In the Interest of E.W., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 23-0178
Filed April 26, 2023
IN THE INTEREST OF E.W.,
Minor Child,
K.H., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Winneshiek County,
Linnea M.N. Nicol, District Associate Judge.
A father appeals the termination of his parental rights. AFFIRMED.
Kevin Stinn of Swartz Law Firm, PLLC, Waukon, for appellant father.
Brenna Bird, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Kristin R. Schiller Herman, Calmar, attorney and guardian ad litem for minor
child.
Considered by Tabor, P.J., and Schumacher and Ahlers, JJ.
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SCHUMACHER, Judge.
A father appeals the termination of his parental rights. He claims the State
did not establish a ground for termination, that termination is not in the child’s best
interests, and that the court should have applied an exception to termination due
to his bond with the child. He also asks for a six-month extension for reunification
efforts, and contends the Iowa Department of Health and Human Services (HHS)
failed to make reasonable efforts. We conclude the State established a ground for
termination and that termination of the father’s parental rights is in the child’s best
interests. We decline to apply an exception or grant a six-month extension. And
we conclude the father did not preserve his claim pertaining to reasonable efforts
and, even if he had, the claim lacks merit. We affirm.
I. Background Facts and Proceedings
E.W., who was born in March 2021, her two siblings, and her mother came
to HHS attention in early 2021 because of concerns over the mother’s substance
abuse.1 At the time E.W. was born, she tested positive for THC and Tramadol.
The mother was arrested in June after she was found with methamphetamine and
drug paraphernalia in the car with E.W. and another child. E.W. and the other
children were removed from the mother’s custody and subsequently adjudicated
as in need of assistance under Iowa Code section 232.2(6)(c)(2) (2021). Since
then, the siblings have resided together albeit at several different foster care
placements. They currently live with a foster family where they have resided since
1The three siblings each have a different father. The mother and two other fathers
had their parental rights terminated in these proceedings but do not appeal.
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June 2022. The children appear to be doing well in that placement, which has
expressed interest in adopting all three children.
Despite being informed by the mother that he was the father of E.W. early
on in the mother’s pregnancy, the father failed to undertake court-ordered paternity
testing until he was arrested in March 2022 on drug-related charges. That testing
confirmed he was the biological father of E.W. During the period leading up to his
arrest, the father reported daily use of methamphetamine. At the time of the
termination hearing, having violated his probation, the father was placed on the
corrections continuum to include placement at a residential treatment facility “for
one year or until maximum benefits are reached.” It is unclear when he will be
discharged from that facility. The father also had pending charges for operating
while intoxicated, third offense; possession of methamphetamine; possession of a
controlled substance, alprazolam; and unlawful possession of a prescription drug.
The father’s involvement in services has been very limited. He has only
attended three visits with E.W., which occurred in July and August 2022. He failed
to attend ten other visits offered in September and October, tracking a long history
of his lack of communication with HHS and lack of participation in services.
The State moved to terminate the father’s parental rights on
August 23, 2022. Following a hearing, the court terminated the father’s parental
rights under Iowa Code section 232.116(1)(e) and (f) (2022). The father appeals.
II. Standard of Review
We review the termination of parental rights de novo. In re P.L., 778 N.W.2d
33, 40 (Iowa 2010). As always, the child’s best interests remain “the first and
governing consideration” of this court. Iowa R. App. P. 6.904(3)(o).
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III. Discussion
The father raises several claims on appeal. He contends the State did not
establish a ground for termination. He asserts termination is not in the child’s best
interests due to his close bond with E.W. He also requests a six-month extension.
Finally, he claims HHS did not make reasonable efforts for reunification,
highlighting the lack of visits between himself and E.W.
A. Ground for Termination
The juvenile court terminated the father’s parental rights under Iowa Code
section 232.116(e) and (f). However, the termination petition, as amended, sought
to terminate the father’s parental rights under section 232.116(e), (h), and (l)—not
(f).2 The only substantive difference between (f) and (h) is the age of the child—
(h) being used for children three years old or younger, and (f) for children four
years or older. Our supreme court addressed a similar issue in In re M.W., 876
N.W.2d 212 (2016). The supreme court affirmed the termination of parental rights
on a ground raised by the State in its termination petition but which was omitted
from the juvenile court’s ruling. M.W., 876 N.W.2d at 221. Following the holding
of M.W., we consider (h) as a ground for termination in this appeal.
On appeal, the father only challenges the court’s findings as to (e). “When
a 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
2 The father did not raise this error to the district court and does not challenge it on
appeal. We also note the district court cited the correct statutory ground
throughout the body of the order and in the decree portion with respect to the
mother’s parental rights, which points to the use of 232.116(1)(f) as a typographical
error. But as noted, the father does not challenge this ground.
