                       IN THE COURT OF APPEALS OF IOWA

                                      No. 15-1765
                               Filed December 23, 2015


IN THE INTEREST OF B.K. AND J.K.,
Minor Children,

B.K., Father,
Appellant.
________________________________________________________________


          Appeal from the Iowa District Court for Black Hawk County, David F.

Staudt, Judge.



          A father appeals the juvenile court’s termination of his parental rights to

his children, B.K. and J.K. AFFIRMED.




          Robert M. Bembridge of Swisher & Cohrt, P.L.C., Waterloo, for appellant

father.

          Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant

Attorney General, for appellee State.

          Timothy Baldwin of the Juvenile Public Defender’s Office, Waterloo,

attorney and guardian ad litem for minor children.



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

       A father appeals the juvenile court’s termination of his parental rights to

his children, B.K. and J.K. He argues the court erred when it failed to authorize a

six-month extension of the proceedings pursuant to Iowa Code section

232.104(2)(b) (2015).    He also argues the court should have placed more

emphasis on keeping his children placed together and placing them with a

relative.   We conclude on our de novo review that the evidence before the

juvenile court did not support a determination that the need for removal of the

children from their home would no longer exist after an additional six months.

We further conclude that termination of the father’s parental rights was supported

by clear and convincing evidence and the placement of the children took into

account the best interests of the children. We therefore affirm.

   I. Background

       The father has two children by the same mother, B.K. and J.K. B.K. was

born in 2009. J.K. was born in 2011. The mother also has an older child, Z.W.,

whom the father treated as his child. Z.W. factors into the father’s argument on

appeal, although the termination case we now review does not directly deal with

that relationship. The family has had a history of involvement with the Iowa

Department of Human Services (DHS) and the juvenile court system.             The

children have been removed from the parents’ home three times since 2012,

most recently on May 7, 2014. The children have remained out of the parents’

home since that time. Various DHS services have been offered to the family

since the children were adjudicated to be children in need of assistance on

August 27, 2012.
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        The father is currently in prison, serving a twenty-one-year sentence. He

has been continuously incarcerated since just prior to the children’s most recent

removal. He had not seen his children for one and one-half years at the time of

the September trial of the State’s petition for termination of parental rights. The

father was sentenced on January 5, 2015, on multiple counts: six separate

counts of theft in the third degree, one count of burglary in the third degree, and

one count of felon in possession of a firearm. He will be eligible for parole in

either December 2015 or January 2016, although the record is somewhat

conflicting on this point. Either way, the father’s incarceration has lasted for the

duration of the children’s most recent removal, and accordingly he has not had

any face-to-face contact with them during that time period. By all accounts, he

has been consistently involved in his children’s lives to the extent that one can be

while in prison, participating in regular phone conversations and mailing his

children letters, drawings, and DVD recordings of himself reading books aloud to

them.

        However, there is no guarantee the father will be granted parole when he

goes before the parole board. Furthermore, he has a long history of trouble

when not in the controlled environment of prison. He has a criminal record that

by his own description is “horrible looking,” and has been in prison before. He

has some mental health problems and has had significant substance abuse

issues involving opiates, methamphetamine, and marijuana that appear to have

ceased only because of his incarceration.       In the past, he has intentionally

falsified the results of drug tests, going so far as to use a “Whizzinator”—a
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prosthetic penis with a reservoir used to provide clean urine samples consisting

of urine that is either someone else’s or synthetic.

          When he is paroled, significant time and services would be required to

ensure the safety of the children in his care. On this point, a social worker from

DHS testified at the permanency review and termination hearing held on

September 3, 2015.         She recommended termination of the father’s parental

rights:

