                      IN THE COURT OF APPEALS OF IOWA

                                   No. 16-2179
                                Filed April 5, 2017


IN THE INTEREST OF C.H. and F.H.,
Minor Children,

C.H., Father,
       Appellant.

________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Colin J. Witt, District

Associate Judge.



       A father appeals the order terminating his parental rights to his five-year-

old son and three-year-old daughter. AFFIRMED.



       Lynn C. Poschner of Borseth Law Office, Altoona, for appellant father.

       Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant

Attorney General, for appellee State.

       Kimberly S. Ayotte of Youth Law Center, Des Moines, guardian ad litem

for minor children.



       Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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TABOR, Judge.

       A father, Chad, appeals the juvenile court’s order terminating his parental

rights to his son, C.H., who was born in July 2011, and his daughter, F.H., who

was born in October 2013. On appeal, Chad argues the State failed to prove the

statutory grounds for termination under Iowa Code section 232.116(1) (2016),

termination was not in the children’s best interests under section 232.116(2), and

the juvenile court should have found a reason to preserve his parental rights

under section 232.116(3)(a) or (c). After examining the matter anew,1 we find

clear and convincing evidence to support the juvenile court’s findings.

       I.     Facts and Prior Proceedings

       Chad and Ashley had a volatile relationship, fraught with domestic

violence and substance abuse. Together they had two children: C.H. and F.H.

In April 2015, the Iowa Department of Human Services (DHS) removed C.H. and

F.H. from Ashley’s care after receiving reports she had been abusing

methamphetamine. At the time of removal, a civil protective order prevented

Chad from having contact with Ashley.2            Ashley had obtained the order in

February 2015. Chad, who had an extensive criminal history, violated the order

later that month by trying to pry open the door of Ashley’s house after she



1
  We review termination-of-parental-rights proceedings de novo. See 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.” See id.
(citation omitted). If the evidence supporting the grounds for termination is clear and
convincing, we will uphold the order terminating parental rights. See In re D.W., 791
N.W.2d 703, 706 (Iowa 2010). We consider evidence to be “clear and convincing” when
“there are no ‘serious or substantial doubts as to the correctness [of] conclusions of law
drawn from the evidence.’” See id. (citation omitted).
2
  The order placed temporary custody of the children with Ashley and granted Chad
visitation.
                                         3


changed the locks.3 But by the time the juvenile court adjudicated the children in

need of assistance (CINA) on May 26, 2015, the protective order had been lifted,

and Chad and Ashley had gotten married.

       The DHS initially placed the children with their maternal great-aunt, but

after she reported concerns about the arrangement, the DHS modified the

placement to the children’s paternal grandmother, Leann. Chad had daily visits

with his children that Leann supervised.      Upon DHS recommendation, Chad

began attending individual therapy.      Although he was initially consistent with

therapy, in September 2015, Chad started missing appointments.               Chad’s

therapist cautioned that Chad would be unable to meet his goals without more

reliable attendance.

       The domestic-violence issues between Ashley and Chad persisted. In

October 2015, Ashley moved out of the home she shared with Chad and began

living at a domestic-violence shelter.    At the review hearing that month, the

juvenile court opined “any romantic relationship between [Chad and Ashley] is a

clear impediment to reunification.” But as evidenced by their regular reports of

the abusive and harassing behavior of the other to the DHS, Chad and Ashley

continued to have contact. More than once, each applied for no-contact orders

against the other and then failed to attend the scheduled court hearing in the

matter. In December 2015, Ashley was arrested for domestic-abuse assault after

Chad reported that she had run him over with her vehicle.




3
 Chad also faced charges for burglary and possession of burglar’s tools in connection
with the incident; those felony charges were later dismissed.
                                         4


       Chad faced legal difficulties of his own. From January to July 2016, he

was incarcerated at the Polk County jail for driving while his license was barred.

While Chad was incarcerated, concerns regarding Chad’s history of domestic

abuse and controlling behavior began to mount. Chad placed more than 300

calls to Leann and Ashley while he was in jail. After Chad’s release to the Fort

Des Moines Men’s Facility in July, he called a former paramour repeatedly until

she brought him personal necessities. She explained to the DHS that Chad

would continue to harass her until she ceded to his demands.

