                      IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0272
                               Filed April 18, 2018


IN THE INTEREST OF A.L. and B.L.,
Minor Children,

C.L., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Romonda D. Belcher,

District Associate Judge.



       A father appeals the juvenile court order terminating his parental

relationship with two children. AFFIRMED.



       Bryan P. Webber of Carr Law Firm P.L.C., Des Moines, for appellant father.

       Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant

Attorney General, for appellee State.

       Nicole Garbis Nolan of Youth Law Center, Des Moines, guardian ad litem

for minor children.



       Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
                                             2


TABOR, Judge.

       A father, Cole, challenges the juvenile court order terminating his parental

relationship with his nine-year-old son, B.L., and his five-year-old daughter, A.L.1

The order could not have come as a surprise. More than a year earlier, our court

sent a “simple” message to Cole: “take positive steps to comply with the [Iowa

Department of Human Services (DHS)] and court orders or [you] may face

termination of [your] parental rights at some time in the future.” In re B.L., No. 16-

0878, 2016 WL 6269888, at *9 (Iowa Ct. App. Oct. 26, 2016). But Cole did not

comply with the court’s expectations and instead was convicted of child

endangerment—sacrificing precious visitation time with his children. In light of

these circumstances, we reject Cole’s challenge and affirm the termination order.2

       I.      Facts and Prior Proceedings

       Cole married Tabitha in 2013. They were raising three children—A.C., who

was born in 2009, in addition to B.L. and A.L. Cole is the biological father of B.L.

and A.L. Tabitha is the biological mother of the two girls, A.C. and A.L. In 2015,

A.C. accused Cole of sexual abuse. Cole acknowledged touching the girl’s vagina,

but claimed it was for medical reasons. A child-protective-service investigation

determined A.C.’s accusations were credible and issued a founded abuse report.


1
  The juvenile court also terminated Tabitha’s parental rights to A.L. but she is not a party
to this appeal. The State did not ask to terminate the parental rights of B.L.’s mother,
Sara, who was granted custody of that child.
2
  We review termination cases de novo, which means we examine both the facts and law
and decide anew those issues properly preserved and presented. See In re L.G., 532
N.W.2d 478, 480–81 (Iowa Ct. App. 1995). We are not bound by the juvenile court’s
factual findings, but we give them weight, especially when witness credibility is critical to
the outcome. See In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). The State must offer
clear and convincing proof, which means we see no “serious or substantial doubts as to
the correctness [of] conclusions of law drawn from the evidence.” In re D.W., 791 N.W.2d
703, 706 (Iowa 2010) (quoting In re C.B., 611 N.W.2d 489, 492 (Iowa 2000)).
                                          3


The DHS implemented a safety plan, but the parents did not follow it. The juvenile

court approved a removal order for all three children in May 2015. The court

adjudicated the children in need of assistance (CINA) in June.

       In February 2016, the juvenile court approved the DHS case permanency

plan that required Cole to have a sex-abuse assessment if he “is not actively

engaged in individual therapy.” In April, social worker Natasha Richman updated

the court on Cole’s compliance with the plan and expressed concern that he

missed therapy appointments and then stopped seeing the counselor who was

recommended for sexual offenders. Instead, Cole reported attending therapy but

would not disclose the name of the counselor or the agency providing services.

Despite the case worker’s concerns, the juvenile court ordered B.L. returned to

Cole and A.L. returned to Tabitha, with any visitation between A.L. and Cole to be

“professionally supervised.” Our court reversed that order in October 2016, finding

a return to their parents was not in the children’s best interests. Id.

       On remand in November, the juvenile court afforded the parents an

additional six months to work toward reunification. For Cole to achieve that goal,

the court imposed the following conditions:

       The father shall complete a sex-abuse assessment if not actively
       engaged in individual therapy that encompasses sexual abuse
       allegations until successfully discharged, comply with FSRP [family
       safety, risk, and permanency services] recommendations and
       consistently attend scheduled visits, transition from professionally
       supervised visits, comply with terms of probation, provide drug
       screens as requested, refrain from illegal substance use, and be
       supportive of and as requested, actively participate in children’s
       therapy.
                                           4


       Cole’s case took a downward turn a few months later. In February 2017,

Cole engaged in a “physical altercation” with his father, who was the caregiver for

the children. The paternal grandfather told police Cole held him down while

Tabitha punched him in the face. The children witnessed the assault. Cole also

prevented the grandfather from dialing 911. The State charged Cole with multiple

crimes, and the juvenile court suspended visitation. In September, Cole pleaded

guilty to child endangerment and received a suspended sentence. The district

court modified the criminal no-contact order to allow the DHS to restart visitation

and reunification efforts. The parents asked for therapeutic visits to ease back into

the children’s lives, but few interactions took place because the State already filed

a petition to terminate parental rights.

       The juvenile court held a two-day termination trial in October 2017. Social

worker Richman testified Cole had not met the DHS expectations regarding

therapy because Cole was not seeing a “sex-abuse therapist.” Cole testified he

did discuss the sexual abuse issue with his counselor, Michael Huff, but Cole also

continued to deny he molested A.C. Cole acknowledged he had not met the court’s

expectation of progressing past supervised visitations due to his criminal

conviction. Cole also called Huff as a witness. Huff testified he did not perform a

sexual-abuse assessment of Cole, and did not provide Cole with sexual-offender

treatment. In a nod to A.C.’s accusations, Huff introduced Cole to a children’s book

in the counseling office that described “good touch and bad touch” from a child’s

perspective.

