In re K.S.

• Decision Date: 12 April 2023
• Docket Number: 23-0098
• Parties: IN THE INTEREST OF K.S. and M.S., Minor Children, E.S., Father, Appellant.
• Court: Iowa Court of Appeals

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IN THE INTEREST OF K.S. and M.S., Minor Children, E.S., Father, Appellant.

No. 23-0098

Court of Appeals of Iowa

April 12, 2023

Appeal from the Iowa District Court for Scott County, Cheryl E Traum, District Associate Judge.

A father appeals the termination of his parental rights.

G Brian Weiler, Davenport, for appellant father.

Brenna Bird, Attorney General, and Mary A. Triick, Assistant Attorney General, for appellee State.

Jean Capdevila, Davenport, attorney and guardian ad litem for minor children.

Considered by Tabor, P.J., and Schumacher and Ahlers, JJ.

SCHUMACHER, JUDGE.

A father appeals the termination of his parental rights. We find the termination of the father's parental rights is supported by clear and convincing evidence, termination is in the children's best interests, no exceptions to termination should be applied, and the Iowa Department of Health and Human Services (HHS) made reasonable efforts to reunify the family. We affirm the decision of the district court.

I. Background Facts &Proceedings

E.S. is the father and J.M. is the mother of K.S., born in 2016, and M.S., born in 2017.^[1] The family came to the attention of HHS in September 2020 when the mother was assaulted by her paramour, A.G., in the presence of the children.^[2]The children were removed on January 29, 2021, because the mother continued a relationship with A.G. and left the children with friends. The children were placed in foster care. The father was not available to care for the children because he was in prison.

The children were adjudicated to be in need of assistance under Iowa Code section 232.2(6)(b), (c), (e), (g), and (n) (2020). A review order, dated July 21, 2021, noted the father requested visits with the children while he was at the Newton Correctional Facility. The court found HHS had engaged in reasonable efforts. The review order outlined the requirements for the father to have visitation.

The father has been in prison on a conviction for second-degree robbery since 2018. He expected to be released in September 2023. He had one or two visits with the children soon after the CINA case was initiated. He had two or three more visits when his parents brought the children to visit him. The father asked HHS for more visits. He wrote some letters to HHS and the children. He also called the children at the foster home.

On January 6, 2022, the State filed a petition seeking termination of the parents' rights. At the termination hearing on May 23, counsel for the father stated:

Your Honor, [E.S.], the father of [K.S.] and [M.S.], is not consenting. However, he knows that he is in no position to take custody of his children. His desire is that both children be placed with his father, [G.S.], who is present. [G.S.] has been present from the beginning of this case and ready to take custody and care of the children.

The father had a video visit with the children on the Friday before the hearing, which was held on a Monday.^[3]

The district court entered an order on June 3 terminating the parents' rights. The father's rights were terminated under section 232.116(1)(b), (d), (e), (f), and (i) (2022).^[4] The court found termination was in the children's best interests, stating,

The parents have been unable to make sufficient progress throughout the life of this case to work toward reunification. The parents have been unable to address the many issues that have plagued them during this case and before this case was opened. The parents' inability to progress shows they are unlikely to ever become capable of providing a safe and stable home for these children.

The court found no statutory exceptions applied under section 232.116(3). The court also found the State had engaged in reasonable efforts to achieve permanency.

The father filed a motion for new trial, claiming the State had not engaged in reasonable services.^[5] He also requested an extension of time. The State resisted the father's motion for a new trial on the ground that the motion was untimely. A hearing on the motion was held on December 6. The court denied the motion for a new trial. The father now appeals the termination of his parental rights.

II. Standard of Review

Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). The State must prove its allegations for termination by clear and convincing evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). "'Clear and convincing evidence' means there are no serious or substantial doubts as to the correctness [of] conclusions of law drawn from the evidence." Id. Our primary concern is the best interests of the children. In re J.S., 846 N.W.2d 36, 40 (Iowa 2014).

