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In re B.R.

Court of Appeals of Iowa

November 8, 2017

IN THE INTEREST OF B.R., Minor Child, D.R., Father, Appellant.

         Appeal from the Iowa District Court for Linn County, Susan F. Flaherty, Associate Juvenile Judge.

         A father appeals the termination of his parental rights. AFFIRMED.

          David R. Fiester of the Law Office of David R. Fiester, Cedar Rapids, for appellant.

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

          Carrie K. Bryner, Cedar Rapids, guardian ad litem for minor child.

          Considered by Danilson, C.J., and Doyle and Mullins, JJ.

          DOYLE, JUDGE.

         A father appeals the termination of his parental rights to his child, [1] 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.

         The 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 111.

         The 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.

         The 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 ...

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