       In January 2018, the juvenile court issued its order terminating parental

rights, citing Iowa Code section 232.116(1)(d) and (f) (2017).
                                         5


       II.    Legal Analysis

       In his petition on appeal, Cole raises three claims: (1) the State failed to

offer clear and convincing evidence on the statutory grounds for termination,

(2) termination was not in the children’s best interests, and (3) the juvenile court

should have declined to terminate because relatives have legal custody of the

children. We will address each issue in turn.

       A.     Statutory Grounds

       When, as here, the juvenile court rests its decision on more than one

subsection of Iowa Code section 232.116(1), we may affirm on any ground

supported by clear and convincing evidence. D.W., 791 N.W.2d at 707. We will

address paragraph (f), which requires proof of the following elements: (1) the

children are four years of age or older; (2) they have been adjudicated as CINA

under section 232.96; (3) they have been removed from the physical custody of

the parents for at least twelve of the last eighteen months, or for the last twelve

consecutive months and any trial period at home has been less than thirty days;

and (4) the State offered clear and convincing evidence that at the present time

the children cannot be returned to the parent’s custody as provided in section

232.102. Iowa Code § 232.116(1)(f).

       Cole contests only the fourth element, asserting “he did comply with the

court’s directives insofar as attending individual therapy regularly and that he

addressed the sexual-abuse allegations with his therapist.” Cole also contends he

could meet the children’s needs and had been able to do so “throughout their lives.”

       We are not persuaded by Cole’s position.          The juvenile court aptly

summarized the situation: “the parents’ past behavior and lack of demonstrated
                                          6


change show that the children are at continued risk for the same harm that has led

to a removal since May 2015. Further, since the criminal behavior in February

2017, the children are at risk for additional adjudicatory harms.” Our supreme court

has reasoned that a parent’s failure to address his role in sexual abuse may hurt

his chances of regaining custody and care of his children. In re C.H., 652 N.W.2d

144, 150 (Iowa 2002). In this case, Cole deepened his difficulties by assaulting

his father in front of his children, and thereby forfeiting his right to visitation for

many months. Clear and convincing evidence supported termination under section

232.116(1)(f).

       B.     Best Interests

       Cole argues even if the State met its burden under section 232.116(1),

termination is improper because it does not serve the best interests of the children

under sections 232.116(2) and 232.116(3)(c). See In re M.S., 889 N.W.2d 675,

684 (Iowa Ct. App. 2016) (concluding closeness of the parent-child relationship

may preclude termination under certain circumstances). Cole contends he shares

a strong bond with his children. He also complains that termination results in

separation of the siblings. He proposes termination could be avoided if B.L. were

placed with Sara under a custodial order and a guardianship was established for

A.L. with her grandparents.

       As an initial matter, Iowa courts do not prefer guardianships as a legal

alternative to termination of parental rights. See In re A.S., 906 N.W.2d 467, 478

(Iowa 2018) (questioning “whether transferring guardianship and custody to the

grandparents would actually provide more stability and safety for the child”). Cole’s

situation is not the exceptional case where the parent and would-be guardian have
                                           7

a “healthy relationship that is free of conflict.” See In re B.T., 894 N.W.2d 29, 34

(Iowa Ct. App. 2017). As the State points out, Cole’s “recent participation in an

assault against the children’s grandfather that led to the father pleading guilty to

child endangerment charges is the strongest argument against a guardianship for

A.L. with the grandparents.”

       On the closeness of the parent-child relationship, the record reveals a bond

did exist between Cole and the children at the time of removal, but it has weakened

since the assault and suspension of visitation. After the assault, both children

expressed fear of Cole. B.L. did not want to resume visitation with his father, and

A.L. missed her father, but was scared to see him by herself. Given these facts,

section 232.116(3)(c) was not a strong countervailing factor.

       As for the separation of the siblings, we agree brothers and sisters should

be kept together whenever possible. See In re T.J.O., 527 N.W.2d 417, 420 (Iowa

Ct. App. 1994). But “the paramount concern” must be the children’s best interests.

Id.   Best interests are measured under the legislative framework in section

232.116(2). That provision focuses on the children’s safety, as well as the best

placement for furthering their long-term nurturing and growth, and their physical,

mental, and emotional condition and needs. See In re P.L., 778 N.W.2d 33, 40

(Iowa 2010). Here, B.L.’s mother and A.L.’s grandparents appear to offer the most

promising future for these children. We reject Cole’s argument that termination of

his parental rights was not in their best interests.
                                         8


       C.     Relative Custody

       Finally, Cole alleges the juvenile court should have declined to terminate

his parental rights because relatives have custody of both children—B.L. is with

his mother, Sara, and A.L. is with grandparents. See Iowa Code § 232.116(3)(a).

We first note the juvenile court did not bestow “legal custody” of A.L. on the

grandparents as contemplated by section 232.116(3)(a). See In re A.M., 843

N.W.2d 100, 113 (Iowa 2014). As for B.L., just because he is in his mother’s

custody is not cause for preserving the parental rights of his father. The factors

in section 232.116(3) are permissive. Id. In this case, the juvenile court gave

sound reasons for not invoking those permissive factors:

       This court has considered the overall record, the lack of engagement
       in services to address the matter that bought these children under
       the court’s jurisdiction, the parents’ guilty plea to an act of child
       endangerment where they admittedly became involved in a conflict
       with the placement of the children at that time and the disruption of
       the children’s placement. Not only did this matter substantially set
       the parents back in their quest for reunification, it reportedly had a
       major impact on the children.

We cannot add anything further to the juvenile court’s clear view of the case.

       AFFIRMED.
