                       IN THE COURT OF APPEALS OF IOWA

                                      No. 20-0072
                                 Filed August 19, 2020


IN THE INTEREST OF E.G.,
Minor Child,

E.G., Father,
       Appellant.
________________________________________________________________


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

Associate Judge.



          The father appeals the termination of his parental rights to his child.

AFFIRMED.



          Jeremy L. Merrill of Lubinus Law Firm, PLLC, Des Moines, for appellant

father.

          Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

          Karl Wolle of Juvenile Public Defender, Des Moines, attorney, and guardian

ad litem for minor child.



          Considered by Doyle, P.J., and Mullins and Greer, JJ.
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GREER, Judge.

         The father appeals the termination of his parental rights to his child, E.G.,

born in late 2017.1 The juvenile court terminated the father’s rights under Iowa

Code section 232.116(1)(h) (2019). The father challenges the statutory ground

and maintains the loss of his rights is not in the child’s best interests. Our review

is de novo, and our paramount concern is the child’s best interests. See In re J.E.,

723 N.W.2d 793, 798 (Iowa 2006).

         To terminate parental rights under section 232.116(1)(h), the court must find

all of the following by clear and convincing evidence:

                 (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.

The father contests only the fourth element—whether E.G. could be placed in his

care at the time of the termination hearing in December 2019. See Iowa Code

§ 232.116(1)(h)(4) (requiring clear and convincing evidence that the child cannot

be returned to parental custody at the present time); In re D.W., 791 N.W.2d 703,

707 (Iowa 2010) (interpreting the statutory language “at the present time” to mean

“at the time of the termination hearing”). The father maintains the court should not

have terminated his rights because as of the June 24, 2019 permanency hearing,

the court confirmed its goal of returning E.G. to the father’s care at the permanency


1   The rights of the child’s mother were also terminated; she does not appeal.
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review hearing scheduled approximately three months later. He relies on this to

show that E.G. could have been placed in his care at the time of the termination

hearing.

       The Iowa Department of Human Services (DHS) got involved with this

family in September 2018 after learning E.G. had been left in the care of a family

friend since May. The mother had not been in contact since leaving the child with

the friend, while the father had visited E.G. “a handful” of times. E.G. was formally

removed from his parents’ care, and the family friend was given legal custody of

the child with support and supervision from DHS.

       From the outset, DHS had concerns the father perpetrated domestic

violence against the mother during their relationship.       From the start, DHS

recommended the father seek a mental-health evaluation, participate in therapy,

and utilize services to address domestic violence. He failed to do so. Still, his

supervised visits with E.G. went well, and he seemed to be an able parent during

the short periods of time he spent with the child twice each week. With this

weighing in the father’s favor, and with DHS having been involved in the father’s

life since approximately September 2018 with no reports of domestic violence

since then, the juvenile court decided to delay permanency and gave the father a

six-month extension. In its June 24, 2019 order, the court stated the goal was to

reunify E.G. and the father and that “[p]rogress [wa]s being made toward [the]

goal.” The court outlined the plan:

               The child will be able to return home within six (6) months if
       the following specific factors, conditions and/or expected behavioral
       changes are made, eliminating the need for the child’s removal from
       the home:
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                Father engages with a [mental health] therapist no later than
         mid July and reports are provided to DHS, and Father shall be
         permitted to move forward in his therapy by the agency as it is
         imperative Father is consistent with his visits with [E.G.], and those
         visits shall move to unsupervised in August and overnight in
         September.
                Father is open with DHS in vetting his home and making
         certain only safe persons are around [E.G.], and that he assure
         everyone that he will be sober while parenting his child and there will
         be no violence around his child.

Despite the clear terms, the father did not get a mental-health evaluation or begin

therapy by mid-July. Then on August 10, he was arrested for domestic violence

against his girlfriend, with whom he shared a home. The father remained in jail

until August 22. He pled guilty to domestic abuse assault by impeding breathing

or circulation, received a deferred judgment, and was placed on probation for two

years.