       In August 2016, the State moved to modify the children’s placement after

the DHS reported concerns that Leann had been assaulted by Ashley and failed

to promptly report it. The State also cited reports from the children that they were

visiting Chad at the Fort Des Moines with Leann, who was no longer authorized

to supervise visits “due to [Chad’s] history of controlling behavior and [Leann]

being unable to set appropriate boundaries.” The juvenile court removed the

children from Leann’s care and placed them in foster care.

       Once Chad was released from jail, the DHS requested that he participate

in domestic-violence services.     But Chad refused, denying he had abused

Ashley.   Chad began attending individual therapy again, but as before, his

attendance was sporadic.      In a meeting with the Court Appointed Special

Advocate (CASA), Chad questioned the necessity of continuing with his therapy.

       Chad consistently participated in supervised visitation twice a week with

C.H. and F.H., but he resisted performing parental tasks like helping C.H. with his

homework at the visits.    Moreover, the social workers involved in the matter

reported concerns about Chad’s behavior. C.H. began exhibiting false hopes
                                          5


and expectations about returning to Chad’s care, which the service providers

suspected were the result of C.H.’s conversations with Chad. C.H.’s therapist

noted C.H. was distressed and confused by his conversations with Chad,

seeming to believe others were lying about Chad and keeping him away without

reason. She believed Chad had been coaching C.H.

       Moreover, Chad treated service providers with disrespect. Chad began

making inappropriate comments to and about a family safety, risk, and

permanency (FSRP) worker—commenting on her physical appearance and

referring to his relationship with her as “hot and heavy.” The FSRP worker left

her employer as a result of her concerns and anxiety related to Chad. Another

social worker described Chad as “very angry and defiant” in their interactions.

       On November 7, 2016, the State filed a petition to terminate the parental

rights of Chad and Ashley. The matter proceeded to a hearing on December 7,

and the juvenile court issued an order terminating their parental rights under Iowa

Code section 232.116(1)(f) for C.H. and section 232.116(1)(h) for F.H. The court

found Chad had “not addressed [the] significant risk that he poses for on-going

domestic violence despite having opportunity for [the] same” but, rather, had

“continued to participate, extensively, in domestic violence and choices seeking

to inappropriately control others and situations.”

       Chad appeals the juvenile court’s termination order.4




4
  Ashley also filed a notice of appeal, but it was untimely. See Iowa R. App. P.
6.101(1)(a). Accordingly, the supreme court dismissed her appeal. See Robco Transp.,
Inc. v. Ritter, 356 N.W.2d 497, 498 (Iowa 1984).
                                           6


       II.    Analysis

       A.     Statutory Grounds

       Iowa Code section 232.116(1)(f) and (h) requires the State to prove,

among other things: (1) the children have been removed from the physical

custody of their parents and (2) they cannot be returned to their parents’ custody

at the time of the termination hearing. See Iowa Code § 232.116(1)(f)(3)–(4),

(h)(3)–(4). Chad contends the State failed to prove either of these requirements.

       Removal from custody. Citing In re C.F.-H., 889 N.W.2d 201, 203–08

(Iowa 2016), Chad argues the State did not establish that C.H. and F.H. had

been removed from his custody because at the time of the removal, a protective

order placed the children in Ashley’s custody. Section 232.116(1)(f)(3) and (h)(3)

require that the children be “removed from the physical custody of the child’s

parents” for a defined period of time—twelve of the last eighteen months if the

child is at least four years old and six of the last twelve months if the child is three

years old or younger. See id. § 232.116(1)(f), (h). In C.F.-H., the supreme court

construed the “removal” requirement of section 232.116(1) and found a removal

“invariably involves a dynamic change of circumstance, not stasis.” 889 N.W.2d

at 206. The court reasoned this construction “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. at 207.

       We find clear and convincing evidence the children were removed within

the meaning of section 232.116(1)(f)(3) and (h)(3).         Chad reads C.F.-H. too

broadly. In C.F.-H., no removal occurred; the child remained in the custody of

the mother throughout.      See id. at 202–03.       But here, C.H. and F.H. were
                                         7


removed when the DHS placed the children with a relative in April 2015.5

Because we construe the word “parents” to include both singular and plural, see

Iowa Code § 4.1(17), we find the requirement that C.H. and F.H. be “removed

from the physical custody of the parents” includes removal from either parent.

See In re N.M, 491 N.W.2d 153, 155 (Iowa 1992). The civil protective order’s

placement of the children temporarily with Ashley is inconsequential. By the time

of the termination hearing, both children had been removed from Chad’s custody

for approximately twenty months, fitting well within the timing requirements of

section 232.116(1)(f)(3) and (h)(3).