In general, we follow a three-step analysis in reviewing the termination of a parent's rights. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). We first consider whether there is a statutory ground for termination of the parent's rights under section 232.116(1). Id. Second, we look to whether termination of the parent's rights is in the child's best interests. Id. (citing Iowa Code § 232.116(2)). Third, we consider whether any of the exceptions to termination in section 232.116(3) should be applied. Id.

III. Sufficiency of the Evidence

The father claims the State did not present clear and convincing evidence to support termination of his parental rights. He points out that the children were not removed due to his conduct and states his parental rights should not be terminated based on the mother's conduct. The father also asserts the children could be returned to his custody within a year when he is released from prison.

"We will uphold an order terminating parental rights where there is clear and convincing evidence of the statutory grounds for termination." In re T.S., 868 N.W.2d 425, 434 (Iowa Ct. App. 2015). "When the juvenile court orders termination of parental rights on more than one statutory ground, we need only find grounds to terminate on one of the sections to affirm." Id. at 435. We elect to focus on the termination of the father's parental rights under section 232.116(1)(f).^[6] The children were four years of age or older; K.S. was born in 2016, and M.S. was born in 2017. See Iowa Code § 232.116(1)(f)(1). There was a CINA adjudication for them on March 12, 2021. See id. § 232.116(1)(f)(2). They were removed from parental custody on January 29, 2021, a period of more than twelve months before the termination hearing held on May 23, 2022. See id. § 232.116(1)(f)(3).

Section 232.116(1)(f)(4) requires a showing by clear and convincing evidence that a child "could not be safely returned to the custody of [the child's] parents." In re S.O., 967 N.W.2d 198, 206 (Iowa 2021). Pursuant to section 232.116(1)(f)(4), a court considers whether a child can be returned to the parent at the time of the termination hearing. In re A.B., 957 N.W.2d 280, 294 (Iowa 2021). The termination hearing was held on May 23, 2022, and the father did not expect to be released from prison until September 2023, at the earliest. The children could not be returned to his custody at the time of the hearing, as the father acknowledged.

We find all of the criteria for termination under section 232.116(1)(f) were met and the father's parental rights could be terminated under this section.

IV. Best Interests

The father contends that termination of his parental rights is not in the children's best interests. He states the children remember him and are bonded with him. In considering the best interests of a child, we give "primary consideration to the child's safety, to the best placement for furthering the longterm nurturing and growth of the child, and to the physical, mental, and emotional needs of the child under section 232.116(2)." P.L., 778 N.W.2d at 40. "It is well-settled law that we cannot deprive a child of permanency after the State has proved a ground for termination under section 232.116(1) by hoping someday a parent will learn to be a parent and be able to provide a stable home for the child." Id. at 41.

The district court found termination of the father's rights was in the children's best interests. The court stated:

The parents have failed to address many concerns related to the children's safety, stability, and security. Their pattern of refusing to address these issues indicates they are unlikely to address these issues in the future. The children will benefit from the long-term certainty secured by terminating the parents' parental rights.

At the time of the termination hearing in May 2022, the children had been out of the parents' custody for about fifteen months. The father argues it would be in their best interests to wait another sixteen months, until September 2023, when he is released from prison so he could be reunited with them. We first note that the father's circumstances when he is released are unknown and it is unlikely the children could immediately be placed in his custody. Also, we find it is not in the children's best interests to wait such a long period of time for their father to possibly be able to care for them. "Children should not be made to suffer indefinitely in parentless limbo." In re K.C., 660 N.W.2d 29, 35 (Iowa 2003). "Children simply cannot wait for responsible parenting." In re C.H., 652 N.W.2d 144, 151 (Iowa 2002). We find termination of the father's parental rights is in the children's best interests.

V. Exceptions

As part of his best interests argument, the father cites to section 232.116(3)(c), which provides the court may decide not to terminate parental rights if "[t]here is clear and convincing evidence that the termination would be detrimental to the child at the time due to the closeness of the parent-child relationship."

The exceptions to termination...