In the Interest of C.Y.-e., Minor Child, C.E., Father

IN THE COURT OF APPEALS OF IOWA
No. 14-0981
Filed July 22, 2015
IN THE INTEREST OF C.Y.-E.,
Minor Child,
C.E., Father,
Appellant,
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Thomas J.
Straka, Associate Juvenile Judge.
A father appeals the termination of his parental rights. AFFIRMED.
Christopher M. Soppe, Dubuque, for appellant father.
Daniel McClean, of McClean & Heavens Law Offices, Dyersville, for
appellant intervenor.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Ralph Potter, County Attorney, and Joshua A. Vander Ploeg,
Assistant County Attorney, for appellee State.
Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, attorney and
guardian ad litem for minor child.
Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
2
DOYLE, J.
A father appeals the termination of his parental rights. We affirm.
I. Background Facts and Proceedings.
C.E. is the father and S.Y. is the mother of C.Y.-E., born in March 2012.
The child’s parents both have a history of substance abuse. The child tested
positive for oxycodone exposure at birth. At that time, the father was married to
N.E. Because the child’s mother was scheduled to serve a jail sentence shortly
after the child’s birth, the mother arranged that the child be cared for by the father
and N.E.
The father and N.E. married in 2007, and they had had marital problems
for some time. Prior to their marriage, the father and N.E. each had two founded
child-abuse reports in 2004 concerning another child for denial of critical care for
failure to provide proper supervision and presence of illegal drugs. The couple
tragically lost another child in an accident in 2011.
In June 2012, N.E. kicked the father out of their home. The father took the
child with him, and concerns were conveyed to the Iowa Department of Human
Services (DHS) regarding the father’s ability to care for the child safely. It was
reported the father had not given the child his medication as needed, had not fed
the child properly, and had driven with the child on his lap, among other things.
The DHS case worker noted the father “would use [the child] to get to [N.E.] so
that she would allow him back in the home. He knew that [N.E.] wanted to be a
part of [the child’s] life and would use that to get what he wanted.” Voluntary
services were offered to the family, and eventually the child and the father
resumed living with N.E.
3
In February 2013, N.E. served the father divorce papers, and the father
“responded poorly to this and threatened to harm himself,” barricading himself in
the bathroom with a gun. N.E. heard what sounded like a shotgun being loaded,
and she got out of the home and called 9-1-1; the child remained in the home.
After arriving, law enforcement officials attempted to talk the father into coming
outside for thirty to forty minutes with no response. The officers then went into
the home to locate the father to bring him and the child out safely, but the father
had somehow fled the home, leaving the child alone in the house. While
searching for the father in the home, officers found methamphetamine precursors
and drug paraphernalia in the basement. The father returned home and was
arrested and charged with child endangerment and possession of precursors. A
no-contact order between the father and the child was entered thereafter. The
child remained in N.E.’s care, but because the father was unable to care for the
child while N.E. was at work, N.E. had the father’s relatives care for the child
when she was unable to do so.
Both the father and the child’s hair tested positive for methamphetamine
thereafter. N.E.’s drug tests were negative for illegal substances. The DHS case
worker met with the father to discuss what plans he wanted to make for the child,
“as there was still a no-contact order in place and [N.E.] was wanting to move
forward with the divorce.” N.E. joined the discussion, and though N.E. had been
the child’s primary caregiver since the child’s birth, the father
talked about having [the child] go and stay with [his relatives], so he
could move back into the house with [N.E.]. He had stayed there
two other nights when [the child] was with [his relatives]. [N.E.] said
she didn’t want [the father] at the house, but wanted to be part of
[the child’s] life. [N.E.] acknowledged that [the father] would use
4
[the child] as a “pawn” to get what he wanted because he knew
how attached [N.E.] is to [the child]. [The father] said if [N.E.] was
going to go ahead with the divorce, he should leave [the child] with
[his relatives]. The conversation did not go well. [N.E.] was
emotional and upset that [the father] was talking about moving [the
child] just because he wanted to hurt her. [The father] got upset
with [N.E.] wanting to divorce him and losing his family. . . .
