IN THE COURT OF APPEALS OF IOWA
No. 16-1878
Filed January 25, 2017
IN THE INTEREST OF B.P.,
Minor Child,
D.P., Father,
Appellant.
______________________________________________________________
Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor,
District Associate Judge.
A father appeals the termination of his parental rights. AFFIRMED.
Judd J. Parker of Parker Law Office, Clinton, for appellant father.
Thomas J. Miller, Attorney General, and Katherine S. Miller-Todd (until
withdrawal) and Mary A. Triick, Assistant Attorneys General, for appellee.
Taryn R. Purcell of Blair & Fitzsimmons, P.C., Dubuque, guardian ad litem
and attorney for minor child.
Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Tabor,
J., takes no part.
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BOWER, Judge.
A father appeals the order terminating his parental rights.1 He claims the
evidence was insufficient to support termination, he should have been granted
additional time to resume care of the child, and termination is not in the child’s
best interests. We find the evidence was sufficient to terminate, the juvenile
court properly denied additional time, and termination is in the child’s best
interests. Accordingly, we affirm.
I. Background Facts and Proceedings
B.P. was born in May 2015 and removed from his parents’ care in
December. The Iowa Department of Human Services (DHS) had been providing
services to the parents; however, the parents became uncooperative. A couple,
not B.P.’s parents, brought B.P. to DHS, stating they were his primary caretakers
and the only time his parents had B.P. was when DHS had planned to visit. The
couple also reported both parents were active methamphetamine users and the
parents had not returned to see B.P. for a month. A Child in Need of Assistance
(CINA) proceeding commenced at the end of December.
The father was granted visitation, which he intermittently exercised. It
should also be noted that the father signed up for substance-abuse treatment but
did not attend the initial appointment. He also missed drug testing, did not follow
the parenting plan put forward by DHS, and was hostile to both the foster parents
and DHS. In April, a police report indicated domestic violence occurred between
the mother and father, but the mother did not pursue charges. While the father
stated this was the first such incident, the mother reported abuse had occurred in
1
The mother has withdrawn her appeal.
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the past. In May, the father was jailed for violating a no-contact order with the
mother.
In August a report was filed stating the father did not have stable housing
or work, had not addressed any substance-abuse or mental-health issues since
being released from jail, was not attending parenting sessions, and was
displaying aggression toward the provider. The termination hearing was held
September 20, and October 18, 2016. At the hearing the father testified he was
in a relationship with the mother, was employed, had begun substance-abuse
treatment, and had scheduled a mental-health evaluation. The father’s rights
were terminated and he now appeals.
II. Standard of Review
The scope of review is de novo in termination cases. In re D.W., 791
N.W.2d 703, 706 (Iowa 2010). Clear and convincing evidence is needed to
establish the grounds for termination. In re J.E., 723 N.W.2d 793, 798 (Iowa
2006). Where there is clear and convincing evidence, there is no serious or
substantial doubt about the correctness of the conclusion drawn from the
evidence. In re D.D., 653 N.W.2d 359, 361 (Iowa 2002). We give weight to the
juvenile court’s findings of fact, but are not bound by them. In re C.B., 611
N.W.2d 489, 492 (Iowa 2000). The highest concern in termination proceedings is
the best interests of the child. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990).
III. Sufficiency of the Evidence
The father claims there was insufficient evidence to support the
termination of his parental rights pursuant to Iowa Code section 232.116(1)(h)
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and (i) (2015). “On appeal, we may affirm the juvenile court’s termination order
on any ground that we find supported by clear and convincing evidence.” D.W.,
791 N.W.2d at 707. In order to terminate parental rights under section
232.116(1)(h), (1) the child must be three years old or younger, (2) the child must
have been adjudicated in need of assistance, (3) the child must have been
removed from the home for at least six of the last twelve months, or for the last
six consecutive months with any period at home being less than thirty days, and
(4) the child cannot be returned to the home as provided in section 232.102.
