                       IN THE COURT OF APPEALS OF IOWA

                                     No. 19-1063
                              Filed September 11, 2019


IN THE INTEREST OF A.R. and S.R.,
Minor Children,

J.R., Father,
       Appellant.
________________________________________________________________


          Appeal from the Iowa District Court for Black Hawk County, Daniel L.

Block, Associate Juvenile Judge.



          The father appeals the termination of his parental rights to his two

children. AFFIRMED.




          Jamie L. Schroeder of The Sayer Law Group, P.C., Waterloo, for appellant

father.

          Thomas J. Miller, Attorney General, and Anna T. Stoeffler, Assistant

Attorney General, for appellee State.

          Tammy L. Banning of Juvenile Public Defender’s Office, Waterloo,

guardian ad litem for minor children.



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


TABOR, Judge.

      A father, Jeremy, appeals the termination of his parental rights to his two

children, A.R. born in 2007, and S.R., born in 2011.1           The juvenile court

terminated Jeremy’s parental rights to both children under Iowa Code

section 232.116(1) (2019), paragraphs (e), (f), (j), and (l).     Jeremy does not

dispute the statutory grounds for termination. Instead, he maintains termination

of his parental rights is not in the children’s best interests.    See Iowa Code

§ 232.116(2). He also relies on the closeness of his bond with A.R. and S.R. to

argue the juvenile court should have placed the children in a guardianship with

their maternal grandmother rather than terminate his parental rights. See id.

§ 232.116(3)(c).

      Those arguments did not dissuade the juvenile court from terminating. It

reasoned: “Permanency through an adoptive placement is clearly in the

children’s best interests.” After our independent review of the record, we reach

the same conclusion as the juvenile court.2

      Given Jeremy’s concession of the statutory grounds for termination, we

start our analysis with the best-interests question. See In re P.L., 778 N.W.2d

33, 40 (Iowa 2010) (“Because the father does not dispute the existence of the

grounds, we do not have to discuss this step.”). In doing so, we give primary

consideration to the children’s safety, to the best placement for furthering their




1
 The children’s mother is deceased.
2
 We review termination decisions de novo. In re M.W., 876 N.W.2d 212, 219 (Iowa
2016).
                                            3


long-term nurturing and growth; and to their physical, mental, and emotional

condition and needs. Iowa Code § 232.116(2).3

         Jeremy’s methamphetamine abuse and dealing has long been an issue

for the family. Because of that drug exposure, as well as domestic violence, the

Iowa Department of Human Services (DHS) removed the children from their

home in December 2012 through January 2014.                    The children’s second

removal—which led to these termination proceedings—took place in February

2018.4      The    primary    danger    again    was    Jeremy’s     involvement     with

methamphetamine. Following the children’s removal, the State convicted Jeremy




3
  The best-interests consideration may include:
                (a) Whether the parent’s ability to provide the needs of the child is
        affected by the parent’s mental capacity or mental condition or the
        parent’s imprisonment for a felony.
                (b) For a child who has been placed in foster family care by a
        court or has been voluntarily placed in foster family care by a parent or by
        another person, whether the child has become integrated into the foster
        family to the extent that the child’s familial identity is with the foster family,
        and whether the foster family is able and willing to permanently integrate
        the child into the foster family. In considering integration into a foster
        family, the court shall review the following:
                        (1) The length of time the child has lived in a stable,
                satisfactory environment and the desirability of maintaining
                that environment and continuity for the child.
                        (2) The reasonable preference of the child, if the
                court determines that the child has sufficient capacity to
                express a reasonable preference.
                (c) The relevant testimony or written statement that a foster
        parent, relative, or other individual with whom the child has been placed
        for preadoptive care or other care has a right to provide to the court.
Iowa Code § 232.116(2) (a)–(c).
4
  When Jeremy learned police had a warrant for his arrest, he went “on the run.” The
children’s stepmother tested positive for methamphetamine, so the DHS placed the
children with their maternal grandmother. They have remained in her care throughout
the case.
                                            4


of possession with intent to distribute methamphetamine.                He received an

indeterminate prison sentence of twenty-five years in prison.5

       In the years between the children’s two removals, they were present in the

home while their father perpetrated domestic violence against their mother and

then their step-mother, their mother overdosed and ultimately died, and the

police conducted a drug raid. After their second removal, the children reported

having often gone without food while in Jeremy’s care. They also recalled a

turbulent household, where Jeremy would break televisions, phones, plates, and

cupboards. The children would cower in their bedroom when their father was

acting violently.

