In the Interest of R.H., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 22-0690
Filed June 29, 2022
IN THE INTEREST OF R.H.,
Minor Child
R.H., Father,
Appellant
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan Cox, District
Associate Judge.
A father appeals the termination of his parental rights, arguing there was
insufficient evidence to support the statutory ground the juvenile court relied on for
termination and that termination is not in the child’s best interest. AFFIRMED.
Stephen K. Allison of Stephen Allison Law, PLLC, Des Moines, for appellant
father.
Jamie F. Deremiah, Des Moines, for appellee mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Erin Romar of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor child.
Considered by Bower, C.J., and Schumacher and Ahlers, JJ.
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SCHUMACHER, Judge.
A father appeals the termination of his parental rights, arguing there was
insufficient evidence to support the statutory ground the juvenile court relied on for
termination and that termination is not in the child’s best interest. We find clear
and convincing evidence supports the termination of the father’s parental rights.
We also find termination is in the child’s best interest. We affirm.
I. Background Facts & Proceedings
This family came to the attention of the Iowa Department of Human Services
(DHS) because the child, born in December 2018, was exposed to the mother’s
substance abuse during pregnancy. The child’s umbilical cord was positive for
amphetamines and methamphetamine. The child was removed from parental
custody and placed with the maternal grandmother. The child was adjudicated a
child in need of assistance (CINA) in April 2019, pursuant to Iowa Code section
232.2(6)(c)(2), (n), and (o) (2019). DHS did not initially have concerns about the
father, whose relation to the child was confirmed by paternity testing. The father
engaged in services, including mental-health therapy, following a July 2019
permanency hearing.
The father committed an act of domestic abuse assault against the mother
in August 2019. He pled guilty and was placed on probation. As a condition of
probation, the father was required to complete a thirty-six week course, the Iowa
Domestic Abuse Program (IDAP). He successfully completed the program and his
probation, although his probation officer noted that the father tended to be
untruthful about his relationship with the mother. While the father was in therapy
3
from July 2019 through March 2020, domestic violence was not addressed
because the father maintained it was not an issue.
Custody of the child was transferred to the father in January 2020 subject
to a transition plan. Up to that point, the father had been successfully following
DHS recommendations. A six-week plan was put in place to close the case
through a bridge order.1 However, the CINA case never closed because issues
arose regarding the father not following guidelines about contact with the mother.
DHS remained concerned about some of the child’s behavior. Relatedly, the father
began to decline recommended services. For instance, the father reported that
the child was having night terrors but refused the offered services to address the
issue. The father also pulled the child out of daycare, which the DHS social worker
testified would negatively impact the child’s development. The father explained
1 To qualify for a bridge order, certain criteria must be met. Section 232.103A
provides:
1. The juvenile court may close a [CINA] case by transferring
jurisdiction over the child’s custody, physical care, and visitation to
the district court through a bridge order, if all of the following criteria
are met:
a. The child has been adjudicated a [CINA] in an active
juvenile court case, and a dispositional order in that case is in place.
b. Paternity of the child has been legally established, including
by operation of law due to the individual’s marriage to the mother at
the time of conception, birth, or at any time during the period between
conception and birth of the child, by order of a court of competent
jurisdiction, or by administrative order when authorized by state law.
c. The child is safely placed by the juvenile court with a parent.
d. There is not a current district court order for custody in
place.
e. The juvenile court has determined that the [CINA] case can
safely close once orders for custody, physical care, and visitation are
entered by the district court.
f. A parent qualified for a court-appointed attorney in the
juvenile court case.
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his decision by citing safety concerns involving the COVID-19 virus. There were
also concerns about how the father’s anger toward the child would escalate when
the child would cry. And concerns remained over the father’s domestic violence.
As a result, the focus of the case as it pertained to the father shifted to working on
his mental health and domestic violence.
Despite DHS recommendations to continue therapy, the father stopped
attending in March 2020. He was discharged due to reaching maximum benefits.
The father blamed his lack of participation in therapy on losing his insurance. In
May, the father perpetrated another act of violence against the mother, hitting her
with a bathroom door. No criminal charges resulted from the incident. The DHS
social worker assigned to the family at the time testified that they were not
concerned for the child’s safety then and that the father was providing minimally
adequate parenting. Concerns remained related to the child’s emotional well-
being, most evident by the child experiencing night terrors.