[The father] did agree to sign a safety plan to agree to leave
[the child] in the care of [his relatives] until . . . [the relatives] could
arrange visitation with [N.E.].
The child has remained in the relatives’ care since that time.
In March 2013, the State filed a petition asserting the child was a child in
need of assistance (CINA), and a pre-hearing conference was set for the
following month. The DHS case worker and service provider both noted the
father went “back and forth about identifying [N.E.] as a caregiver for [the child].”
At times he supported N.E. having visitation with the child, including overnight
visits, only to change his mind and refuse N.E. visits with the child. Just before
the pre-hearing conference, the DHS case worker reported the father indicated
he wanted the child “to have contact with [N.E.], but not regular contact.” Though
the service provider discussed with the father the role N.E. had played in the
child’s life “and how no contact or inconsistent contact could negatively impact
[the child],” the father “did not appear to care.” Service providers had pointed out
to the father that he had “a history of using [the child] to get to [N.E.] or get what
he want[ed] from [N.E.],” but the father “typically ha[d] no response.” Since N.E.
was not the child’s biological mother and the father did not want N.E. to have
interactions with the child at that time, the DHS stopped visits between N.E. and
the child.
5
Following the prehearing conference, the juvenile court entered a pre-
hearing order directing that the child “be removed from parental custody and
placed in the care, custody, and control of the [DHS] for appropriate . . . relative
placement.” The court also determined N.E. should have visitation with the child,
and visits between N.E. and the child resumed.
The child was adjudicated a CINA in May 2013, and at the time of the
adjudication hearing, both the mother and the father were incarcerated. The
father remained in jail until the end of July 2013. While he was in jail and after
his release, the father was offered services for reunification. However, by
September 2013, the father was “on the run” with a warrant out for his arrest and
federal charges pending. Between the time of his release and mid-September,
he had had only two interactions with the child through the service provider, and
though he could have gone to the relative caregivers’ home to have additional
visits with the child, he did not. Around the same time period, N.E. and the
father’s divorce was finalized.
In December 2013, the DHS case worker recommended the father’s
parental rights be terminated. The case worker explained she did “not feel that
[the father] could take care of himself, let alone a child. There [were] significant
mental health issues as well as substance abuse issues that [had] not been
addressed.” Thereafter, the State in January 2014 filed a petition seeking
termination of the father’s and mother’s parental rights. The child’s guardian ad
litem also recommended termination of the parents’ parental rights, and the
county foster care review board supported the recommendation.
6
Hearing on the State’s petition was held in May 2014. At that time, the
father was again incarcerated, awaiting sentencing after having pled guilty to two
counts of possession of precursors with intent to manufacture methamphetamine
and one count of manufacturing methamphetamine. The father testified that
pursuant to his plea agreement, the State was recommending he be placed in a
residential correctional facility, but he would be requesting the sentencing court
grant him a deferred judgment. The father testified that the best case scenario if
he was placed at the facility was his release in three months, and even with the
State’s recommendation, the court could still impose a prison sentence of up to
twenty years. The father admitted that since the case began in February 2013,
he had only had three or four visits with the child and had not seen the child in
seven months. Nonetheless, he testified he had no concerns if the child was
placed in the care of N.E. or the mother, who was living with N.E. at that time.
He believed either would allow him to see the child “once he [got] through [his]
legal issues.”
Following the hearing, the juvenile court entered its order terminating the
parents’ parental rights. The father now appeals.1 We review his claims de
novo. See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014).
