IN THE COURT OF APPEALS OF IOWA
No. 15-1765
Filed December 23, 2015
IN THE INTEREST OF B.K. AND J.K.,
Minor Children,
B.K., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, David F.
Staudt, Judge.
A father appeals the juvenile court’s termination of his parental rights to
his children, B.K. and J.K. AFFIRMED.
Robert M. Bembridge of Swisher & Cohrt, P.L.C., Waterloo, for appellant
father.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant
Attorney General, for appellee State.
Timothy Baldwin of the Juvenile Public Defender’s Office, Waterloo,
attorney and guardian ad litem for minor children.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.
A father appeals the juvenile court’s termination of his parental rights to
his children, B.K. and J.K. He argues the court erred when it failed to authorize a
six-month extension of the proceedings pursuant to Iowa Code section
232.104(2)(b) (2015). He also argues the court should have placed more
emphasis on keeping his children placed together and placing them with a
relative. We conclude on our de novo review that the evidence before the
juvenile court did not support a determination that the need for removal of the
children from their home would no longer exist after an additional six months.
We further conclude that termination of the father’s parental rights was supported
by clear and convincing evidence and the placement of the children took into
account the best interests of the children. We therefore affirm.
I. Background
The father has two children by the same mother, B.K. and J.K. B.K. was
born in 2009. J.K. was born in 2011. The mother also has an older child, Z.W.,
whom the father treated as his child. Z.W. factors into the father’s argument on
appeal, although the termination case we now review does not directly deal with
that relationship. The family has had a history of involvement with the Iowa
Department of Human Services (DHS) and the juvenile court system. The
children have been removed from the parents’ home three times since 2012,
most recently on May 7, 2014. The children have remained out of the parents’
home since that time. Various DHS services have been offered to the family
since the children were adjudicated to be children in need of assistance on
August 27, 2012.
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The father is currently in prison, serving a twenty-one-year sentence. He
has been continuously incarcerated since just prior to the children’s most recent
removal. He had not seen his children for one and one-half years at the time of
the September trial of the State’s petition for termination of parental rights. The
father was sentenced on January 5, 2015, on multiple counts: six separate
counts of theft in the third degree, one count of burglary in the third degree, and
one count of felon in possession of a firearm. He will be eligible for parole in
either December 2015 or January 2016, although the record is somewhat
conflicting on this point. Either way, the father’s incarceration has lasted for the
duration of the children’s most recent removal, and accordingly he has not had
any face-to-face contact with them during that time period. By all accounts, he
has been consistently involved in his children’s lives to the extent that one can be
while in prison, participating in regular phone conversations and mailing his
children letters, drawings, and DVD recordings of himself reading books aloud to
them.
However, there is no guarantee the father will be granted parole when he
goes before the parole board. Furthermore, he has a long history of trouble
when not in the controlled environment of prison. He has a criminal record that
by his own description is “horrible looking,” and has been in prison before. He
has some mental health problems and has had significant substance abuse
issues involving opiates, methamphetamine, and marijuana that appear to have
ceased only because of his incarceration. In the past, he has intentionally
falsified the results of drug tests, going so far as to use a “Whizzinator”—a
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prosthetic penis with a reservoir used to provide clean urine samples consisting
of urine that is either someone else’s or synthetic.
When he is paroled, significant time and services would be required to
ensure the safety of the children in his care. On this point, a social worker from
DHS testified at the permanency review and termination hearing held on
September 3, 2015. She recommended termination of the father’s parental
rights:
ASSISTANT COUNTY ATTORNEY: Do you think it’s in the
children’s best interests to wait until—and give him additional time
to see if he’s, in fact, paroled and then comes into the community to
be a parent for [B.K.] and [J.K.]? DHS SOCIAL WORKER: No, I do
not.
