IN THE INTEREST OF J. V. Minor child, J.V., Father, Appellant.
from the Iowa District Court for Polk County, Louise M.
Jacobs, District Associate Judge.
appeals from an order terminating his parental rights
pursuant to Iowa Code chapter 232 (2016).
P. Vogel of Vogel Law, P.L.L.C., Des Moines, for appellant
J. Miller, Attorney General, and Kristi A. Traynor, Assistant
Attorney General, for appellee State.
Garbis Nolan of Youth Law Center, Des Moines, guardian ad
litem for minor child.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
the father, appeals from an order terminating his parental
rights in his child, J.V., pursuant to Iowa Code section
232.116(1)(b), (e), and (h) (2016). The father challenges the
sufficiency of the evidence supporting the statutory grounds
authorizing the termination of his parental rights. The
father also contends the termination of his parental rights
is not in the child's best interest.
review is de novo. See In re A.M., 843 N.W.2d 100,
110 (Iowa 2014). The statutory framework and burden of proof
are both well established and need not be repeated herein.
See id.; In re M.S., 889 N.W.2d 675, 679
(Iowa Ct. App. 2016). "When the juvenile court
terminates parental rights on more than one statutory ground,
we may affirm the juvenile court's order on any ground we
find supported by the record." In re A.B., 815
N.W.2d 764, 774 (Iowa 2012).
address termination of James's parental rights pursuant
to section 232.116(1)(h). As relevant here, the State was
required to prove by "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." Iowa Code § 232.116(1)(h)(4).
"At the present time" means at the time of the
termination hearing. See A.M., 843 N.W.2d at 111.
"[A] child cannot be returned to the custody of the
child's parent under . . . section 232.102 if by doing so
the child would be exposed to any harm amounting to a new
child in need of assistance adjudication." In re
M.M., 483 N.W.2d 812, 814 (Iowa 1992). We have
interpreted this provision to require the State to prove the
child would be exposed to an "appreciable risk of
adjudicatory harm." M.S., 889 N.W.2d at 683.
novo review, we conclude there was clear and convincing
evidence in support of this ground for termination of
James's parental rights. The child at issue was born in
January 2015. Sixteen days after the child's birth, the
father was placed in custody for violating the terms and
conditions of his probation. At the time of the termination
hearing, the father was incarcerated for convictions of
threat to use an explosive or incendiary device and two
counts of harassment in the first degree. The father's
discharge date is in 2019. While James did testify he would
be eligible for parole prior to that date, he also admitted
parole could be delayed due to his repeated violations of
prison rules. James's incarceration at the time of the
termination hearing precluded his ability to provide care for
the child. See Iowa Code § 232.2(6)(n)
(defining a child in need of assistance to include one whose
"parent's or guardian's mental capacity or
condition, imprisonment, or drug or alcohol abuse results in
the child not receiving adequate care"); In re
L.H., No. 16-1605, 2016 WL 7395294, at *1 (Iowa Ct. App.
Dec. 21, 2016) (affirming termination of parental rights
pursuant to section 232.116(1)(h) whether father was
incarcerated at the time of the termination hearing and the
child did not recognize the father).
conclude termination of the father's parental rights is
in the child's best interest. The father has extensive
criminal history. He was incarcerated from 2006 through 2013.
He was incarcerated again in 2015, shortly after the
child's birth. The father has no bond with the child; the
father had one visitation with the child in the Polk County
Jail but otherwise has not seen the child in two years. The
father's request that the child be placed with one of the
father's relatives until the father's discharge from
prison was untenable. The Iowa Department of Human Services
investigated the requested familial placements and concluded
the child could not be placed safely with any of them due to
concerns regarding violence and criminal behavior within the
family, including, among other things, convictions for
domestic abuse assault, assault with a weapon, assault,
theft, robbery, extortion, kidnapping, criminal mischief, and
possession of a controlled substance.
cannot ask this child to continuously wait for his father to
become a stable parent. See In re A.B., 815 N.W.2d
764, 777 (Iowa 2012) ("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." (quoting In
re P.L., 778 N.W.2d 33, 41 (Iowa 2010))). "[A]t
some point, the rights and needs of the child[ ] rise above
the rights and needs of the parent." In re