1
We note that on June 23, 2015, the Iowa Supreme Court filed an order
concerning this case and N.E.’s related appeals in appellate case numbers 14-0554 and
14-1419, explaining:
The father filed a notice of appeal and a petition on appeal
following the termination of his parental rights. [N.E.] also filed a notice of
appeal and petition on appeal in the same appellate case number. This
court determined [N.E.’s] appeal was interlocutory[, renumbered her
interlocutory appeal as number 14-0554,] and denied [N.E.’s] request [for
interlocutory] appeal. Based on that order the clerk of the supreme court
issued procedendo and this entire appeal was closed by the appellate
clerk’s office. A review of this file indicates that the procedendo should
7
II. Discussion.
In determining whether parental rights should be terminated under chapter
232 (2013), the juvenile court “follows a three-step analysis.” See In re D.W.,
791 N.W.2d 703, 706 (Iowa 2010). Step one requires the court to “determine if a
ground for termination under section 232.116(1) has been established” by the
State. Id. If the juvenile court finds grounds for termination, the court moves to
the second step of the analysis: deciding if the grounds for termination should
result in a termination of parental rights under the best-interest framework set out
in section 232.116(2). Id. at 706-07. In making this determination, the primary
considerations are the children’s safety, their best placement for furthering their
long-term nurturing and growth, and their physical, mental, and emotional
conditions and needs. Iowa Code § 232.116(2) (2013). Even if the juvenile court
finds “the statutory best-interest framework supports termination of parental
rights,” the court must proceed to the third and final step: considering “if any
statutory exceptions set out in section 232.116(3) should serve to preclude
termination of parental rights.” D.W., 791 N.W.2d at 707.
On appeal, the father asserts the State failed to prove the grounds for
termination of his parental rights, and termination of his parental rights was not in
the child’s best interests, among other things. We address his arguments in turn.
only have applied to [N.E.’s] attempt [for interlocutory appeal in number
14-0554] filed on June 13, 2014. The court finds the father’s appeal from
the termination of his parental rights is still pending before this court. This
appeal shall be transferred immediately to the court of appeals for
disposition.
The father’s case was then transferred to this court the same day.
8
A. Grounds for Termination.
The grounds for termination must be proved by clear and convincing
evidence. Iowa Code § 232.116(1); see also D.W., 791 N.W.2d at 706. When
the juvenile court terminates parental rights on more than one statutory ground,
we may affirm on any ground we find supported by the record. D.W., 791
N.W.2d at 707; In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct. App. 1995). Here,
the juvenile court found the State proved the grounds under Iowa Code
subsection 232.116(1) paragraph (e) and (h). We choose to address the latter
ground.
Iowa Code section 232.116(1)(h) provides parental rights may be
terminated if the court finds by clear and convincing evidence that (1) the child is
three years of age or younger, (2) has been adjudicated a CINA, (3) has been
removed from the physical custody of his parents for at least six months of the
last twelve months, and (4) there is clear and convincing evidence that the child
cannot be returned to the custody of the child’s parents at the present time. The
father does not challenge that the first two elements were proved. However, he
argues the statutory use of the word “parents” in Iowa Code section 232.116(1),
in its plural form, requires removal of the child from all of the child’s parents.2
Because, as his argument goes, the child was never removed from N.E.’s
2
Though Iowa Code section 232.116(1) subsections (e) and (h) both use the
word “parents,” the father only challenges subsection (e)’s use of the word. Because we
need only affirm on one ground, we could ignore his argument as to subsection (e) and
address only his explicit challenge to subsection (h), that the child could have been
returned to his care. See R.R.K., 544 N.W.2d at 276; see also Hyler v. Garner, 548
N.W.2d 864, 870 (Iowa 1996) (“[O]ur review is confined to those propositions relied upon
by the appellant for reversal on appeal”); In re D.S., 563 N.W.2d 12, 15 (Iowa Ct. App.
1997) (finding principles of res judicata barred a father who failed to appeal a juvenile
court order from raising the challenge on appeal). Nevertheless, we choose to address
it because the argument lacks merit.
9
custody, the State did not prove element three. Additionally, he argues the State
failed to prove the child could not be returned to his custody. Upon our de novo
review, we find the State met its burden.
