IN THE COURT OF APPEALS OF IOWA
No. 16-2098
Filed March 8, 2017
IN THE INTEREST OF A.F.,
Minor Child,
D.F., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marion County, Steven W. Guiter,
District Associate Judge.
A father appeals the juvenile court decision terminating his parental rights.
AFFIRMED.
Kevin E. Hobbs of Kevin Hobbs, Attorney at Law, West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Dawn M. Bowman of Bowman Law Office, Pleasantville, guardian ad litem
for minor child.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.
A father appeals the juvenile court decision terminating his parental rights.
We find the father’s parental rights were properly terminated under Iowa Code
section 232.116(1)(h) (2016). There was clear and convincing evidence the child
had been removed from the parents’ care for at least six months and the child
could not be safely returned to the father’s care. We also find termination of the
father’s parental rights is in the child’s best interests. We affirm the decision of
the juvenile court.
I. Background Facts & Proceedings
D.F., father, and N.R., mother, are the parents of a child born in 2014.
The father participated in caring for the child for about one year after she was
born. The child was removed from the parents’ care on September 14, 2015,
after the mother tested positive for methamphetamine. The father was in the
Newton Correctional Facility at the time.1 The child was placed in the care of the
maternal grandmother.
The parties stipulated the child was in need of assistance (CINA) pursuant
to Iowa Code section 232.2(6)(c)(2) (2015), which provides for CINA adjudication
when a child has suffered or is imminently likely to suffer harmful effects due to
the parents failure “to exercise a reasonable degree of care in supervising the
child.” On May 4, 2016, the juvenile court modified the dispositional order to
place the child in “another suitable placement,” along with one of the child’s half-
siblings.
1
The father’s probation for theft in the second degree was revoked on May 20, 2015,
due to a conviction for possession of drug paraphernalia.
3
On April 22, 2016, the father was placed in a half-way house in Burlington.
He obtained employment. He participated in a substance abuse evaluation and
completed an extended outpatient treatment program. The father was released
from the half-way house on September 6, 2016. He was currently living with a
woman who had some prior involvement with the Iowa Department of Human
Services. The father participated in two authorized visits with the child and had
one unauthorized interaction. He had telephone contact with the child both while
he was in prison and the half-way house.
On September 8, 2016, the State filed a petition seeking termination of the
parents’ rights. After the hearing, the juvenile court entered an order on
December 2, 2016, terminating the father’s parental rights under section
232.116(1)(d) and (h) (2016). The court found services had been offered to the
father and he did not participate in the services. The court also found the child
could not be safely returned to the father’s care at the current time. The father
now appeals the juvenile court order terminating his parental rights.2
II. Standard of Review
The scope of review in termination cases is de novo. 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). The paramount
2
The mother’s appeal of the termination order was dismissed.
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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 is not sufficient evidence in the record to support
termination of his parental rights under section 232.116(1)(d) or (h).
A. Section 232.116(1)(d) provides a parent’s rights may be terminated
on the ground if:
The court finds that both of the following have occurred:
(1) The court has previously adjudicated the child to be a
child in need of assistance after finding the child to have been
physically or sexually abused or neglected as the result of the acts
or omissions of one or both parents, or the court has previously
adjudicated a child who is a member of the same family to be a
child in need of assistance after such a finding.
(2) Subsequent to the child in need of assistance
adjudication, the parents were offered or received services to
correct the circumstance which led to the adjudication, and the
circumstance continues to exist despite the offer or receipt of
services.
“The grounds for a CINA adjudication do matter.” In re J.S., 846 N.W.2d
36, 41 (Iowa 2014). The phrases “physical abuse or neglect” or “abuse or
neglect” mean “any nonaccidental physical injury suffered by a child as the result
of the acts or omissions of the child’s parent, guardian, or custodian or other
person legally responsible for the child.” Iowa Code § 232.2(42). The Iowa
Supreme Court has noted a CINA determination under section 232.2(6)(c)(2)
cannot lead to a termination of parental rights under section 232.116(1)(d)
because an adjudication under section 232.2(6)(c)(2) does not require a finding
of physical abuse or neglect. See J.S., 846 N.W.2d at 41.
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We determine the father’s parental rights could not be properly terminated
under section 232.116(1)(d) because there was no evidence the child suffered a
“nonaccidental physical injury.” See In re M.W., 876 N.W.2d 212, 220 (Iowa
2016) (finding termination of parental rights under section 232.116(1)(d) could
not be supported in the absence of a finding the child suffered a “nonaccidental
physical injury”).
B. Under section 232.116(1)(h), a parent’s rights may be terminated
on the ground if:
The court finds that all of the following have occurred:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of
assistance 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.
