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In re K.W.

Court of Appeals of Iowa

August 16, 2017

IN THE INTEREST OF K.W., Minor Child, M.W., Mother Appellant, J.A.-S., Father, Appellant.

         Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.

         A mother and father separately appeal from the termination of their parental rights to their child.

          Ryan R. Gravett of Oliver Gravett Law Firm, P.C., Windsor Heights, for appellant mother.

          Richard R. Hollis, Des Moines, for appellant father.

          Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney General, for appellee State.

          Paul L. White of the Des Moines Juvenile Public Defender's Office, Des Moines, attorney and guardian ad litem for the minor child.

          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.

          MULLINS, JUDGE.

         A mother and father separately appeal from the termination of their parental rights to their child, K.W., born in September 2016. Both parents contend termination is not in the child's best interests and the juvenile court should have granted their requests for additional time to work toward reunification with their child. The father also argues the State failed to prove the statutory grounds for termination by clear and convincing evidence and an exception to termination exists so as to preclude termination.

         The mother has a lengthy history of substance abuse. She admitted using methamphetamine during her pregnancy and K.W. tested positive for the drug at birth. The court removed K.W. from the parents' custody shortly after the child's birth and adjudicated K.W. a child in need of assistance (CINA) in October 2016. The mother minimized and denied her substance-abuse and mental-health issues throughout the CINA case. She struggled to find suitable housing and employment to be able to provide for her child's needs. In March 2017, the mother was arrested on an outstanding warrant and subsequently charged with possession of drug paraphernalia.

         The father has an extensive criminal history and was incarcerated at the time of K.W.'s birth. The parents have never been married, but the mother identified the father as K.W.'s biological parent soon after the child's birth. The father was notified of the removal hearing in September 2016 and was present for the hearing by telephone. However, the father denied paternity and refused to participate in the court-ordered testing until the end of January 2017, because he did not want to be responsible for child-support payments. The father did not request contact or visitation with the child until after he participated in paternity testing. He was confirmed the biological parent of K.W. in March 2017-six months after the child's birth. At the time of the termination hearing, the father had been approved for work release but had not yet been transferred to the work-release facility.

         In a detailed and well-reasoned ruling, the juvenile court terminated the mother's parental rights pursuant to Iowa Code section 232.116(1)(h) (2017) and the father's parental rights pursuant to section 232.116(1)(b) and (h). We review termination-of-parental-rights proceedings de novo. In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). "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. at 219 (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa 2014)). Our primary consideration is the best interests of the child. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).

         The father challenges the grounds for termination under paragraph (b) and also appears to challenge the grounds under paragraph (h) by claiming the Iowa Department of Human Services (DHS) failed to make reasonable efforts to reunify him with his child.[1] See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000) ("The State must show reasonable efforts as a part of its ultimate proof the child cannot be safely returned to the care of a parent [at the time of the termination hearing]."). When a court terminates parental rights on more than one ground, we may affirm the order on any of the statutory grounds supported by clear and convincing evidence. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010).

         The State must make reasonable efforts to reunify the family as quickly as possible after a child has been removed from his or her parents' care and custody. Iowa Code § 232.102(7). In determining whether reasonable efforts have been made, the court considers "[t]he type, duration, and intensity of services or support offered or provided to the child and the child's family." Id. § 232.102(10)(a)(1). "[T]he 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). When a parent is incarcerated, DHS must provide services "reasonable under the circumstances." In re S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000). In making this determination, DHS may consider the following factors: the child's age, the bond the child shares with the incarcerated parent, "any existing clinical or other recommendations concerning visitation, " "the nature of parenting deficiencies, " the physical location of the incarcerated parent relative to the child's placement, ...


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