       Despite having inflicted that trauma, Jeremy refused to allow the children

to participate in counseling while in his custody. Only after they entered their

grandmother’s care did they start therapy.

       As for his own mental health, Jeremy did not engage in therapy or drug

treatment between the second removal and his arrest.6                   Neither was he

participating in substance-abuse or mental-health programming while in prison.

       Since Jeremy’s incarceration, the DHS has facilitated visitation with the

children. When the Department of Corrections placed him at Clarinda, the visits

were by Skype technology.         When Jeremy moved to Anamosa, the children

started to visit twice a month in person. As she has learned about her father’s


5
  The social worker testified Jeremy “could be out in three years,” according to his prison
counselor.
6
  Jeremy’s addiction is deep-seated. He first used methamphetamine when he was
fourteen years old. He has participated in substance-abuse treatment and relapse
prevention in the past. Jeremy completed substance-abuse evaluations in November
2017 and April 2018, but never followed through with the recommendations. He did not
participate in drug testing as requested.
                                            5


situation, eleven-year-old A.R. has been more vocal about her frustrations with

him being unavailable because of his “bad choices.”              But the DHS worker

acknowledged both children have a bond with Jeremy and enjoy their visits—

even though they were nervous for the first interaction in the prison setting.7

       The DHS worker opined it is not in the children’s best interest to wait for

Jeremy to become a stable parent. In her words, “The children have already

waited 20 months for him and he has made no progress.”                   The children’s

guardian ad litem also advocated for termination. She aptly summarized why

severing Jeremy’s parental rights serve the children’s best interests:

       These children have waited long enough for their father to make
       himself a safe, appropriate caregiver for them. The children are in
       play therapy addressing grief and loss issues related to the death of
       their mother, but also addressing the trauma that they have
       endured while they were in the custody of their parents: witnessing
       domestic violence, being present when the police raided the home,
       finding, I believe, seven grams of methamphetamine and
       paraphernalia in the family home, just the food issues that, that
       have been described as well. As time goes on more is coming out
       from the children, and I think that’s because they are in a safe,
       stable environment with their grandmother.

       Convinced by those sentiments, we reject Jeremy’s assertion that

termination is not in the long-term best interests of his children. See In re J.E.,

907 N.W.2d 544, 547 (Iowa Ct. App. 2017) (holding it was not in child’s best

interests to wait for permanency while her incarcerated father struggled “to get

his own life together”); see also In re J.E., 723 N.W.2d 793, 802 (Iowa 2006)

(Cady, J., concurring specially) (stating a child’s safety and need for a permanent

home are the “defining elements” in determining best interests). Jeremy’s drug

7
 The maternal grandmother has tried to facilitate the children’s ongoing relationship with
Jeremy, putting money in his prison account so he can “get the kids a snack or use the
phone.”
                                         6


dealing and domestic abuse created an unsafe home life for his children.

Because Jeremy has not committed to tackling his addiction, we share the

juvenile court’s concern that he “is unwilling to abstain from the use of illegal

substances and place the children as a priority in his life.” In re A.B., 815 N.W.2d

764, 778 (Iowa 2012) (reiterating that courts can glean insight for determining

children’s long-range best interests from parent’s past performance).

       On top of Jeremy’s substance abuse, we consider that his imprisonment

for a felony affects his ability to provide for the children’s needs.     See Iowa

Code § 232.116(2)(a).    Here, the father will not be starting to rebuild his life

outside prison for at least three years. See In re L.M., 904 N.W.2d 835, 840

(Iowa 2017) (finding termination of parental rights was in child’s best interests

because the incarcerated mother’s “journey is likely a long one and it is far from

complete”).