ASSISTANT COUNTY ATTORNEY: Why not? DHS
SOCIAL WORKER: He’s serving a twenty-one-year sentence and
he’s—at this point I think he’d be a year-and-a-half, maybe a little
more than a year-and-a-half into that sentence and I don’t—there’s
no guarantee that he would be paroled. I think additional time is
going to prolong the inevitable. If he gets out—Let’s say that he
were to get out in December, that would still not give him adequate
time to address the issues that we would need to see addressed to
safely return the children to his care.
ASSISTANT COUNTY ATTORNEY: Do you think it would be
difficult to—Even if he was granted the time and was out in January
or December, do you think it would difficult to know what is what
given his admission of attempts to deceive in the past? DHS
SOCIAL WORKER: I do think that he has—he has really opened up
and been much more honest since he has been incarcerated. I
don’t know if that would continue if—if he were not under strict
supervision. I don’t know. That’s hard to answer.
At the same hearing, the father testified by telephone and was asked how much
time he thought he would need in order to establish that his children could be
returned to his care. His answer echoed the estimation of the time necessary for
reunification voiced by the DHS social worker:
ASSISTANT COUNTY ATTORNEY: It was your testimony I
need more time. How much time do you need? THE FATHER: I
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need to be released in potentially sixty more days. Now I know
there’s not a guarantee, the parole board has the final say, but my
counselor is pretty confident that I will be released. And then I
need, you know, ninety days to six months to show the state clean
UAs, counseling, and mental health.
On October 8, 2015, the juvenile court issued an order terminating the
parental rights of both the father and the mother to B.K. and J.K.1 With respect
to the father specifically, the juvenile court stated as follows:
[The father] was incarcerated prior to the latest removal of
the children. He has not had face-to-face contact with his children
in over one-and-a-half years because of his imprisonment. He has
attempted to maintain contact through writing and telephone calls.
There are no services available in prison for [the father]. At this time
he is unavailable as a parent. He has been ordered to serve a
sentence that is up to twenty-one years in prison. He has served
approximately a year-and-a-half of that sentence. It is possible that
he could be paroled in December of 2015 or January of 2016.
There is no certainty that he will be paroled. [The father] has
recorded videos of himself providing a personalized reading of a
children’s book while incarcerated.
Prior to [the father]’s imprisonment, the Department of
Human Services had concerns about his substance abuse
problems, domestic violence problems, and the stability of his
mental health. It is clear that prior to his entry in the prison system,
he made little effort to address his substance abuse issues as he
was using methamphetamine and submitted adulterated drug tests.
There were allegations of domestic violence. There is no
assurance that upon his release that he will not return to his prior
life of consuming methamphetamine and domestic violence. The
Court is also concerned that it will not be in the children’s best
interests to wait for [the father] to be released on parole to
determine if he could be placement for the children. Should [the
father] return in January, he would be on parole and would not be a
potential placement for at least six months to a year depending
upon his behavior and whether he lives a drug-free lifestyle.
The juvenile court then explained its reasons for terminating the father’s parental
rights:
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The mother also had her parental rights terminated as to Z.W., but she has not
appealed the termination of her parental rights as to any child.
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The Court concludes the State has established by clear and
convincing evidence that the parental rights of [the father] should
also be terminated. [The father] has been incarcerated for over the
last year-and-a-half. Although he has maintained contact with his
children, there is no clear and convincing evidence at the present
time that the children could be returned to the custody of [the
father]. Should [the father] be paroled in January of 2016, he would
not be able to establish a placement for the children within the six
month time frame required under the permanency statute. [The
father] also has no proven track record of being a successful
parent. He has accusations of domestic violence, admissions of
drug use, and protective assessment summaries for denial of
critical care to his children on two occasions. When not
incarcerated, [the father] has failed to address his substance abuse
issues, his mental health issues, and his violent tendencies. The
Court finds that pursuant to Iowa Code § 232.116(1)(f) that the
children have been out of [the father]’s custody pursuant to the
statuted [sic] time frames and that there is clear and convincing
evidence that at the present time the children cannot be returned to
the custody of the children’s parent, in this case [the father].
The father appeals.
II. Standard of Review
We conduct a de novo review of proceedings terminating parental rights.
