                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-2098
                               Filed March 8, 2017


IN THE INTEREST OF A.F.,
Minor Child,

D.F., Father,
       Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Marion County, Steven W. Guiter,

District Associate Judge.



       A father appeals the juvenile court decision terminating his parental rights.

AFFIRMED.




       Kevin E. Hobbs of Kevin Hobbs, Attorney at Law, West Des Moines, for

appellant.

       Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

       Dawn M. Bowman of Bowman Law Office, Pleasantville, guardian ad litem

for minor child.




       Considered by Mullins, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

       A father appeals the juvenile court decision terminating his parental rights.

We find the father’s parental rights were properly terminated under Iowa Code

section 232.116(1)(h) (2016). There was clear and convincing evidence the child

had been removed from the parents’ care for at least six months and the child

could not be safely returned to the father’s care. We also find termination of the

father’s parental rights is in the child’s best interests. We affirm the decision of

the juvenile court.

       I.     Background Facts & Proceedings

       D.F., father, and N.R., mother, are the parents of a child born in 2014.

The father participated in caring for the child for about one year after she was

born. The child was removed from the parents’ care on September 14, 2015,

after the mother tested positive for methamphetamine. The father was in the

Newton Correctional Facility at the time.1 The child was placed in the care of the

maternal grandmother.

       The parties stipulated the child was in need of assistance (CINA) pursuant

to Iowa Code section 232.2(6)(c)(2) (2015), which provides for CINA adjudication

when a child has suffered or is imminently likely to suffer harmful effects due to

the parents failure “to exercise a reasonable degree of care in supervising the

child.” On May 4, 2016, the juvenile court modified the dispositional order to

place the child in “another suitable placement,” along with one of the child’s half-

siblings.


1
  The father’s probation for theft in the second degree was revoked on May 20, 2015,
due to a conviction for possession of drug paraphernalia.
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         On April 22, 2016, the father was placed in a half-way house in Burlington.

He obtained employment. He participated in a substance abuse evaluation and

completed an extended outpatient treatment program. The father was released

from the half-way house on September 6, 2016. He was currently living with a

woman who had some prior involvement with the Iowa Department of Human

Services. The father participated in two authorized visits with the child and had

one unauthorized interaction. He had telephone contact with the child both while

he was in prison and the half-way house.

         On September 8, 2016, the State filed a petition seeking termination of the

parents’ rights.     After the hearing, the juvenile court entered an order on

December 2, 2016, terminating the father’s parental rights under section

232.116(1)(d) and (h) (2016). The court found services had been offered to the

father and he did not participate in the services. The court also found the child

could not be safely returned to the father’s care at the current time. The father

now appeals the juvenile court order terminating his parental rights.2

         II.    Standard of Review

         The scope of review in termination cases is de novo. In re D.W., 791

N.W.2d 703, 706 (Iowa 2010).          Clear and convincing evidence is needed to

establish the grounds for termination. In re J.E., 723 N.W.2d 793, 798 (Iowa

2006). Where there is clear and convincing evidence, there is no serious or

substantial doubt about the correctness of the conclusion drawn from the

evidence.      In re D.D., 653 N.W.2d 359, 361 (Iowa 2002).        The paramount



2
    The mother’s appeal of the termination order was dismissed.
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concern in termination proceedings is the best interests of the child. In re L.L.,

459 N.W.2d 489, 493 (Iowa 1990).

       III.   Sufficiency of the Evidence

       The father claims there is not sufficient evidence in the record to support

termination of his parental rights under section 232.116(1)(d) or (h).

       A.     Section 232.116(1)(d) provides a parent’s rights may be terminated

on the ground if:

       The court finds that both of the following have occurred:
               (1) The court has previously adjudicated the child to be a
       child in need of assistance after finding the child to have been
       physically or sexually abused or neglected as the result of the acts
       or omissions of one or both parents, or the court has previously
       adjudicated a child who is a member of the same family to be a
       child in need of assistance after such a finding.
               (2) Subsequent to the child in need of assistance
       adjudication, the parents were offered or received services to
       correct the circumstance which led to the adjudication, and the
       circumstance continues to exist despite the offer or receipt of
       services.

       “The grounds for a CINA adjudication do matter.” In re J.S., 846 N.W.2d

36, 41 (Iowa 2014).     The phrases “physical abuse or neglect” or “abuse or

neglect” mean “any nonaccidental physical injury suffered by a child as the result

of the acts or omissions of the child’s parent, guardian, or custodian or other

person legally responsible for the child.” Iowa Code § 232.2(42). The Iowa

Supreme Court has noted a CINA determination under section 232.2(6)(c)(2)

cannot lead to a termination of parental rights under section 232.116(1)(d)

because an adjudication under section 232.2(6)(c)(2) does not require a finding

of physical abuse or neglect. See J.S., 846 N.W.2d at 41.
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       We determine the father’s parental rights could not be properly terminated

under section 232.116(1)(d) because there was no evidence the child suffered a

“nonaccidental physical injury.” See In re M.W., 876 N.W.2d 212, 220 (Iowa

2016) (finding termination of parental rights under section 232.116(1)(d) could

not be supported in the absence of a finding the child suffered a “nonaccidental

physical injury”).