       On the flipside, the children feel safe and well-cared for by their maternal

grandmother. Cf. Iowa Code § 232.116(2)(b)(1) (providing that in determining

best interests, court may consider integration into foster family); In re J.B.L., 844

N.W.2d 703, 706 (Iowa Ct. App. 2014). The grandmother told the juvenile court:

“it makes me cry when I hear that half the time they weren’t being fed, that they

had to crawl underneath their bed because of violence, and it just breaks my

heart.” At the time of the termination hearing, she remained an adoptive option

for the children. See Iowa Code § 232.116(2)(c) (providing that in determining

best interests, courts may consider the statement of a relative caring for

children). The social worker testified the grandmother was “open to” the children
                                              7


having contact with Jeremy “if he’s doing well.” After considering all the factors in

section 232.116(2), we find termination is in the children’s best interests.

       Although the parties do not cite In re Q.G., 911 N.W.2d 761 (Iowa 2018),

we take a moment to consider whether its best-interest analysis impacts the

outcome here. Q.G. involved a private, chapter 600A termination, but it relied in

part on section 232.116(2) “to flesh out the best-interest-of-the-child test.” 911

N.W.2d at 771. Like Jeremy, the father in Q.G. physically abused the mother

more than once while the children were present. That father was later charged

with and convicted of domestic abuse assault, child endangerment, and

possession of methamphetamine. Id. at 764. The Q.G. court provided a brutally

honest recitation of the father’s transgressions but ultimately held it was “not

willing to write off” the incarcerated father’s “potential positive contributions” to his

children’s lives. Id. at 771–74; see also In re B.H.A., No. 18-0813, 2019 WL

2385902, at *5 (Iowa Ct. App. June 5, 2019) (opining, also in a chapter 600A

case, “we should not be too quick to find termination of an incarcerated parent’s

rights is in the child’s best interests”).

       To be sure, overlap exists between the best-interest considerations in

section 232.116(2) and section 600A.1(2).8 See In re A.H.B., 791 N.W.2d 687,


8
  In the private-termination context, the legislature provided this description of best
interests:
        The best interest of a child requires that each biological parent
        affirmatively assume the duties encompassed by the role of being a
        parent. In determining whether a parent has affirmatively assumed the
        duties of a parent, the court shall consider, but is not limited to
        consideration of, the fulfillment of financial obligations, demonstration of
        continued interest in the child, demonstration of a genuine effort to
        maintain communication with the child, and demonstration of the
        establishment and maintenance of a place of importance in the child’s life.
Iowa Code § 600A.1(2).
                                         8


690 (Iowa 2010) (“We have not provided a complete analytical framework to

determine the best interest of the child under Iowa Code chapter 600A, but we

find the statutory best interest framework described in Iowa Code section

232.116(2), (3) to be useful.”). But we do not apply identical reasoning in both

instances. In chapter 232 terminations, unlike chapter 600A terminations, the

juvenile court is concerned with establishing permanency within a statutory-

prescribed timescale after the State removes a child from his or her parents.

Compare Iowa Code § 232.104(2), with id. § 600A.9; see also In re H.S., 805

N.W.2d 737, 748 (Iowa 2011) (describing distinctions between chapters 232 and

600A and stressing “child’s safety and need for a permanent home are

paramount concerns” under chapter 232); see also In re M.M.S., 502 N.W.2d 4, 9

(Iowa 1993) (observing “[t]here is not always the urgency in chapter 600A

termination cases that we have noted in termination cases under the juvenile

code”).

       Thus, in Q.G., it was significant to the court that the incarcerated father

would discharge his sentence in about a year. 911 N.W.2d at 764, 768. The

court placed a stronger emphasis on the long-term interests of the children to

have a relationship with their father. Id. at 774. And the father had demonstrated

strides toward improving his parenting with substance-abuse treatment and

parenting classes. Id. at 767–68; see also B.H.A., 2019 WL 2385902, at *3.