                   ASSISTANT COUNTY ATTORNEY: Do you think it’s in the
          children’s best interests to wait until—and give him additional time
          to see if he’s, in fact, paroled and then comes into the community to
          be a parent for [B.K.] and [J.K.]? DHS SOCIAL WORKER: No, I do
          not.
                   ASSISTANT COUNTY ATTORNEY: Why not?                   DHS
          SOCIAL WORKER: He’s serving a twenty-one-year sentence and
          he’s—at this point I think he’d be a year-and-a-half, maybe a little
          more than a year-and-a-half into that sentence and I don’t—there’s
          no guarantee that he would be paroled. I think additional time is
          going to prolong the inevitable. If he gets out—Let’s say that he
          were to get out in December, that would still not give him adequate
          time to address the issues that we would need to see addressed to
          safely return the children to his care.
                   ASSISTANT COUNTY ATTORNEY: Do you think it would be
          difficult to—Even if he was granted the time and was out in January
          or December, do you think it would difficult to know what is what
          given his admission of attempts to deceive in the past? DHS
          SOCIAL WORKER: I do think that he has—he has really opened up
          and been much more honest since he has been incarcerated. I
          don’t know if that would continue if—if he were not under strict
          supervision. I don’t know. That’s hard to answer.

At the same hearing, the father testified by telephone and was asked how much

time he thought he would need in order to establish that his children could be

returned to his care. His answer echoed the estimation of the time necessary for

reunification voiced by the DHS social worker:

               ASSISTANT COUNTY ATTORNEY: It was your testimony I
          need more time. How much time do you need? THE FATHER: I
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          need to be released in potentially sixty more days. Now I know
          there’s not a guarantee, the parole board has the final say, but my
          counselor is pretty confident that I will be released. And then I
          need, you know, ninety days to six months to show the state clean
          UAs, counseling, and mental health.

          On October 8, 2015, the juvenile court issued an order terminating the

parental rights of both the father and the mother to B.K. and J.K.1 With respect

to the father specifically, the juvenile court stated as follows:

                  [The father] was incarcerated prior to the latest removal of
          the children. He has not had face-to-face contact with his children
          in over one-and-a-half years because of his imprisonment. He has
          attempted to maintain contact through writing and telephone calls.
          There are no services available in prison for [the father]. At this time
          he is unavailable as a parent. He has been ordered to serve a
          sentence that is up to twenty-one years in prison. He has served
          approximately a year-and-a-half of that sentence. It is possible that
          he could be paroled in December of 2015 or January of 2016.
          There is no certainty that he will be paroled. [The father] has
          recorded videos of himself providing a personalized reading of a
          children’s book while incarcerated.
                  Prior to [the father]’s imprisonment, the Department of
          Human Services had concerns about his substance abuse
          problems, domestic violence problems, and the stability of his
          mental health. It is clear that prior to his entry in the prison system,
          he made little effort to address his substance abuse issues as he
          was using methamphetamine and submitted adulterated drug tests.
          There were allegations of domestic violence.               There is no
          assurance that upon his release that he will not return to his prior
          life of consuming methamphetamine and domestic violence. The
          Court is also concerned that it will not be in the children’s best
          interests to wait for [the father] to be released on parole to
          determine if he could be placement for the children. Should [the
          father] return in January, he would be on parole and would not be a
          potential placement for at least six months to a year depending
          upon his behavior and whether he lives a drug-free lifestyle.

The juvenile court then explained its reasons for terminating the father’s parental

rights:


1
  The mother also had her parental rights terminated as to Z.W., but she has not
appealed the termination of her parental rights as to any child.
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              The Court concludes the State has established by clear and
      convincing evidence that the parental rights of [the father] should
      also be terminated. [The father] has been incarcerated for over the
      last year-and-a-half. Although he has maintained contact with his
      children, there is no clear and convincing evidence at the present
      time that the children could be returned to the custody of [the
      father]. Should [the father] be paroled in January of 2016, he would
      not be able to establish a placement for the children within the six
      month time frame required under the permanency statute. [The
      father] also has no proven track record of being a successful
      parent. He has accusations of domestic violence, admissions of
      drug use, and protective assessment summaries for denial of
      critical care to his children on two occasions.             When not
      incarcerated, [the father] has failed to address his substance abuse
      issues, his mental health issues, and his violent tendencies. The
      Court finds that pursuant to Iowa Code § 232.116(1)(f) that the
      children have been out of [the father]’s custody pursuant to the
      statuted [sic] time frames and that there is clear and convincing
      evidence that at the present time the children cannot be returned to
      the custody of the children’s parent, in this case [the father].

The father appeals.

   II. Standard of Review

      We conduct a de novo review of proceedings terminating parental rights.