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record.” In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). Because the father does
not challenge the court’s findings under (f)—and by extension, (h)—we affirm as
to (h).3 See P.L., 778 N.W.2d at 40 (noting that when a parent does not dispute
the existence of a ground to terminate, we may affirm on those grounds). Even if
the father had contested this ground, on our de novo review, we determine the
State proved by clear and convincing evidence all the elements of the statutory
ground found in Iowa Code section 232.116(1)(h). E.W. is under the age of three,
she has been adjudicated a child in need of assistance, removed from parental
custody for at least the last six consecutive months, and could not be safely
returned home at the time of the termination hearing.
B. Best Interest of the Child and Statutory Exception
The father asserts termination is not in the child’s best interests. He claims
the State never introduced evidence suggesting he was an unsafe parent. “In
considering whether to terminate the rights of a parent under this section, the court
shall 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).
Upon our de novo review, we determine the termination is in the best
interests of E.W. It is true that in the three visits the father had with E.W., the
service provider did not note any safety concerns. But at the time of termination
the father was residing in a correctional facility. He did not have stable housing or
employment. While he claims to have been sober since March 2022, that only
3 Indeed, in the father’s closing argument to the juvenile court, the father conceded
that (h) “can likely be met.”
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occurred due to his imprisonment. There is no evidence he will be able to maintain
his sobriety upon his release. And he has only met the child three times. He
showed no interest in the child until paternity was established in March 2022—also
when he was imprisoned. The child is integrated into the foster family, recognizing
the foster family as her parents. See id. § 232.116(2). And the HHS caseworker
testified that it would be unlikely for the father to adopt E.W.’s siblings due to his
prior involvements in termination proceedings. As a result, declining to terminate
would require the siblings to be separated. See id. § 232.108(1) (explaining a
preference to keep siblings together). Termination is in E.W.’s best interests.
The father also claims the juvenile court should have declined to terminate
his parental rights because of the close bond he shares with the child. See id. §
232.116(3)(c). But the father has only met the child three times, and waited late in
the game to do so. After those three visits, he missed the next ten opportunities
to see the child leading up to the termination hearing. Given such limited contact
and the child’s young age, we cannot say termination of the father’s parental rights
would be detrimental to E.W.
C. Six-Month Extension
The father asks for a six-month extension for reunification efforts. A juvenile
court may decline to terminate parental rights and instead provide the parent a six-
month extension. See id. § 232.104(2)(b). To do so, the court must “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.
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Little suggests the need for removal will be rectified with an additional six
months. The father waited until he was imprisoned to comply with the court’s order
for paternity testing, and even then, only met E.W. three times in July and August
2022. He has not engaged in services, for reasons as simple as over-sleeping.
He currently resides in a correctional facility—the record does not indicate when
he will be released. Because the record does not support that the need for E.W.’s
removal will be rectified in six months, we determine the juvenile court properly
declined to grant a six-month extension.
D. Reasonable Efforts
The father claims HHS failed to make reasonable efforts to reunify the
family. In particular, he highlights the lack of visits between himself and E.W.,
blaming HHS for failing to coordinate visits and ensure he had transportation to
attend them. HHS has an obligation to provide reasonable efforts to reunify the
family. See id. § 232.102A(1)(a) (defining reasonable efforts). The need to make
reasonable efforts “covers both the efforts to prevent and eliminate the need for
removal,” and may include “visitation designed to facilitate reunification.” In re
C.B., 611 N.W.2d 489, 493 (Iowa 2000).
The father’s claim fails for two reasons. First, error was not preserved on
this issue. It is not enough to discuss an issue with HHS. Instead,
[w]hile the State has an obligation to provide reasonable services to
preserve the family unit, it is the parent’s responsibility “to demand
other, different, or additional services prior to the termination
hearing.” Complaints regarding services are properly raised “at
removal, when the case permanency plan is entered, or at later
review hearings.” 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.” Similarly, we will not
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review a reasonable efforts claim unless it is raised prior to the
termination hearing.
In re T.S., 868 N.W.2d 425, 442 (Iowa Ct. App. 2015) (internal citations omitted).
The father did not raise a challenge to the lack of reasonable efforts to the juvenile
court prior to the termination hearing. The father admits such in his briefing. And
the juvenile court found reasonable efforts had been provided by HHS in each
review order and permanency order. As a result, the matter is not preserved.
Second, the fault for the limited number of visits lies with the father. Service
providers testified that they attempted to contact the father numerous times to
establish visitation and other services, but the father would not respond. As
previously noted, the father was offered ten visits in September and October, but
failed to attend a single one. HHS has an obligation to offer reasonable services.
After that, it is incumbent upon the parent to utilize them. The father declined to
utilize the offered services. We affirm the juvenile court.
AFFIRMED.