       B.     Under section 232.116(1)(h), a parent’s rights may be terminated

on the ground if:

       The court finds that all of the following have occurred:
               (1) The child is three years of age or younger.
               (2) The child has been adjudicated a child in need of
       assistance pursuant to section 232.96.
               (3) The child has been removed from the physical custody of
       the child's parents for at least six months of the last twelve months,
       or for the last six consecutive months and any trial period at home
       has been less than thirty days.
               (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.

       There is clear and convincing evidence in the record to show the child,

who was born in 2014, was younger than three at the time of the termination

hearing in 2016. See Iowa Code § 232.116(1)(h)(1). Also, there had been a

CINA adjudication pursuant to section 232.96. See id. § 232.116(1)(h)(2).

       In his petition on appeal, the father states, “In the instant case, A.F. was

not removed from D.F.’s custody and it was never alleged that D.F. neglected or

abused A.F.”         The Iowa Supreme Court recently determined termination

provisions requiring a finding “[t]he child has been removed from the physical

custody of the child’s parents,” require a change from physical custody to lack of
                                         6

physical custody.3 In re C.F.-H., 889 N.W.2d 201 (Iowa 2016). The court stated,

“the statute ensures that before termination occurs under these subsections, a

parent has had a chance at physical custody in the past that has been

unsuccessful.” Id. In C.F.-H., the parties agreed the child had always been in

the mother’s custody and had never been in the father’s custody. Id. at 208. The

father claimed he had not been informed removal of the child from the mother

could impact his parental rights. Id. at 205. The court disregarded, “the notion

that mere lack of physical custody is sufficient to satisfy the statutory requirement

of ‘removal of physical custody.’” Id. at 208.

       In the present case, the father testified, “I was with her every night for her

first year, you know, a little over her first year taking care of her. Made sure she

had her bath every day.” He testified he stayed with the child as long as he could

before his most recent incarceration. The child was born in February 2014. The

father testified he used drugs until December 2014 or January 2015, and stated,

“It was right before I ended up going in.” The father’s probation was revoked due

to a conviction for possession of drug paraphernalia in May 2015. He stated he

had telephone contact with the child while he was in prison and the half-way

house. The father testified he planned to take care of the child after he was

released from the half-way house.

       We determine the child was removed from the father’s care, as required

by section 232.116(1)(h)(3). Unlike the father in C.F.-H., the father here had

been caring for the child until the time of his incarceration, a few months before


3
  The court was examining sections 232.116(1)(e)(2) and (f)(3), which contain removal
provisions similar to section 232.116(1)(h)(3). See C.F.-H., 889 N.W.2d at 205.
                                        7


the child was removed from the parents’ care. If not for the removal order, the

father would have been able to resume care of the child when he was released

from the half-way house in September 2016. He had a chance at parenting the

child. See id. at 207. We also note the adjudication order provided, “The parents

are informed that the consequences of a permanent removal may include

termination of the parent’s rights with respect to the children.” Cf. id. at 205

(noting the father claimed he had not been informed removal of the child from the

mother could impact his parental rights). Finally, here the child was removed

from the care of the mother, unlike the child in C.F.-H.       The C.F.-H. court

expressed “no view on the question of whether a removal of the child from one

parent is sufficient to support termination of parental rights of a noncustodial

parent.” Id. at 207 n.2. We conclude it is. The code and our case law provide

the word “parents” should be construed to include both the singular and the

plural. See Iowa Code § 4.1(17); In re Marriage of N.M., 491 N.W.2d 153, 155

(Iowa 1992). In this case, the requirement that the child be removed from the

“parents” thus means either or both parents.

      We also determine there is clear and convincing evidence in the record to

show the child could not be safely returned to the father’s care. See Iowa Code

§ 232.116(1)(h)(4).   The father has a long history of substance abuse and

criminal conduct. He began using illegal drugs when he was nineteen years old.

The father testified he successfully completed substance-abuse treatment seven

times but had relapsed after previous treatment programs. The father testified he

had either been in prison or on parole for the last twenty years, except for a six-
                                          8


month period. The father testified he had cared for the child for about the first

year of her life, but he also stated he had occasionally used methamphetamine

during that time.

       We conclude the juvenile court properly terminated the father’s parental

rights under section 232.116(1)(h).

       IV.      Best Interests

       The father claims termination of his parental rights is not in the child’s best

interests. In considering a child’s best interests, we give consideration “to the

child’s safety, to the best placement for furthering the long-term nurturing and

growth of the child, and to the physical, mental, and emotional condition and

needs of the child.” Id. § 232.116(2); In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).

We find termination of the father’s parental rights is in the child’s best interests.

The evidence does not show the father is in a position to successfully care for the

child’s needs.      During the time the father previously cared for the child he

engaged in criminal conduct and used illegal drugs.

       The father also claims the juvenile court should have decided not to

terminate his parental rights based on the closeness of the parent-child

relationship.    See Iowa Code § 232.116(3)(c).       The juvenile court found the

parents’ actions “demonstrate to the Court that the bond is not so strong to be

detrimental to [the child] if termination of parental rights occurred.” The court

noted the father had only two supervised visits with the child after his release

from the half-way house. We conclude the juvenile court properly decided not to

apply the exception found in section 232.116(3)(c).
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We affirm the decision of the juvenile court.

AFFIRMED.
