In the Interest of D.B., Jr., Minor Child ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0790
Filed August 18, 2021
IN THE INTEREST OF D.B., JR.,
Minor child,
D.B., SR., Father,
Appellant,
MARTI D. NERENSTONE,
Guardian ad Litem, Appellant
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Charles D.
Fagen, District Associate Judge.
A father and the guardian ad litem for a minor child appeal the district court’s
order terminating the father’s parental rights. AFFIRMED.
Roberta J. Megel of State Public Defender’s Office, Council Bluffs, for
appellant father.
Marti D. Nerenstone, Council Bluffs, Guardian ad Litem for appellant minor
child.
Thomas J. Miller, Attorney General, and Meredith Lamberti, Assistant
Attorney General, for appellee State.
Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.
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SCHUMACHER, Judge.
A father and the guardian ad litem (GAL) for a minor child appeal the district
court’s order terminating the father’s parental rights. There is sufficient evidence
in the record to support termination of the father’s parental rights. The State
engaged in reasonable efforts to reunite the father and child. Termination of the
father’s parental rights is in the child’s best interests. The court properly
determined none of the exceptions to termination should be applied. Accordingly,
we affirm the decision of the district court.
I. Background Facts & Proceedings
D.B., father, and C.B., mother, are the parents of D.B., who was born in
2009. The family has a long history of involvement with the Iowa Department of
Human Services (DHS).1 The most recent DHS involvement with the family began
in April 2019, due to reports the mother was using methamphetamine while caring
for the child. The child was removed from the parents’ custody on June 14 and
placed with the maternal grandmother.2
On September 20, the child was adjudicated to be in need of assistance
(CINA), pursuant to Iowa Code section 232.2(6)(c)(2) and (n) (2019). The father
was ordered to complete substance-abuse and mental-health evaluations and
1 The parents have a history of drug use and domestic violence. Juvenile court
proceedings were initiated in June 2012, then closed in May 2013. Proceedings
were initiated again in December 2013, then closed in March 2015. New
proceedings were initiated in December 2016, and were closed in October 2018.
At times, the child was removed from the parents’ care during these prior court
proceedings.
2 By the time of the termination hearing, the child had been removed from parental
custody six times in a period of nine years.
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follow all recommendations. The father did not remain in contact with DHS or
participate in services. He did not attend court hearings.
The maternal grandmother reported that the father contacted her regarding
visits, but she refused and referred him to DHS. The father contacted DHS on
June 24, 2020. When a social worker attempted to contact him at the telephone
number he provided, the number was out of service. A DHS worker talked to the
father in August and he declined to participate in any services.
On November 16, the State filed a petition seeking to terminate the father’s
parental rights.3 The termination hearing was held on February 23, 2021. The
child was in shelter care due to behavioral problems. The court appointed special
advocate (CASA) testified the child was on an emotional roller coaster with the
father because the father would engage with him and bring him gifts, then let him
down. The CASA testified concerning stability and consistency for D.M. if the
father’s rights were terminated. A DHS worker testified the child could not be
placed with the father because there was insufficient information concerning the
father’s stability and parenting abilities.
The father testified that he believed he had a bond with the child. He stated
he was being treated for throat cancer and had other health problems. The father
asserted that he spent time with the child without the knowledge of DHS. He
testified he did not believe he needed supervised visitation and did not want to
have visits through DHS. The father indicated he did not need to participate in any
services. The father was living with a friend but stated he would get an apartment
3 The State did not seek to terminate the mother’s parental rights.
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if the child was placed in his care. He also stated the child could be placed with
the mother. The child, who was then eleven years old, testified that he did not
want the father’s rights to be terminated. The child stated he had a bond with the
father.
The district court terminated the father’s parental rights under section
232.116(1)(b), (e), and (f) (2020). The court found:
The father has been ordered to do various services, and he
has not complied with the services offered. The child has been out
of his parents’ care for nineteen of the last twenty-two months with
little improvement towards reunification. He continues to wait for his
father to engage in services. This child needs and deserves
permanency in his life.
The court also found, “This child could not be reunified with his father today, or in
the foreseeable future.” The court declined the father’s request for additional time
to work on reunification. The court determined the State engaged in reasonable,
but unsuccessful, efforts to reunify the child with the father. The court concluded
that termination of the father’s parental rights was in the child’s best interests. The
father and GAL appeal the district court’s decision.
