In the Interest of T.B., Minor Child ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0368
Filed June 3, 2020
IN THE INTEREST OF T.B.,
Minor Child,
N.B., Father,
Appellant.
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Appeal from the Iowa District Court for Polk County, Lynn Poschner, District
Associate Judge.
The father appeals termination of his parental rights. AFFIRMED.
Britt Gagne of Gagne Law Office, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Erin Romar of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor child.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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AHLERS, Judge.
An incarcerated father who had not seen his fourteen-year-old child for
nearly six years challenges the termination of his parental rights. 1 He argues
reasonable efforts were not made toward reunification and termination of his
parental rights is not in the best interest of the child. We affirm.
I. Procedural and Factual Background.
The child-in-need-of-assistance (CINA) proceeding that led to this
termination-of-parental-rights proceeding was the third CINA proceeding involving
this child. The child was removed from her parents in 2007, 2016, and 2019. She
has been denied critical care, been the victim of physical and sexual abuse, and
been left in the care of persons using methamphetamine. She has been in
approximately seventeen placements during the three CINA proceedings. At the
time of the termination hearing in February 2020, the child was in shelter care as
a result of having run away from her foster home.
The father has not been involved in the child’s life for long periods of time.
He did not participate in the first two CINA proceedings or during the first seven
months of the third CINA proceeding. The father has not physically seen the child
since 2014. The father has a long history of methamphetamine abuse and
violence. The father had his parental rights terminated with regard to three of his
other eight children, and none of the other five children are in his care. At the time
of the termination hearing in this case, the father was in prison for domestic abuse
assault and child endangerment. His expected prison discharge date was
1 The mother's parental rights were also terminated, but the mother did not appeal.
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December 2020, although he hoped to be paroled to a residential correctional
facility (RCF) within two months following the termination hearing.
II. Standard of Review and the Three-Step Framework.
After a contested hearing in which the father participated by telephone from
prison, the juvenile court terminated the father’s parental rights pursuant to Iowa
Code section 232.116(1)(f) and (g) (2019). The father appeals. “We review
proceedings terminating parental rights de novo.” In re A.S., 906 N.W.2d 467, 472
(Iowa 2018) (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa 2014)). “We are not
bound by the juvenile court’s findings of fact, but we do give them weight,
especially in assessing the credibility of witnesses.” Id. (quoting A.M., 843 N.W.2d
at 110). Our primary concern is the best interest of the child. In re J.E., 723 N.W.2d
793, 798 (Iowa 2006).
Review of termination-of-parental-rights proceedings under Iowa Code
chapter 232 follows a three-step analysis: (1) “determine whether any ground for
termination under section 232.116(1) has been established”; (2) determine
whether the best-interest-of-the-child framework set forth in section 232.116(2)
supports termination of parental rights; and (3) “consider whether any exceptions
in section 232.116(3) apply to preclude termination of parental rights.” In re M.W.,
876 N.W.2d 212, 219–20 (Iowa 2016).
III. Statement of Issues and Analysis.
The father does not challenge the juvenile court’s findings the statutory
grounds for termination of parental rights have been established or claim any of
the exceptions in section 232.116(3) apply, so we will not address either of those
steps in the three-step analysis. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to
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cite authority in support of an issue may be deemed waiver of that issue.”); In re
P.L., 778 N.W.2d 33, 40 (Iowa 2010) (stating we need not discuss any step the
parent does not dispute). The father makes the following claims: (1) reasonable
efforts at reunification were not made because he did not have visitation with the
child while in prison and (2) termination is not in the child’s best interest.
A. Reasonable Efforts.
To begin the discussion of the father’s challenge to reasonable efforts, we
must first address the issue of error preservation. The State asserts the father did
not preserve error on this issue. We disagree. It is true a parent must raise a
challenge to the juvenile court about the adequacy of services “at the removal,
when the case permanency plan is entered, or at later review hearings.” In re C.H.,
652 N.W.2d 144, 148 (Iowa 2002). It is also true any request for different or
additional services must be made to the juvenile court because “voicing complaints
regarding the adequacy of services to a social worker is not sufficient.” Id. In this
case, the record shows the father raised the issue requesting visitation not only at
the termination hearing in February 2020 but also during an earlier review hearing
in August 2019. Therefore, the father has preserved error on this issue.