       Thus, our legislature and case law do not emphasize a concern with

expeditious permanency in the context of private terminations as they do in

chapter 232 terminations. Given that greater urgency here, we decline to find it

is in these children’s best interest to wait any longer for permanency.
                                          9


       As part of his best-interest argument, Jeremy urges a guardianship with

the maternal grandmother would have benefited the children more than

termination. He contends the closeness of the parent-child bond weighs against

termination. See Iowa Code § 232.116(3)(c). Jeremy points to his “strained

relationship” with the maternal grandmother since the death of the children’s

mother. Given that strain, he “does not believe the maternal grandmother will

facilitate contact between him and the children without a guardianship in place.”

       We disagree that transferring guardianship and custody of A.R. and S.R.

to the maternal grandmother is the optimal resolution. “[G]uardianship is not a

legally preferable alternative to termination.” In re A.S., 906 N.W.2d 467, 477

(Iowa 2018); see also In re of B.T., 894 N.W.2d 29, 34 (Iowa Ct. App. 2017)

(approving order for guardianship with grandmother rather than terminating

mother’s parental rights where “mother and the grandmother [had] a close,

mature, and healthy relationship that is free of conflict”).        A child in a

guardianship remains in flux because a parent can eventually petition for its

closing.   See, e.g., Iowa Code §§ 232.104, 633.675.       A guardianship is not

permanent, and S.R. and A.R. would not experience the certainty of adoption.

       Finally, while the children enjoy a loving relationship with Jeremy, they

have remained outside his custody for nearly two years. They have achieved

stability and are receiving the therapy they need while in their grandmother’s

care. Contrary to Jeremy’s contention, section 232.116(3)(c) does not preclude

termination. See In re M.W., 876 N.W.2d 212, 225 (Iowa 2016).

       AFFIRMED.

       Greer, J., concurs; Potterfield, P.J., dissents.
                                          10


Potterfield, Presiding Judge (dissenting).

       I respectfully dissent. The majority distinguishes the present case with

that of In re Q.G., 911 N.W.2d 761 (Iowa 2018), but I am more persuaded by the

similarities.    Each    involves   an   imprisoned    father   with   a   history   of

methamphetamine use and violent outbursts.            In Q.G., our supreme court

focused on the “potential positive contributions” the father could make to his

children’s lives and reversed the termination of the father’s rights. 911 N.W.2d at

774. Similarly, in another case involving an imprisoned father with a history of

drug abuse, this court affirmed the district court’s decision not to terminate,

concluding, “The supreme court’s analysis in Q.G. suggests we should not be too

quick to find termination of an incarcerated parent’s right is in the child[ren]’s best

interests . . . .” In re B.H.A., No. 18-0813, 2019 WL 2385902, at *5 (Iowa Ct.

App. June 5, 2019).9

       I recognize that Q.G. and B.H.A. are both cases involving private

terminations under Iowa Code chapter 600A while the present case is governed

by chapter 232. But, unlike the majority, I am not convinced there is a greater

urgency in terminating the rights of an incarcerated parent in one framework over

the other. Moreover, in this case, like in Q.G. and B.H.A., the court’s decision

hinges on the children’s best interests. The best-interests standard is largely the

same under both chapter 232 and chapter 600A terminations. See Q.G., 911

N.W.2d at 771 (“In addition to applying the language of Iowa Code section

600A.1, we have also borrowed from Iowa Code section 232.116(2) and (3) to

9
  Because our analysis is based on step two of the three-step analysis, we need not
consider the father’s argument that the closeness of the parent-child bond should
prevent termination. See Iowa Code § 232.116(3)(c).
                                          11


flesh out the best-interest-of-the-child test. We consider the child’s ‘physical,

mental, and emotional condition and needs’ and the ‘closeness of the parent-

child relationship.’” (citations omitted)); In re A.H.B., 791 N.W.2d 687, 690 (Iowa

2010) (“We have not provided a complete analytical framework to determine the

best interest of the child under Iowa Code chapter 600A, but we find the statutory

best interest framework described in Iowa Code section 232.116(2), (3) to be

useful.”).

          For these reasons, I would reverse the termination of the father’s parental

rights.
