                       IN THE COURT OF APPEALS OF IOWA

                                      No. 18-0133
                                 Filed March 21, 2018


IN THE INTEREST OF A.I., F.I., and F.I.,
Minor Children,

A.I., Father,
        Appellant.
________________________________________________________________


          Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,

District Associate Judge.



          The father appeals the termination of his parental rights. AFFIRMED.



          Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for appellant

father.

          Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

          Brent M. Pattison and Brooke Thompson (student attorney) of Drake Legal

Clinic, Des Moines, guardians ad litem for minor children.

          Paul L. White of Juvenile Public Defender Office, Des Moines, attorney for

A.I.




          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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POTTERFIELD, Judge.

         The father appeals the termination of his parental rights to his three children,

A.I, born in 2003; F.I., born in 2006; and F.I., born in 2012.1 The juvenile court

terminated the father’s parental rights to all three children pursuant to Iowa Code

section     232.116(1)(f)    (2017).      We     review   termination-of-parental-rights

proceedings de novo. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018).

         The juvenile court may terminate a parent’s rights pursuant to subsection

(f) when the court finds that all the following have occurred:

                (1) The child is four years of age or older.
                (2) The child has been adjudicated a child in need of
         assistance [(CINA)] pursuant to section 232.96.
                (3) The child has been removed from the physical custody of
         the child’s 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.
                (4) There is clear and convincing evidence that at the present
         time the child cannot be returned to the custody of the child's parents
         as provided in section 232.102.

Iowa Code § 232.116(1)(f).

         Although he states in passing that the juvenile court “erred in finding that

the State had proven certain grounds for termination under Iowa Code section

232.116(1),” the father does not specifically dispute any of the statutory grounds.

Our review of the record establishes that at the time of the termination hearing, the

children were ages fourteen, eleven, and five; had been adjudicated CINA, and

had been removed from their parents’ care for fifteen months. Additionally, the

father conceded at the termination hearing that the children could not be returned

to his care as he was then incarcerated for a probation violation and “still [had]


1
    The mother’s parental rights were also terminated. She does not appeal.
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issues to work on before the children [could] be placed in [his] care.” The statutory

grounds for termination have been proved by clear and convincing evidence.

       Next, the father maintains termination of his parental rights was not in the

children’s best interests because of his bond with the children2 and his commitment

to his sobriety. At the time of the termination hearing, the father had not seen A.I.

in over six months and had not seen the youngest two children in almost five

months. He had been jailed for probation violations four times in the year leading

up to the termination hearing, and he admitted ongoing criminal behavior, including

daily use of methamphetamine until November 21—approximately two weeks

before the hearing. He also admitted he had contact with the mother in violation

of a no-contact order that was entered following a felony conviction for perpetrating

domestic violence against the mother. Although substance abuse and domestic

violence were identified as issues for the father at the time the Iowa Department

of Human Services got involved in September 2016, the father had yet to even

begin a domestic-violence course or a substance-abuse program. Additionally,

the father was on probation with a two-year suspended sentence, and it was

unclear whether he would be allowed to remain on probation due to his recent

violation. In giving “primary consideration to the child[ren]’s safety, to the best

placement for furthering the long-term nurturing and growth of the child[ren], and

to the physical, mental, and emotional condition and needs of the child[ren],”



2
  While the father relies on his bond with the children to argue that termination of his
parental rights is not in their best interests, this argument is more appropriately made
under the permissive factors of subsection (3). See Iowa Code § 232.116(3)(c) (stating
the “court need not terminated the relationship between the parent and the child” if it finds
“that the termination would be detrimental to the child at the time due to the closeness of
the parent-child relationship”).
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termination of the father’s parental rights is in these children’s best interests. See

Iowa Code § 232.116(2).

       Next, the father maintains the court should have exercised its discretion to

save the parent-child relationship because the children were in the legal custody

of relatives. See Iowa Code § 232.116(3)(a). Although a relative having legal

custody of the children “allows the court to avoid terminating parental rights, . . .

the factors ‘are permissive, not mandatory.’” A.S., 906 N.W.2d at 475 (quoting In

re A.M., 843 N.W.2d 100, 113 (Iowa 2014)). “[T]he parent resisting termination

bears the burden to establish an exception to termination under Iowa Code section

223.116(3)(a).” Id. at 476; accord Iowa R. App. P. 6.904(3)(e) (“Ordinarily, the

burden of proof of an issue is upon the party who would suffer loss if the issue

were not established.”). The father has not met his burden of establishing that this

is an appropriate case to save the parent-child relationship; the father has not had

recent contact with the children and continues to struggle with criminality and drug

abuse. Additionally, according to A.I.’s attorney, A.I. supported the termination of

the father’s parental rights.

       Alternatively, the father maintains the court should have placed the children

in a guardianship rather than terminating his parental rights. Although the father

testified he would “support a guardianship with relatives with regard to the[]

children,” no other evidence regarding a guardianship was presented at the

hearing. We have no suggestion of the person the father believed should take on

the guardianship, nor whether any family member was appropriate and willing to

do so. Additionally, the children’s guardians ad litem (GAL) supported the State’s

petition to terminate the father’s parental rights, stating, “We don’t have any
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independent evidence to offer in support of the [termination petition], but we

support the State’s petition and think it’s time for the kids to kind of obtain

permanency through termination of parental rights and the opportunity to be

adopted.” See, e.g., A.S., 906 N.W.2d at 476 (giving weight to the GAL’s testimony

recommending termination of parental rights). We cannot say the juvenile court

should have established a guardianship for these children.

       Finally, the father maintains the juvenile court should have granted his

request for a six-month extension to achieve reunification with the children. The

court may grant an extension only when it determines “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.” Iowa Code § 232.104(2)(b). Here, the father has not made any

strides in the fifteen months that the children have been removed from his care.

Although he has completed a number of substance-abuse evaluations, he has yet

to begin a treatment program. He also has not sought any help dealing with his

history of perpetrating domestic violence and admitted that he has been in contact

with the mother in violation of the no-contact order. While the father testified

alcohol was his “drug of choice,” he also admitted that he had been using

methamphetamine daily until two weeks earlier. Moreover, it remained unclear

whether he would be allowed to remain on probation or be forced to serve his

suspended two-year sentence in prison. Nothing in the record indicates that the

father would be in a position to care for the children in six months; we agree with

the district court’s decision to deny the father’s request for an extension.
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       For all the foregoing reasons, we affirm the termination of the father’s

parental rights to A.I., F.I., and F.I.

       AFFIRMED.