In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). An order terminating parental
rights will be upheld 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). Evidence is “clear and convincing” when there are no serious or
substantial doubts as to the correctness of conclusions drawn from it. Id. We
give weight to the factual determinations of the juvenile court, particularly
regarding the credibility of witnesses, although we are not bound by them. Id.
The primary consideration of our review is the best interests of the child. In re
A.B., 815 N.W.2d 764, 773 (Iowa 1012).
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III. Analysis
Termination of parental rights under Iowa Code chapter 232 follows a
three-step analysis. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). First, the
court must determine if a ground for termination under section 232.116(1) has
been established. Id. Second, if a ground for termination is established, the
court must apply the framework set out in section 232.116(2) to decide if
proceeding with termination is in the best interests of the child. Id. Third, if the
statutory best-interests framework supports termination of parental rights, the
court must consider if any statutory factors set forth in section 232.116(3) should
serve to preclude termination. Id.
The father does not argue that the juvenile court lacked clear and
convincing evidence to terminate his parental rights pursuant to Iowa Code
section 232.116(1)(f). Instead, he argues that the juvenile court should have
invoked Iowa Code section 232.104(2)(b) in order to authorize a six-month
extension of the children’s placement after the permanency hearing to give the
father additional time to meet the requirements of the case plan. Section
232.104(2)(b) allows a juvenile court to:
[e]nter an order pursuant to section 232.102 to continue placement
of the child for an additional six months at which time the court shall
hold a hearing to consider modification of its permanency order. An
order entered under this paragraph shall 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.
Granting a parent additional time under this statutory subsection is one of several
options available to a juvenile court following a permanency hearing; it is not a
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matter of right. See Iowa Code § 232.104(2)(b); In re H.L., No. 14-0708, 2014
WL 3513262, at *3 (Iowa Ct. App. July 16, 2014). Moreover, the express
language of the statute requires a court granting such an extension to make a
determination that the need for removal will no longer exist at the end of the six
months. In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005). Finally, a judge
considering a six-month extension under the statute should “constantly bear in
mind that, if the plan fails, all extended time must be subtracted from an already
shortened life for the children in a better home.” Id. at 92–93.
We find on our de novo review that the juvenile court appropriately
decided against granting the father an additional six months. Given the father’s
ongoing incarceration, with the date of his release being speculative, the juvenile
court could not make the determination that the need for the removal of the
children would cease to exist at the end of a six-month extension. Even if the
court had been provided a definite release date, then additional time would be
required to ensure the father’s success in staying away from drugs and further
criminal activity.
Finally, we address the father’s contention that the juvenile court should
have done more to ensure the B.K. and J.K. were placed with Z.W. and that all of
the children should have been placed with relatives. The father is correct that
there is a statutory preference for placing siblings together, mandating that if a
court orders the transfer of custody of siblings for placement, then DHS or
whatever other agency receives custody “shall make a reasonable effort to place
the child and siblings together in the same placement.” See Iowa Code
§ 232.108(1). He is also correct that placing children with relatives is considered
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one of the least restrictive placement options, and that courts “shall make the
least restrictive disposition appropriate considering all the circumstances of the
case” following dispositional hearings. See Iowa Code §§ 232.99(4),
232.102(1)(a)(1).
However, we do not believe that the placement of the children in this
instance runs contrary to the best interests of the children, or that the juvenile
court or DHS failed to adhere to their statutory responsibilities. Z.W. was placed
separately from B.K. and J.K. only after behavioral problems necessitated that
result, and the record does not suggest any viable relative placement options
available for B.K and J.K. An aunt who was a potential placement option
withdrew herself from consideration after a home study found significant issues
with her suitability, and the father’s brother and sister-in-law who were presented
as another option late in the process did not follow through with the necessary
home study. Testimony before the juvenile court indicated that the children were
all doing exceedingly well in their placements. We find that the juvenile court’s
denial of an extension and ordering termination of the father’s parental rights
were in the best interests of the children.
AFFIRMED.