         At the time of the scheduled permanency review hearing on September 26,

the father had not completed any of the requirements provided in the court’s June

order. The court ordered the State to file a petition to terminate the father’s rights.

         At the termination hearing on December 6, the father no longer had his own

home and was staying with friends. The father had yet to start the domestic-abuse

program that was ordered as part of his probation. According to a letter from a

mental-health therapist, the father obtained his mental-health evaluation on

October 7, 2019, which recommended continued treatment. He had “continued to

participate in treatment services” and would be “working to learn to identify and

manage his emotions, develop healthy and effective communication skills, and

coping mechanisms.”
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       Determining this case fell into the category of too little, too late, the juvenile

court concluding E.G. could not return to the father’s care because the father did

“not make significant enough advances in his mental wellness and to address

domestic violence in light of the circumstances of this case (especially August 10,

2019). A two year old cannot be returned to a home where the risk of a domestic

violence incident taking place still exists.” We agree. See In re M.M., 483 N.W.2d

812, 814 (Iowa 1992) (“[A] child cannot be returned to the parent under Iowa Code

section 232.102 if by doing so the child would be exposed to any harm amounting

to a new child in need of assistance adjudication.”); see also In re J.R., No. 17-

0556, 2017 WL 2684405, at *3 (Iowa Ct. App. June 21, 2017) (“The threat to

children posed by domestic violence in their homes may serve as the basis for

terminating parental rights” (citing In re C.C., 538 N.W.2d 664, 667 (Iowa Ct. App.

1995))). That the father’s aggression and perpetration of violence has historically

been against romantic partners rather than E.G. does not change our analysis.

See In re D.S., No. 19-0003, 2019 WL 1474054, at *3 (Iowa Ct. App. Apr. 3, 2019)

(affirming termination of father’s rights where “anger and controlling behavior” was

directed at paramour rather than child, stating, “We are not convinced [the father’s]

domestic violence can be so easily cleaved from his parenting promise”); In re

Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct. App. 1994) (embracing

expert testimony “detailing the tragic long-term consequences of spousal abuse

on children who witness the violence”). We recognize the father had recently

started therapy at the time of the termination hearing, but this last-ditch effort—

over a year into DHS’s involvement with the family, nearly three months after the

deadline the court gave in its extension order, and about ten days after the State
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petitioned to terminate—was too late. See In re C.B., 611 N.W.2d 489, 495 (Iowa

2000) (concluding the parent’s efforts were “simply too late” when the parent

waited until “two or three months before the termination hearing” because “[t]ime

is a critical element” and “[a] parent cannot wait until the eve of termination, after

the statutory timelines are expired” to make the necessary efforts). Because E.G.

could not be returned to the father’s care at the December 2019 termination

hearing, the statutory grounds for termination under section 232.116(1)(h) are met.

       The father also claims that the termination of his rights is not in E.G.’s best

interests. See Iowa Code § 232.116(2). At the time of the termination hearing in

December 2019, E.G. was twenty-four months old and had been out of his parents

care since they voluntarily left him with a family friend around eighteen months

earlier. The limitation period set by the legislature has long since passed, see id.

§ 232.116(1)(h)(3), and it is in E.G.’s best interests to view the termination

proceedings with urgency. See C.B., 611 N.W.2d at 494 (“The purpose of these

limitations ‘is to prevent children from being perpetually kept in foster care and to

see that some type of permanent situation is provided for the child[].’”).

Termination of the father’s rights allows E.G. to be adopted and establish

permanency with his new family. See In re H.S., 805 N.W.2d 737, 748 (Iowa 2011)

(recognizing “a child’s safety and his or her need for a permanent home as the

defining elements in a child’s best interests”). This is in his best interests.
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      We affirm the termination of the father’s parental rights.2

      AFFIRMED.




2 The father does not argue a permissive factor of section 232.116(3) applies, so
we do not consider this step. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010)
(declining to address a step not disputed by the parent); see also In re A.S., 906
N.W.2d 467, 476 (Iowa 2018) (confirming it is the parent’s duty to establish that a
permissive factor of subsection 232.116(3) applies).
