In re Interest of Z.P.

• Decision Date: 04 September 2020
• Docket Number: No. 20-0582,20-0582
• Citation: 948 N.W.2d 518
• Parties: In the INTEREST OF Z.P., Minor Child, F.M., Father, Appellant.
• Court: Iowa Supreme Court

948 N.W.2d 518

In the INTEREST OF Z.P., Minor Child, F.M., Father, Appellant.

No. 20-0582

Supreme Court of Iowa.

Submitted July 27, 2020

Filed September 4, 2020

Jesse A. Macro of Macro and Kozlowski, West Des Moines, for appellant.

Thomas J. Miller, Attorney General, Toby J. Gordon, Assistant Attorney General, John P. Sarcone, County Attorney, and Eva T. Morales, Assistant County Attorney, for appellee.

Nicole Garbis Nolan of Youth Law Center, Des Moines, attorney and guardian ad litem for minor child.

PER CURIAM.

Concerned that a parent might have been unfairly penalized for working too hard, we took further review of this termination-of-parental-rights case. On closer examination of the entire record, we find that clear and convincing evidence supports the order entered below.

A small child was removed from her mother's custody after the child's mother was found to have repeatedly beaten the child's older half-sibling. The child was adjudicated in need of assistance. For nearly eighteen months, the father—who had never lived with the child—received services. He made some progress, although he never got past one or two semi-supervised visits per week with the child at a public library. One limiting factor was the father's grueling work schedule: he worked two full-time jobs weekdays from 6 a.m. to midnight. But that was not the only consideration. The father also lacked a driver's license and the ability to obtain one. The father's plans for child care were vague. Most importantly, the father did not develop the parenting skills needed for age-appropriate interactions with the child and did not appear to appreciate the child's psychological needs. He was not ready to take full-time custody of the child. After almost eighteen months in limbo, the child was entitled to permanency. Accordingly, we affirm the order of the juvenile court and the decision of the court of appeals terminating parental rights.

I. Facts and Procedural History.

Z.P. was born November 2016 to mother H.P. and father F.M. For nearly two years, Z.P. lived with H.P. and two older half-siblings. F.M. visited Z.P. periodically. In September 2018, the three children came to the attention of the Department of Human Services (DHS). The oldest child had suffered repeated physical abuse at the hands of H.P. Photographs graphically documented the abuse. The three children were removed and placed in foster care. They have remained out of parental custody since that time.

In November 2018, the three children were adjudicated children in need of assistance (CINA). In January 2019, a dispositional hearing was held. The children were confirmed CINA, and their prior placement was confirmed. The juvenile court also found that reasonable efforts were being made to eliminate or prevent the need for removal of the children from the home.

In March 2019, the children had to move to shelter care for a while. The following month, Z.P. and her older half-sister were placed in a new foster home, and the older half-brother (the one who was the prior victim of physical abuse at the hands of H.P.) entered a different foster home.

In June, a review hearing was held. The children's status as CINA was confirmed, as was their placement outside the home. The juvenile court again determined that reasonable efforts were being made toward reunification. In September, a permanency hearing took place. The parents were granted a three-month extension until December, but with a directive that a termination petition should be filed if reunification could not occur by then.

In December, the State filed a petition to terminate parental rights as to all three children. The case proceeded to a hearing in late January 2020. Testimony was taken from five witnesses—H.P., F.M., H.P.’s therapist, a service provider, and a DHS caseworker. The DHS caseworker and the guardian ad litem recommended termination. In March 2020, the juvenile court entered an order terminating parental rights.

F.M., as noted, is Z.P.’s father.¹ At the time of the termination hearing, F.M. was sixty years old and H.P. was forty-two. Z.P. has never lived with F.M.

F.M. works two jobs during the week. His first job shift starts at 6 a.m. and ends at 2:30 p.m. His second starts at 3:30 p.m. and runs until midnight. F.M. explained at the termination hearing that if he were granted custody of Z.P., he would quit the second job. Previously, though, he told DHS repeatedly that he needed to work both jobs to meet his financial needs.