In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). An order terminating parental

rights will be upheld if there is clear and convincing evidence of grounds for

termination under Iowa Code section 232.116. In re D.W., 791 N.W.2d 703, 706

(Iowa 2010). Evidence is “clear and convincing” when there are no serious or

substantial doubts as to the correctness of conclusions drawn from it. Id. We

give weight to the factual determinations of the juvenile court, particularly

regarding the credibility of witnesses, although we are not bound by them. Id.

The primary consideration of our review is the best interests of the child. In re

A.B., 815 N.W.2d 764, 773 (Iowa 1012).
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   III. Analysis

       Termination of parental rights under Iowa Code chapter 232 follows a

three-step analysis. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). First, the

court must determine if a ground for termination under section 232.116(1) has

been established. Id. Second, if a ground for termination is established, the

court must apply the framework set out in section 232.116(2) to decide if

proceeding with termination is in the best interests of the child. Id. Third, if the

statutory best-interests framework supports termination of parental rights, the

court must consider if any statutory factors set forth in section 232.116(3) should

serve to preclude termination. Id.

       The father does not argue that the juvenile court lacked clear and

convincing evidence to terminate his parental rights pursuant to Iowa Code

section 232.116(1)(f). Instead, he argues that the juvenile court should have

invoked Iowa Code section 232.104(2)(b) in order to authorize a six-month

extension of the children’s placement after the permanency hearing to give the

father additional time to meet the requirements of the case plan.            Section

232.104(2)(b) allows a juvenile court to:

       [e]nter an order pursuant to section 232.102 to continue placement
       of the child for an additional six months at which time the court shall
       hold a hearing to consider modification of its permanency order. An
       order entered under this paragraph shall enumerate the specific
       factors, conditions, or expected behavioral changes which comprise
       the basis for the determination that the need for removal of the child
       from the child’s home will no longer exist at the end of the
       additional six-month period.

Granting a parent additional time under this statutory subsection is one of several

options available to a juvenile court following a permanency hearing; it is not a
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matter of right. See Iowa Code § 232.104(2)(b); In re H.L., No. 14-0708, 2014

WL 3513262, at *3 (Iowa Ct. App. July 16, 2014).            Moreover, the express

language of the statute requires a court granting such an extension to make a

determination that the need for removal will no longer exist at the end of the six

months. In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005). Finally, a judge

considering a six-month extension under the statute should “constantly bear in

mind that, if the plan fails, all extended time must be subtracted from an already

shortened life for the children in a better home.” Id. at 92–93.

       We find on our de novo review that the juvenile court appropriately

decided against granting the father an additional six months. Given the father’s

ongoing incarceration, with the date of his release being speculative, the juvenile

court could not make the determination that the need for the removal of the

children would cease to exist at the end of a six-month extension. Even if the

court had been provided a definite release date, then additional time would be

required to ensure the father’s success in staying away from drugs and further

criminal activity.

       Finally, we address the father’s contention that the juvenile court should

have done more to ensure the B.K. and J.K. were placed with Z.W. and that all of

the children should have been placed with relatives. The father is correct that

there is a statutory preference for placing siblings together, mandating that if a

court orders the transfer of custody of siblings for placement, then DHS or

whatever other agency receives custody “shall make a reasonable effort to place

the child and siblings together in the same placement.”            See Iowa Code

§ 232.108(1). He is also correct that placing children with relatives is considered
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one of the least restrictive placement options, and that courts “shall make the

least restrictive disposition appropriate considering all the circumstances of the

case” following dispositional hearings.        See Iowa Code §§ 232.99(4),

232.102(1)(a)(1).

       However, we do not believe that the placement of the children in this

instance runs contrary to the best interests of the children, or that the juvenile

court or DHS failed to adhere to their statutory responsibilities. Z.W. was placed

separately from B.K. and J.K. only after behavioral problems necessitated that

result, and the record does not suggest any viable relative placement options

available for B.K and J.K.      An aunt who was a potential placement option

withdrew herself from consideration after a home study found significant issues

with her suitability, and the father’s brother and sister-in-law who were presented

as another option late in the process did not follow through with the necessary

home study. Testimony before the juvenile court indicated that the children were

all doing exceedingly well in their placements. We find that the juvenile court’s

denial of an extension and ordering termination of the father’s parental rights

were in the best interests of the children.

       AFFIRMED.