There is clear and convincing evidence in the record to show the child,
who was born in 2014, was younger than three at the time of the termination
hearing in 2016. See Iowa Code § 232.116(1)(h)(1). Also, there had been a
CINA adjudication pursuant to section 232.96. See id. § 232.116(1)(h)(2).
In his petition on appeal, the father states, “In the instant case, A.F. was
not removed from D.F.’s custody and it was never alleged that D.F. neglected or
abused A.F.” The Iowa Supreme Court recently determined termination
provisions requiring a finding “[t]he child has been removed from the physical
custody of the child’s parents,” require a change from physical custody to lack of
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physical custody.3 In re C.F.-H., 889 N.W.2d 201 (Iowa 2016). The court stated,
“the statute ensures that before termination occurs under these subsections, a
parent has had a chance at physical custody in the past that has been
unsuccessful.” Id. In C.F.-H., the parties agreed the child had always been in
the mother’s custody and had never been in the father’s custody. Id. at 208. The
father claimed he had not been informed removal of the child from the mother
could impact his parental rights. Id. at 205. The court disregarded, “the notion
that mere lack of physical custody is sufficient to satisfy the statutory requirement
of ‘removal of physical custody.’” Id. at 208.
In the present case, the father testified, “I was with her every night for her
first year, you know, a little over her first year taking care of her. Made sure she
had her bath every day.” He testified he stayed with the child as long as he could
before his most recent incarceration. The child was born in February 2014. The
father testified he used drugs until December 2014 or January 2015, and stated,
“It was right before I ended up going in.” The father’s probation was revoked due
to a conviction for possession of drug paraphernalia in May 2015. He stated he
had telephone contact with the child while he was in prison and the half-way
house. The father testified he planned to take care of the child after he was
released from the half-way house.
We determine the child was removed from the father’s care, as required
by section 232.116(1)(h)(3). Unlike the father in C.F.-H., the father here had
been caring for the child until the time of his incarceration, a few months before
3
The court was examining sections 232.116(1)(e)(2) and (f)(3), which contain removal
provisions similar to section 232.116(1)(h)(3). See C.F.-H., 889 N.W.2d at 205.
7
the child was removed from the parents’ care. If not for the removal order, the
father would have been able to resume care of the child when he was released
from the half-way house in September 2016. He had a chance at parenting the
child. See id. at 207. We also note the adjudication order provided, “The parents
are informed that the consequences of a permanent removal may include
termination of the parent’s rights with respect to the children.” Cf. id. at 205
(noting the father claimed he had not been informed removal of the child from the
mother could impact his parental rights). Finally, here the child was removed
from the care of the mother, unlike the child in C.F.-H. The C.F.-H. court
expressed “no view on the question of whether a removal of the child from one
parent is sufficient to support termination of parental rights of a noncustodial
parent.” Id. at 207 n.2. We conclude it is. The code and our case law provide
the word “parents” should be construed to include both the singular and the
plural. See Iowa Code § 4.1(17); In re Marriage of N.M., 491 N.W.2d 153, 155
(Iowa 1992). In this case, the requirement that the child be removed from the
“parents” thus means either or both parents.
We also determine there is clear and convincing evidence in the record to
show the child could not be safely returned to the father’s care. See Iowa Code
§ 232.116(1)(h)(4). The father has a long history of substance abuse and
criminal conduct. He began using illegal drugs when he was nineteen years old.
The father testified he successfully completed substance-abuse treatment seven
times but had relapsed after previous treatment programs. The father testified he
had either been in prison or on parole for the last twenty years, except for a six-
8
month period. The father testified he had cared for the child for about the first
year of her life, but he also stated he had occasionally used methamphetamine
during that time.
We conclude the juvenile court properly terminated the father’s parental
rights under section 232.116(1)(h).
IV. Best Interests
The father claims termination of his parental rights is not in the child’s best
interests. In considering a child’s best interests, we give 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.” Id. § 232.116(2); In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).
We find termination of the father’s parental rights is in the child’s best interests.
The evidence does not show the father is in a position to successfully care for the
child’s needs. During the time the father previously cared for the child he
engaged in criminal conduct and used illegal drugs.
The father also claims the juvenile court should have decided not to
terminate his parental rights based on the closeness of the parent-child
relationship. See Iowa Code § 232.116(3)(c). The juvenile court found the
parents’ actions “demonstrate to the Court that the bond is not so strong to be
detrimental to [the child] if termination of parental rights occurred.” The court
noted the father had only two supervised visits with the child after his release
from the half-way house. We conclude the juvenile court properly decided not to
apply the exception found in section 232.116(3)(c).
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We affirm the decision of the juvenile court.
AFFIRMED.