The Iowa Department of Human Services (DHS) is required to “make every
reasonable effort to return the child to the child’s home as quickly as possible
consistent with the best interests of the child.” Iowa Code § 232.102(7); In re C.B.,
611 N.W.2d 489, 493 (Iowa 2000). “Visitation between a parent and child is an
important ingredient to the goal of reunification. However, the nature and extent
of visitation is always controlled by the best interests of the child.” In re M.B., 553
N.W.2d 343, 345 (Iowa Ct. App. 1996) (citations omitted). Imprisonment of a
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parent does not “absolve[] the department of its statutory mandate to provide
reunification services under all circumstances. Instead, . . . the department must
assess the nature of its reasonable efforts obligation based on the circumstances
of each case.” In re S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000). “Whether
visitation for an incarcerated parent should be ordered as a reasonable effort
toward reunification when timely raised by the parent will depend on the
circumstances of each case.” In re L.M., 904 N.W.2d 835, 840 n.9 (Iowa 2017).
In this case, there is no dispute the father requested visitation with the child
in August 2019 but had not received visitation by the time of the termination hearing
six months later. At first blush, this may appear to be a lack of reasonable efforts.
However, when the circumstances are considered, the lack of visitation was not
unreasonable. When the father made his request for visitation, he was in prison
and had been in prison for three months. Also, he had not physically seen the
child for approximately five years. His request came seven months into the third
CINA proceeding, which followed the prior two CINA proceedings in which the
father had not participated. During the first four months of the third CINA
proceeding when the father was not incarcerated, he made no request or effort to
see the child. It was only after sitting in prison for three months that the father first
broached the topic of visitation. In short, the father had no relationship or bond
with the child when the request was made. Furthermore, the father had not
addressed his longstanding issues of substance abuse and violence.
On top of the father’s lack of relationship with the child when the request
was made, the child was in no position to start a new course to try to mend the
fractured relationship with her dad. During the time between the father’s request
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and the termination proceeding, the child had run away from her foster home, been
placed in shelter, and was supposed to be in therapy. Given the child’s mental-
health and behavioral issues, it was recommended that any visitation with the
father be in a therapeutic environment. That visitation could not take place
because the child was not participating in therapy. In addition, when the child was
asked about visitation with her father, the child expressed a desire to not have
visitation and refused to provide a photo to send to her father. She also refused
to attend the termination hearing.
Given the lack of relationship between the child and the father resulting from
years of indifference on the part of the father, the need for the child to focus on her
own issues, the child’s lack of interest in visiting the father, and the father’s
unresolved substance-abuse and violence issues, it was reasonable that visitation
did not occur as requested in this case. The DHS did not fail to make reasonable
efforts at reunification.
B. Best Interest of the Child.
For many of the same reasons discussed as to why lack of visitation was
not a failure to make reasonable efforts, termination of the father’s rights is in the
child’s best interest. The father has not been involved in the child’s life for the
majority of the child’s life, including failing to become involved in two prior CINA
proceedings. He has not physically seen the child since 2014. He has had his
parental rights to three other children terminated, with the most recent of those
three terminations occurring with respect to this child’s full biological sibling
approximately six months prior to the termination in this case.
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The child, who was fourteen at the time of the termination hearing, did not
want to see the father or provide him with a photo. She did not object to
termination.
In addition, the father has a long history of unmitigated substance abuse
and violence. He has been unable to demonstrate that he can maintain sobriety
and avoid violence while not incarcerated. Furthermore, the father’s current
incarceration and anticipated forthcoming stay at an RCF prevent him from being
a viable placement option now or in the near future.
There is nothing about the father’s past or current situation that suggests
that he will become a viable placement option even after he clears the hurdles
associated with his incarceration and parole. See In re T.B., 604 N.W.2d 660, 662
(Iowa 2000) (“The future can be gleaned from evidence of the parents’ past
performance and motivations.”). The child should not be required to wait any
longer to see if the father is willing to be a parent. See In re L.L., 459 N.W.2d 489,
495 (Iowa 1990) (“Children simply cannot wait for responsible parenting. Parenting
cannot be turned off and on like a spigot. It must be constant, responsible, and
reliable.”). We find it to be in the child’s best interest to terminate the father’s
parental rights.
IV. Conclusion.
Finding the father’s claims unpersuasive, we affirm the juvenile court’s order
terminating the father’s parental rights.
AFFIRMED.