DHS attempted to schedule visitation in the early to midafternoon during the shoulder period between F.M.’s jobs to minimize the time that F.M. would miss from work. Nonetheless, there were times F.M. could not attend.

DHS provided documentation to assist F.M. in getting time off from work. However, by the time of the termination hearing, both employers were indicating they could no longer give F.M. time away work for parenting reasons.

F.M. has not raised a child before. During the course of the case, he successfully completed two parenting classes and progressed to semi-supervised visitation. However, DHS noted that aspects of F.M.’s interactions with Z.P. were not age-appropriate. F.M. would repeatedly feed Z.P. (although she was capable of feeding herself) and talk baby talk to her (although she was quite verbal). The foster mother reported that after visits with F.M., Z.P. acted more "baby-like" than prior to the visits. Z.P. was, however, excited to see F.M. and recognized him as her father.

Z.P. was seeing a therapist because of the disruptions she had undergone in her relatively brief life. She was reported to have screaming episodes. F.M. had not been involved in Z.P.’s medical or psychological care and did not know why she was in therapy.

F.M. has a car and drives himself around, but he does not have a driver's license or the ability to get a driver's license. F.M. drove Z.P. in his car a couple of times during visits until DHS told him he could not do so. F.M. testified at the hearing that a coworker-friend would be able to pick up Z.P. and deliver her to an in-home day care.²

F.M. lives in a one-bedroom apartment. The apartment has one bed, suitable for an adult. F.M. explained at the hearing that if he were granted custody of Z.P., he would install a guardrail to make the bed suitable for a toddler, and he would sleep on the couch.

There was disputed evidence regarding F.M.’s drinking. H.P. claimed that F.M. had a drinking problem; F.M. denied this. A social worker reported that at an August 2019 team meeting, F.M. was hung over and smelled of alcohol.

The juvenile court terminated H.P.’s parental rights to the two older half-siblings under Iowa Code section 232.116(1)(f ) (2019)—child over the age of four, previously adjudicated CINA, removed from physical custody for at least twelve of the last eighteen months, cannot be returned to the parents at the present time. The juvenile court terminated both H.P.’s and F.M.’s parental rights to Z.P. under section 232.116(1)(h ) —child three years of age or younger, previously adjudicated CINA, removed from physical custody for at least six of the last twelve months, cannot be returned to the parents at the present time. F.M. appealed.³

On appeal, F.M. has raised two arguments. First, he maintains that Z.P. was never "formally removed" from him. She had been living only with H.P., her mother, when the removal order was entered. Second, F.M. urges that the State failed to show that Z.P. could not be placed with him at the time of the termination hearing. As F.M. put it, "No witness could articulate that father posed a danger to his child or that he did not have adequate skills to parent his child safely and on a full-time basis."

The court of appeals rejected both arguments and affirmed termination. In overruling F.M.’s second point, the court observed in part,

The barriers preventing the father from taking over care of Z.P. are unique in comparison to other termination-of-parental-rights cases we see, but that does not make them any less real. The father works approximately eighteen hours per day, Monday through Friday. While he testified he would quit his evening job if Z.P. was placed in his care, he was still actively working both jobs at the time of the termination hearing in late January 2020. Based on previous statements made by the father, it is not clear he could financially afford to quit working the second job.

Seizing on this language, F.M. has sought further review. As F.M. puts it,

Concluding working 18 hours [a] day to provide for your family is the same as beating a child, starving a child, sexually abusing a child, using methamphetamine when caring for a child, failing to provide proper medical care and treatment for a child or abandoning a child is not only an abuse of discretion by the Iowa Court of Appeal[s] but an offensive public policy....

We granted F.M.’s application.

II. Standard of Review.

"We review proceedings terminating parental rights de novo." 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 In re D.W. , 791 N.W.2d 703, 706 (Iowa 2010) ). "There must be clear and convincing evidence of the grounds for termination of parental rights." In re M.W. , 876 N.W.2d 212, 219 (Iowa 2016) ; see also Iowa Code § 232.117.

III. Legal Analysis.

To terminate F.M.’s parental rights to Z.P. under Iowa Code section 232.116(1)(h ), the State must prove the following:

(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

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