The father claims the child could have been returned to the home at the
time of the termination hearing. However, at the time of the termination hearing
the father had made little progress in addressing the underlying issues in the
case. He had been arrested several times, had been in jail for violating a no-
contact order, had only recently obtained a substance-abuse evaluation, had
scheduled a mental-health evaluation for two months in the future, and had only
attended a small number of the visits with B.P. While the father did make
progress in addressing some issues, his efforts “are simply too late.” See C.B.,
611 N.W.2d at 495. Changes “in the two or three months before the termination
hearing, in light of the proceeding . . . months, are insufficient” for us to find real
and lasting change has taken place. See id.
At the time of the hearing the father lived with the mother in her mother’s
house. He claims “[the mother] had a sufficient home for B.P. to return to; he
had tested clean for illicit drug use, was employed, and was attending the
case-plan-required services at the time of the Permanency and Termination of
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Parental Rights hearings. B.P. should have been returned to their care at that
time . . . .” The claim fails as the father cannot argue facts pertaining to the other
parent in an effort to reverse the termination of his own rights. See In re D.G.,
704 N.W.2d 454, 460 (Iowa Ct. App. 2005). Therefore, the acceptable housing
the mother had at the time of the termination does not mean the child could be
returned to the father’s home at the time of the termination hearing. We find the
juvenile court properly terminated the father’s parental rights under section
232.116(1)(h).
IV. Additional Time
The father also claims the juvenile court improperly denied his request to
be given an additional six months to work toward resuming care. Iowa Code
section 232.104(2)(b) requires a juvenile court to find the causes of the removal
would no longer exist at the end of the extension period in order to grant the
extension. Only after being released from jail did the father begin to actively and
meaningfully participate in the case plan.
After his release the father became employed (although the juvenile court
had some suspicion the hours the father claimed to have worked were not
accurate) eventually obtained a substance-abuse evaluation, and scheduled an
appointment for a mental-health evaluation. He testified during the termination
hearing it would take between three and six months for B.P. to be able to return
to his care, as he was currently working to secure an apartment, finish substance
abuse treatment, and complete a mental-health evaluation. However, the father
still failed to participate in a majority of the visits offered to him. In October, DHS
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filed a report expressing concerns the father was behaving aggressively during
visits, becoming “hostile,” “irate,” and “obnoxious” when his demands were not
met.
The juvenile court found “all actions of the [father] indicate that additional
time will not make it possible for the [child] to be returned to either parent at any
time in the near future.” We agree. The sudden change in his desire to properly
parent, while admirable, is still insufficient to prevent termination. The progress
required of the father is outside his ability to make meaningful change.
V. Best Interests
The father also claims termination is not in the best interests of B.P. After
finding a ground for termination exists we are to “consider the factors under
section 232.116(2). Section 232.116(2) requires us to 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.” In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (internal quotation
marks and citations omitted).
We find B.P.’s best interests are served by termination. The father has
failed to participate in the case plan except for a flurry of efforts in the last weeks
before termination. Additionally, the father has failed to attend a large majority of
the visits extended to him. He has been arrested, violated a no-contact order,
and, as the juvenile court stated, is “unable to handle the responsibility and
needs” of B.P. Termination is clearly in the best interests of the child.
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VI. Exceptions
Finally, the father claims his bond with the child is so strong as to preclude
termination. The juvenile court may decide not to terminate parental rights if any
exception set out in Iowa Code section 232.116(3) is shown. “The court has
discretion, based on the unique circumstances of each case and the best
interests of the child, whether to apply the factors in this section to save the
parent-child relationship.” In re D.S., 806 N.W.2d 458, 475 (Iowa Ct. App. 2011).
The mother testified “[B.P. is] more about his father than he is me.” The care
coordinator testified there was a bond between the parents and the children.
There was also testimony by the mother that B.P. cries when visitation is over.
We do note, as discussed above, the father became aggressive and angry at the
end of the visits, often demanding back clothes or toys from the foster parents,
and so, while termination will cause some emotional distress for B.P., the
increased stability in a home equipped and willing to care for him serves his best
interest more than the continuing uncertainty of the father’s care.
AFFIRMED.