II. Standard of Review
Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d
764, 773 (Iowa 2012). The State must prove its allegations for termination by clear
and convincing evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). “‘Clear
and convincing evidence’ means there are no serious or substantial doubts as to
the correctness [of] conclusions of law drawn from the evidence.” Id. Our primary
concern is the best interests of the child. In re J.S., 846 N.W.2d 36, 40 (Iowa
2014).
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III. Sufficiency of the Evidence
The father and GAL claim the State did not present sufficient evidence to
support termination of the father’s parental rights. “We will uphold an order
terminating parental rights where there is clear and convincing evidence of the
statutory grounds for termination.” In re T.S., 868 N.W.2d 425, 434 (Iowa Ct. App.
2015), as amended (Oct. 16, 2015). “When the juvenile court orders termination
of parental rights on more than one statutory ground, we need only find grounds
to terminate on one of the sections to affirm.” Id. at 435. We focus on the
termination of the father’s parental rights under section 232.116(1)(f).4
A. The GAL asserts the State did not present clear and convincing
evidence to support the third element, which is “[t]he child has been removed from
the physical custody of the child’s parents for at least twelve of the last eighteen
months, or for the last twelve consecutive months and any trial period at home has
been less than thirty days.” Iowa Code § 232.116(1)(f)(3) (emphasis added). The
GAL states the child was in a trial home placement with the mother from
September 8, 2020, until November 5, a period of fifty-nine days.
4 A parent’s rights may be terminated under section 232.116(1)(f) if the court finds:
(1) The child is four years of age or older.
(2) The child has been adjudicated a [CINA] pursuant to
section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least twelve of the last eighteen months, or
for the last twelve consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents
as provided in section 232.102.
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Section 232.116(1)(f)(3) presents two alternative tests. The circumstances
of this case may not come within the second alternative, as the trial home
placement with the mother was longer than thirty days. See id. However, the
circumstances come within the first alternative because the child was removed
from the parents’ custody on June 14, 2019, and the termination hearing was held
on February 23, 2021, twenty months later. Out of the last eighteen months before
the termination hearing, the child had been out of the parents’ custody for at least
twelve months. We conclude the State presented clear and convincing evidence
to support the third element of section 232.116(1)(f).
B. The father claims the State did not prove the fourth element—the
child could not be safely placed in his care. See id. § 232.116(1)(f)(4). We
consider whether the child could be returned at the time of the termination hearing.
In re D.W., 791 N.W.2d 703, 707 (Iowa Ct. App. 2010); In re C.W., 554 N.W.2d
279, 282 (Iowa Ct. App. 1996).
The DHS worker assigned to the case testified the child could not be placed
with the father at the time of the hearing because she did not have enough
knowledge of the father’s stability or parenting abilities. The father refused to
participate in any services, keep in contact with DHS, or attend supervised
visitation. The father did not attend any of the court hearings except the
termination hearing. Until he testified at that hearing, DHS workers did not even
know where the father lived. The district court highlighted the father’s “untreated
chemical dependency, untreated mental health problems, domestic abuse issue,
a lack of appropriate housing and employment, minimal compliance, criminal
activity and a lack of verification of commitment” remained after nineteen months
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of services. Given the father’s failure to participate in services to address these
problems, we conclude there is clear and convincing evidence in the record to
show the child could not be safely returned to the father’s care at the time of the
termination hearing. See Iowa Code § 232.116(1)(f)(4).
C. As part of his claims concerning the sufficiency of the evidence, the
father contends the State did not engage in reasonable efforts to reunite him with
the child. “Reasonable efforts to reunite parent and child are required prior to
termination of parental rights.” In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App.
1996). A determination of whether services offered are reasonable depends upon
the circumstances of the case. In re S.J., 620 N.W.2d 522, 525 (Iowa 2000).
The father’s petition on appeal does not specify what additional services
should have been offered to him, stating only “there was a failure of reasonable
efforts by DHS to reunite the family.” Services were offered to the father, but he
was unwilling to participate. Further, the father did not request any additional
reasonable efforts prior to the termination hearing. Rather, he declined to
participate in any offered services. Where a parent “fails to request other services
at the proper time, the parent waives the issue and may not later challenge it at
the termination proceeding.” In re C.H., 652 N.W.2d 144, 148 (Iowa 2002).
Similarly, we will not review a reasonable efforts claim unless it is raised prior to
the termination hearing. See T.S., 868 N.W.2d at 442; In re L.M.W., 518 N.W.2d
804, 807 (Iowa Ct. App. 1994) (stating that a party challenging reasonable efforts
must do so prior to the termination hearing).
