcase his parenting skills in the community.
Admittedly, the timing is not ideal.
But despite that time crunch, we find the juvenile court should have given
Stephen more time to show he could safely parent L.M. Stephen met his burden
to show the impediments to placing L.M. with him would not exist in six months.
See In re W.T., 967 N.W.2d 315, 323 (Iowa 2021). Indeed, if he continues the
good work he started in prison, Stephen will be drug free, employed, bonded to
L.M., and practicing his parenting skills in the community. And the continued
placement serves L.M.’s best interests.17 See id. If Stephen can fulfill his promise,
14 To name a few, the record shows that before his incarceration, the DHS
recommended substance-abuse evaluations, drug screenings, and mental-health
evaluations.
15 What’s more, Stephen’s arrangement at Newton which allows off-grounds work
is, in sorts, a dry run for release.
16 Stephen’s discharge date is June 2023.
17 As one commentator observed: “Meaningful efforts to reunify families are
made, not only because fairness demands it, but because it is also in the child’s
best interests.” Brent Pattison, Mama Tried: Shifting Thinking (and Practice) in
16
he will be the best placement for furthering L.M.’s long-term nurturing and growth.
See Iowa Code § 232.116(2).
We recognize similarities between this case and In re L.M., 904 N.W.2d
835, 840 (Iowa 2017), in which our supreme court found termination was in a
child’s best interests despite the mother’s “substantial progress” in prison on her
“rehabilitation journey.” But in L.M., the mother had no bond with the toddler and
the child needed immediate stability. Stephen’s case is different.
His case does not present a situation in which, if the plan fails, “all extended
time must be subtracted from an already shortened life for the child[] in a better
home.” See In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005). L.M. will stay
comfortably in the home of his great aunt and uncle. When asked what impact a
delay in permanency would have on L.M., the DHS case manager confirmed: “I
don’t think that anything would change.” She testified that given L.M.’s young age,
he “wouldn’t be affected negatively one way or the other if the time period was
extended by [a few] more months.”
Given his father’s promising conduct while in prison, we now find that L.M.’s
placement with his great aunt should continue for six months from the date of
procedendo while Stephen makes the behavioral changes necessary to resolve
the need for removal. During that extension, the DHS should provide Stephen with
Child Welfare Cases When A Parent Is Incarcerated, 27 Am. U. J. Gender Soc.
Pol’y & L. 495, 497 (2019).
17
visitation and other reasonable services to achieve reunification.
MOTHER’S APPEAL AFFIRMED; FATHER’S APPEAL REVERSED AND
REMANDED.
Greer, J., concurs; Ahlers, J., partially dissents.
18
AHLERS, Judge (concurring in part and dissenting in part).
I concur in the decision to affirm termination of the mother’s parental rights.
As to the majority’s decision to reverse the juvenile court’s ruling terminating the
father’s parental rights, I dissent.
While the majority makes a spirited case for why the father should be given
an additional six months to work toward reunification, two key circumstances
prevent me from joining the majority opinion. The first is the father’s lack of track
record of parenting. The father’s rights to another child were terminated. This
child has never been in his care. So, this is not a situation in which the father has
demonstrated an ability to parent and his prison time is just a temporary break in
that ability. If the father had ever shown an ability to be a placement option for the
child, speculating on his prison-release date and a quick return of the child to his
care may be more palatable. However, the father has not shown that ability. Given
the uncertainty whether the father even has the ability to be a viable placement
option contributes to my inability to join the majority’s conclusion that the father
should be given additional time.
The second circumstance that prevents me from joining the majority is the
relevant time horizon. Our court is reviewing this matter in April 2022. This gives
us a distorted view of the situation in comparison to that of the juvenile court, which
had to view the situation from the time of the termination hearing in January 2022.
See Iowa Code §§ 232.104(2)(b) (2021) (allowing an additional six months from
the time of the hearing), .117(5) (allowing orders in accordance with section
232.104 from the time of hearing). As our task is to review the juvenile court’s
decision, it is important to place ourselves in the juvenile court’s position. That
19
includes assessing the father’s prospects measured from January rather than
April. From that vantage point, I am convinced the juvenile court got it right.
At the time of the termination hearing, the father was in prison with no
possibility of release on parole until June 2022—five months into the father’s
requested six-month extension. Of course, it is speculative whether the father will
be granted parole in June. It is also unknown where the father will go upon his
release. The evidence was conflicting on whether he would be released to live at
a halfway house or with his sister. Even if the father is released in June to live with
his sister, the father will then need to demonstrate that he can maintain sobriety
and stability on an ongoing basis and that he is capable of caring for this young
child. In order to give a parent an additional six months to work toward reunification
requires us to have the ability to “enumerate the specific factors, conditions, or
expected behavioral changes which comprise the basis for the determination that
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.” Id. § 232.104(2)(b). The window being
assessed starts in January at the time of the termination hearing and ends in July.
To reach the decision made by the majority requires assuming that (1) the father
will be released from prison in June; (2) he will be released to live with his sister
rather than a halfway house; and (3) within one month’s time following his release
from prison, he will be able to show an ability to maintain sufficient ongoing
sobriety, stability, and parenting skills so the child can be safely placed in his care.
These “ifs” are way too big and too numerous to allow me to conclude that the
juvenile court erred in not granting the father an additional six months to work
toward reunification.
20
I agree with the majority that the father has done a commendable job of
participating in programs offered in prison. If he had a history of showing an ability
to parent, had an earlier (and more definite) parole date, or both, then I would be
in favor of giving him an additional six months to work toward reunification, and I
suspect the juvenile court would have been too. However, as those are not our
facts, I conclude the juvenile court was right not to grant the father an additional
six months. As the majority concludes otherwise, I respectfully dissent from the
decision to reverse the ruling terminating the father’s parental rights.