The father committed another act of domestic violence against a woman in
front of the child in March 2021. An altercation ensued with the police, which
resulted in the father requiring medical treatment at a hospital. Once he was
discharged, he returned to the woman’s apartment despite a no-contact order and
threatened to kill her. The incident resulted in the father pleading guilty to domestic
abuse assault and interference with official acts resulting in bodily injury. He was
again placed on probation and required to complete another course of IDAP. At
the time of trial, he had completed six of the required thirty-six classes.
The child was removed from the father’s custody in March and placed back
with the maternal grandmother, where he remained for the rest of the proceedings.
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The father had two supervised visits a week and also exercised additional visits
supervised by his sister. He was consistent in his supervised visitation with the
child.
The father and DHS had a tenuous relationship, particularly following the
failure of the January 2020 six-week transition plan. The DHS social worker that
worked with the family until August 2021 testified that monthly meetings sometimes
“escalated very quickly” even when the child was present. Such behavior
intensified concerns about the father’s ability to manage his anger. On at least
one occasion, DHS employees had to terminate a phone call because the father
was “escalating.” This coincided with the father’s refusal of all services until late
September or early October 2021 when he reengaged with therapy. The therapist
indicated that the father had good attendance and participation following
reengagement but had problems taking responsibility for his actions.
The father began a relationship with a woman in May 2021. That woman
was involved with DHS due to substance abuse and unsafe conditions for children
at home related to an unsanitary environment. He moved in with her around July,
and they are now engaged. The woman’s DHS case was closed in October.
Questions arose at trial over potential substance abuse by the father. He
had a prescription for hydrocodone due to back pain and fibromyalgia. He tested
positive for morphine in December 2020. It is unclear from the record before us
whether hydrocodone could result in a positive drug test for morphine. A DHS
social worker testified that there were behavioral indicators of substance abuse in
the summer of 2021, including the father appearing very thin, being unable to sit
still, and having dilated eyes. He also refused a hair drug test, resulting in a
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presumptive positive test. His probation officer testified, however, that he did not
have facts before him that would suggest the father used illegal substances.
The State filed a petition to terminate the mother’s and father’s parental
rights in December 2021. In particular, the State cited the father’s unresolved
issues with substance abuse, mental health, and domestic violence. Following the
hearing, the court terminated both parent’s rights pursuant to Iowa Code section
232.116(1)(h) (2021). The father appeals.2
II. Standard of Review
“We review proceedings to terminate parental rights de novo. We give
weight to the juvenile court’s factual findings, especially when considering the
credibility of witnesses, but we are not bound by them.” In re A.B., 815 N.W.2d
764, 773 (Iowa 2012) (internal citation omitted) (quoting In re H.S., 805 N.W.2d
737, 745 (Iowa 2011)). “We will uphold an order terminating parental rights if there
is clear and convincing evidence of grounds for termination under Iowa Code
section 232.116.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).
III. Discussion
The father appeals the juvenile court’s ruling, alleging the State did not
establish a ground for termination. He also claims termination is not in the child’s
best interests.3
We use a three-step analysis to review termination of parental rights. In re
A.S., 906 N.W.2d 467, 472 (Iowa 2018). “First, we ‘determine whether any ground
2The mother does not appeal the termination of her parental rights.
3The father’s petition on appeal does not separate his best-interest argument from
his statutory-grounds argument. But we choose to address the best interest
argument under Iowa Code section 232.116(2).
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for termination under 232.116(1) has been established.’” Id. at 472-73 (quoting In
re M.W., 876 N.W.2d 212, 219 (Iowa 2016)). If a ground is established, we must
determine whether termination is in the child’s best interest under section
232.116(2). Id. at 473. Finally, we consider whether an exception to termination
under 232.116(3) exists. Id. Because the father does not allege an exception to
termination is applicable, we need not consider that step of our analysis. See In
re P.L., 778 N.W.2d 33, 40 (Iowa 2010).
A. Statutory Ground for Termination
The father claims insufficient evidence exists to support the juvenile court’s
decision to terminate his parental rights under section 232.116(1)(h).4 In particular,
the father contends that the State did not provide clear and convincing evidence
that the child could not be returned to his custody.5 Termination is appropriate
under section 232.116(1)(h) when returning the child to the custody of the parent
4 Section 232.116(1)(h) provides for termination of parental rights when:
(1) The child is three years of age or younger.