       Return to custody. Chad next argues the State failed to prove C.H. and

F.H. could not be placed in his custody because at the time of the termination, he

“was in good standing on probation”; “had obtained suitable housing from the

children, separate from [Ashley]”; and had “demonstrated adequate parenting

abilities during his supervised visitation with the children.” We disagree that

Chad’s situation allowed a safe return of the children.

       A child cannot be returned to the care of a parent if the child would either

remain in need of assistance or be at risk of adjudicatory harm. See In re R.R.K.,

544 N.W.2d 274, 277 (Iowa Ct. App. 1995), overruled on other grounds by In re

P.L., 778 N.W.2d 33, 39 (Iowa 2010). Although Chad had obtained appropriate

housing and employment by the time of the termination hearing, he was still not

in a position to resume care of his children.       Chad had not progressed to


5
 The C.F.-H. court specifically declined to address this situation. See 889 N.W.2d at
207 n.2 (“We express 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.”).
                                        8


unsupervised visitation, and he was inconsistent in his participation in mental-

health treatment. Even more concerning, Chad declined services to address his

history of domestic violence and refused to acknowledge his prior abuse of

Ashley. See In re T.S., 868 N.W.2d 425, 435 (Iowa Ct. App. 2015) (finding child

could not be returned to mother’s care when mother had “gained very little insight

over the course of the proceedings about her domestic violence issues and the

dangers they pose to the children”); see also In re J.R., No. 15-0705, 2015 WL

4162343, at *4 (Iowa Ct. App. July 9, 2015) (finding children could not be

returned to father’s care when father had not addressed domestic-violence

issues in therapy).     Further, Chad continued to display controlling and

manipulative behavior—sometimes directed at his children—throughout the

pendency of the proceedings. Accordingly, we are convinced that C.H. and F.H.

could not be safely returned to Chad’s care at the time of the termination hearing.

      B.     Best Interests of the Children

      Finding the statutory requirements satisfied, we turn to whether

termination of Chad’s parental rights was in the children’s best interests. In our

analysis, we “give primary 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.” See Iowa

Code § 232.116(2).

      Chad argues termination is not in the children’s best interests because

they are strongly bonded with him. But a bond between parent and children does

not satisfy the best-interests requirement if a return to the parent’s care would

risk further instability or harm to the children.   See P.L., 778 N.W.2d at 37
                                         9


(requiring the court “to use the best-interest framework established in section

232.116(2)”). In our analysis of the children’s safety and needs, we find Chad’s

past behavior instructive. See In re A.B., 815 N.W.2d 764, 778 (Iowa 2012)

(“Insight for the determination of the child’s long-range best interests can be

gleaned from ‘evidence of the parent’s past performance for that performance

may be indicative of the quality of the future care that parent is capable of

providing.’” (citation omitted)). Chad has a history of criminal activity and was

incarcerated for a significant period of time during the proceedings. He was on

probation at the time of the termination hearing and had recently tested positive

for methamphetamine. He also has a history of unhealthy behavior related to

Ashley. Despite the court’s admonition that Chad and Ashley limit their contact,

Chad continued to pursue a relationship with her throughout the proceedings.

Considering his past behavior and his failure to address the juvenile court’s

fundamental concern, we find termination is in the children’s best interests here.

       C.     Permissive Factors

       Lastly, we consider whether any of the permissive factors in section

232.116(3) outweigh the need for termination. Chad argues the juvenile court

should not have terminated his parental rights because of his bond with his

children or, alternatively, because the children could have been returned to

Leann’s care. Under Iowa Code section 232.116(3)(a) and (c), the court may

decline to terminate parental rights if the court finds it “would be detrimental to

the child at the time due to the closeness of the parent-child relationship,” or “[a]

relative has legal custody of the child.” These factors are permissive; the court

has discretion “based on the unique circumstances of each case and the best
                                          10


interests of the child, whether to apply the factors in this section to save the

parent-child relationship.” In re D.S., 806 N.W.2d 458, 475 (Iowa Ct. App. 2011).

For the reasons stated above, we decline to find the closeness of the parent-child

relationship should prevent termination under these circumstances. Moreover,

section 232.116(3)(a) does not apply because custody was placed with the DHS,

not Leann, at the termination hearing. See In re A.M., 843 N.W.2d 100, 112–13

(Iowa 2014).

          Accordingly, we affirm the juvenile court order terminating Chad’s parental

rights.

          AFFIRMED.