The district court found, “Reasonable, but unsuccessful, efforts were made
to reunify the child with his father.” We conclude the services offered to the father
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were reasonable under the circumstances of the case and we find sufficient
evidence in the record to support termination of the father’s parental rights under
section 232.116(1)(f).
IV. Best Interests
The father and the GAL cite to section 232.116(2), which states termination
must be in a child’s best interests. In considering 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 needs of the child under section 232.116(2).” In re P.L., 778 N.W.2d 33,
41 (Iowa 2010). “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.” Id.The father and the GAL assert the court should have given more deference
to the child’s stated preference to maintain a relationship with the father. In a best
interest analysis, if a child has been placed with a foster family, the court should
consider “[t]he reasonable preference of the child, if the court determines that the
child has sufficient capacity to express a reasonable preference.” Iowa Code
§ 232.116(2)(b)(2); see also In re M.W., 876 N.W.2d 212, 224 (Iowa 2016). By its
terms, section 232.116(2)(b)(2) applies “If the child has been placed in foster care.”
See In re K.A., No. 18-0232, 2018 WL 1633524, at *3 (Iowa Ct. App. Apr. 4, 2018)
(emphasis added). The child was not in foster care at the time of the termination
hearing, and, therefore, section 232.116(2)(b)(2) does not apply.
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Furthermore, the court should consider whether a child’s preference is
reasonable under the facts of the case. See In re B.A.L., No. 12-1059, 2012 WL
3860816, at *4 (Iowa Ct. App. Sept. 6, 2012) (finding a child’s preference to live
with the father was not reasonable because he could not provide a safe
environment). The CASA assigned to this case testified:
But [the child] is up and down. His letdowns, when [the father] lets
him down, that emotional kind of roller coaster that [the child] goes
through, that weighed a lot into me thinking that it is in [the child’s]
best interest [to terminate parental rights] based on the past
relationship over the three years that I’ve seen.
She stated that terminating the father’s parental rights would provide more stability
and consistency for the child.
The father created a roller coaster of emotions for the child—sometimes
appearing in the child’s life and showering the child with gifts, then disappearing
for periods of time. The father was not able to provide the stability needed by the
child to help address the child’s behavioral problems. We conclude that
termination of the father’s parental rights is in the child’s best interests.
V. Exceptions
The father and GAL contend the district court should have decided to not
terminate the father’s parental rights based on the exceptions to termination found
in section 232.116(3). The court may decide to not terminate a parent’s rights if,
among other things, “[a] relative has legal custody of the child,” “[t]he child is over
ten years of age and objects to the termination,” or “[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(1)(a), (b),
(c).
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“The factors weighing against termination in section 232.116(3) are
permissive, not mandatory.” In re A.R., 932 N.W.2d 588, 591 (Iowa Ct. App. 2019)
(quoting In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App. 2011)). “The court
may exercise its discretion in deciding whether to apply the factors in section
232.116(3) to save the parent-child relationship based on the unique
circumstances of each case and the best interests of the child[ ].” Id. (citing In re
A.M., 843 N.W.2d 100, 113 (Iowa 2014)).
The district court did not address this issue, and we question whether it has
been preserved for our review. In re K.C., 660 N.W.2d 29, 38 (Iowa 2003) (“Even
issues implicating constitutional rights must be presented to and ruled upon by the
district court in order to preserve error for appeal.”); In re C.D., 508 N.W.2d 97,
100 (Iowa Ct. App. 1993) (“Matters not raised in the trial court, including
constitutional questions, cannot be asserted for the first time on appeal.”). A
motion pursuant to Iowa Rule of Civil Procedure 1.904(2) is essential to the
preservation of error when a trial court does not resolve an issue. In re A.M.H.,
516 N.W.2d 867, 872 (Iowa 1994).
Even if the issue had been properly raised, we find the evidence does not
support a finding that it would be in the child’s best interests to apply an exception
to termination. Although the child objected to the termination, as discussed above,
the relationship was not beneficial to the child due to the father’s lack of
consistency. The district court found the child did not have a close bond with the
father. The evidence does not show that the relationship is so close that it would
be appropriate to deny termination. Additionally, the child was not in the legal
custody of a relative. J.B.’s custody remained with DHS at the time of the
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termination hearing. We conclude the court properly did not apply an exception to
termination under section 232.116(3). We affirm the decision of the district court.
AFFIRMED.