(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 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.
(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.
5 The State argues the father’s request for an immediate return of the child to his
custody is unpreserved because he only argued for a six-month extension at trial.
See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (explaining that
appellate review is generally limited to matters raised and decided at the trial court
level). While the father did testify as the State suggests, he also argued for an
immediate return of the child in his written closing argument. In any event, given
the important interests involved, we address the father’s argument challenging the
statutory grounds.
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would result in adjudicatory harm “at the present time,” which means at the time of
the termination hearing. In re A.M., 843 N.W.2d 100, 111 (Iowa 2014). Thus, to
the extent the father claims DHS wrongfully failed to follow the case plan set out
at the January 2020 dispositional hearing to return custody of the child in six
weeks, the matter is moot because we must determine if the child could be safely
returned at the time of the termination hearing in January 2022, not two years prior.
The juvenile court found the child could not safely be returned due to the
father’s ongoing issues with mental health, domestic violence, and a lack of a
protective capacity toward the child. The father highlights that past performance
by a parent may be indicative of future behavior. See In re M.S., 519 N.W.2d 398,
400 (Iowa 1994). He suggests his roughly fifteen months with the child from
January 2020 through March 2021 shows he is capable of safely parenting.
However, such a conclusion overlooks significant portions of the record before us.
First, the father has had three instances of domestic violence since the case
began, two of which resulted in criminal convictions. The second prosecuted
incident occurred after the father completed a thirty-six week IDAP course. And
while the father contends he has made improvements in regulating his behavior,
he refused to take responsibility for the second offense at the termination hearing,
largely denying the factual basis for the convictions and alleging he only pled guilty
to get the process over with. See In re D.D., 955 N.W.2d 186, 193 (Iowa 2021)
(noting the importance of acknowledging abuse before meaningful change can
occur).
While the father’s physical violence has not been directed at the child, that
does not mean his actions are without consequence. Our supreme court has
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recognized many detrimental effects on children living in domestically violent
households, including an increased risk of becoming a victim of abuse, decreased
social competency, and the potential for post-traumatic stress disorder. In re L.H.,
904 N.W.2d 145, 153 (Iowa 2017); see also In re J.R., No. 17-0556, 2017 WL
2684405, at *3 (Iowa Ct. App. June 21, 2017) (“Children raised in homes touched
by domestic abuse are often left with deep scars, revealed in the form of increased
anxiety, insecurity, and a greater likelihood for later problems in interpersonal
relationships” (quoting In re Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct.
App. 1994))).
The domestic violence is indicative of the father’s mental-health issues,
which generally relate to the father’s inability to manage his emotions and anger.
Testimony revealed the father had a tumultuous relationship with DHS that at times
caused him to become “very escalated” with providers, sometimes in front of the
child. He became angry easily with his child when the child was upset or crying.
While he was discharged from therapy for reaching maximum benefits in March
2020, that therapy did not address his issues relating to domestic violence. And
the father did not reengage in therapy until late September 2021.
We agree that the father lacks the protective capacity necessary to return
the child to his care. Despite the father identifying behavioral concerns about the
child, including night terrors, the father failed to search for or obtain appropriate
resources for resolving the issue. He also began a new relationship with a woman
in May who had her own DHS case related to substance abuse and an unsafe
household. The father’s choice to engage in that relationship despite the evident
risks it would pose to his child demonstrates a lack of protective capacity.
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Finally, the father testified that he could not regain custody now. He
indicated that he had additional work to do on his mental health and regulating his
emotions, as well as needing more time to prepare a home. Because section
232.116(1)(h) requires us to consider whether the child could be returned “at the
present time,” we find the juvenile court correctly found clear and convincing
evidence supporting termination.
B. Best Interest of the Child
The father also claims that termination would not be in the child’s best
interest. When considering the best interest of the child, 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
condition and needs of the child.” Iowa Code § 232.116(2).
Termination is in the child’s best interest. The father has unresolved issues
involving mental health and domestic violence that place the child at risk. He also
lacks the protective capacity to ensure the child’s long-term safety and growth.
Moreover, the child is particularly vulnerable given his young age. The child has
spent roughly half of his young life in the care of his maternal grandmother. The
child has done well developmentally in this placement and the placement is willing
to adopt the child. See Iowa Code § 232.116(2)(b). Termination is in the child’s
best interest.
AFFIRMED.