Iowa Code section 232.2(39) defines the word “parent” as a biological or
adoptive parent.3 It does not include the word stepparent, which is mentioned in
a separate subsection under the definition of “custodian,” whose rights are
“subject to any residual rights and duties remaining in a parent or guardian.” See
Iowa Code § 232.2(11)(a)-(c); see also In re J.C., 857 N.W.2d 495, 501, 504
(Iowa 2014). Here, the State established the child was removed from the
custody of his biological parents within the statutory time frame. We find that it
met its burden as to element three.
Additionally, the father asserts that “[w]ithin a few days after the
termination hearing [he] was released from custody.” However, this assertion is
outside the closed record, and there was no evidence at the hearing that the
father would be immediately released. Therefore, we cannot consider it on
appeal. See State v. Weiland, 202 N.W.2d 67, 69 (Iowa 1972) (noting appellate
courts cannot consider facts that are outside of the record). Regardless, the
father did nothing to work toward reunification with the child during the case. He
excuses his lack of participation during the proceedings because he was
incarcerated, and he further declares “[t]here was nothing in the record that the
child could not be returned to [his] care.” While conviction of a crime and
resulting imprisonment do not necessarily result in termination of parental rights,
3
See our opinion filed today in the related case, In re C.Y.-E., No. 14-1419 (July
22, 2015), concerning N.E.’s appeal following the post-termination-placement hearing.
10
incarceration cannot justify a parent’s lack of relationship with the child. See In
re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993). Here, the father’s incarceration is a
result of his own actions, and he did nothing in the short amounts of time during
the case when he was not incarcerated to evidence that he had any interest in
addressing his substance abuse or mental health issues or, frankly, parenting the
child. He had not even seen the child in at least seven months at the time of the
termination-of-parental-rights hearing, and the father was incarcerated at the time
of the hearing. There is no question the child could not be safely returned to the
father’s care at the time of the termination hearing. Accordingly, we agree with
the juvenile court that the State proved the ground for termination of parental
rights found in section 232.116(1)(h).
B. Best Interests and Other Considerations.
The father’s remaining arguments all concern N.E. The father asserts
termination of his parental rights was not in the child’s best interests because the
child could be placed with N.E., arguing there was a sibling bond between the
child and N.E.’s children. He weaves his argument into a claim that the juvenile
court erred in finding “no consequential factors weigh[ed] against termination,”
claiming that at the time of the termination-of-parental-rights hearing, the child
was in the custody of two relatives.
At the time of the termination-of-parental-rights hearing, the child had
been in the care of the fathers’ relatives for sixteen months. Moreover, it was at
the father’s request, perhaps against the child’s best interests at that time, that
the child was placed with his relatives because he was mad at N.E., even though
at that time she had been the child’s primary caregiver. The father’s behavior
11
throughout the case evidences his lack of insight into the needs of a young child
and his unwillingness to put someone else’s needs before his own. At the time of
the termination hearing, the child had been thriving in the care of the fathers’
relatives and was in need of permanency. Though it is unclear if the child is
bonded with his stepsiblings, there is no question he was bonded with N.E.
However, he was also bonded with the fathers’ relatives and their children.
Regardless, neither relationship concerns the father’s parental rights. We agree
with the juvenile court that termination of the father’s parental rights is in the
child’s best interests.
Finally, the father maintains it was error to terminate his parental rights
“because the child was in the custody of a relative,” citing Iowa Code section
232.116(3)(a). He maintains the child was in the custody of both N.E. and his
relatives. This is factually incorrect. As of April 2013, the juvenile court removed
the child “from parental custody and placed [the child] in the care, custody, and
control of the [DHS] for appropriate . . . relative placement.” (Emphasis added.)
This means custody was placed with the DHS, not a relative. See Iowa Code
§ 232.116(3)(a); see also A.M., 843 N.W.2d at 112, 113 (noting that although
A.M. was in the care of her grandparents, she was not in their legal custody
making section 232.116(3)(a) inapplicable). Consequently, section 232.116(3)(a)
is inapplicable in the present case. See id.
III. Conclusion.
For the foregoing reasons, we affirm the juvenile court’s ruling terminating
the father’s parental rights.
AFFIRMED.