IN THE INTEREST OF B.R., Minor Child, D.R., Father, Appellant.
from the Iowa District Court for Linn County, Susan F.
Flaherty, Associate Juvenile Judge.
father appeals the termination of his parental rights.
R. Fiester of the Law Office of David R. Fiester, Cedar
Rapids, for appellant.
J. Miller, Attorney General, and Anagha Dixit, Assistant
Attorney General, for appellee.
K. Bryner, Cedar Rapids, guardian ad litem for minor child.
Considered by Danilson, C.J., and Doyle and Mullins, JJ.
father appeals the termination of his parental rights to his
child,  B.R, who was two years old at the time of
the May 2017 termination-of-parental-rights hearing. The
father claims that the State failed to prove the statutory
grounds for termination, that he should have been granted
additional time, and that termination of his parental rights
is not in the child's best interests. Upon our de novo
review, see In re A.M., 843 N.W.2d 100, 110 (Iowa
2014), we affirm the juvenile court's order.
juvenile court terminated the father's parental rights
pursuant to Iowa Code section 232.116(1)(e) and (h) (2017).
When the juvenile court terminates parental rights on more
than one ground, we may affirm the order on any ground we
find supported by clear and convincing evidence in the
record. See In re D.W., 791 N.W.2d 703, 707 (Iowa
2010). We choose to address the ground for termination under
section 232.116(1)(h). This section provides termination may
be ordered when there is clear and convincing evidence that a
child age three or under, who has been adjudicated a child in
need of assistance (CINA) and removed from the parents'
care for at least six of the last twelve months or the last
six consecutive months, cannot be returned to the
parents' custody at the time of the termination hearing.
See Iowa Code § 232.116(1)(h). The first three
elements of paragraph (h) are not in dispute; rather, the
father asserts on appeal that the State failed to prove the
fourth element. See id. § 232.116(1)(h)(4)
("There is 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.").
To satisfy its burden of proof, the State must establish
"[t]he child cannot be protected from some harm which
would justify the adjudication of the child as a child in
need of assistance." See id. §
232.102(5)(2); accord In re A.M.S., 419 N.W.2d 723,
725 (Iowa 1988). The threat of probable harm will justify
termination of parental rights, and the perceived harm need
not be the one that supported the child's initial removal
from the home. See In re M.M., 483 N.W.2d 812, 814
(Iowa 1992). "At the present time" refers to the
time of the termination hearing. A.M., 843 N.W.2d at
father does not really mount a challenge to the State's
proof of element four, conceding in his brief that he
"was incarcerated and clearly could not resume custody
of B.R." Indeed, the record is clear that the father was
incarcerated at the time of the termination hearing, would be
for the foreseeable future, and, therefore, was not in a
position to have custody of the child then or in the near
future. But, this was only one of the factors supporting the
juvenile court's conclusion the child could not be
returned to the father at the time of the termination hearing
without subjecting the child to the adjudicatory harm.
juvenile court found,
[The father] has a significant criminal history and is
currently in prison, with a tentative discharge date in 2023.
[The father]'s criminal history includes domestic
assaults, use of weapons, multiple thefts, and burglary. [The
father] also has a lengthy history of substance abuse. During
the course of the proceedings regarding [B.R.], he has
continued to use methamphetamine and heroin and has been
unwilling to engage in substance-abuse treatment. [The
father]'s relationship with [the mother] has been violent
and dysfunctional. [The father] has assaulted [the mother] on
multiple occasions and inflicted significant injury. [The
mother] has, at times, expressed a great deal of fear of [the
father] and separated from him. Currently, [the mother] is
clearly stating her desire to continue her relationship with
[the father] when he is released from prison. . . .
[The father] has not been willing to participate in services
offered by the [Iowa] Department of Human Services, including
supervised visitation, drug testing, substance-abuse
evaluation and treatment, or domestic violence counseling.
[The father] has had the ability to see [B.R.] weekly since
the dispositional hearing, under the supervision of the
Department of Human Services. He has not attended any of the
offered visits. [The father] was ...