                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1553
                            Filed November 27, 2019


IN THE INTEREST OF M.L.,
Minor Child,

R.L., Father,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Christine Dalton,

District Associate Judge.



      A father appeals the termination of his parental rights to his now seven-

year-old son. AFFIRMED.



      Timothy J. Tupper, Davenport, for appellant father.

      Thomas J. Miller, Attorney General, and Gretchen Witte Kraemer, Special

Assistant Attorney General, for appellee State.

      Martha Cox, Bettendorf, guardian ad litem for minor child.



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

       An incarcerated father, Robert, seeks reversal of the juvenile court’s order

terminating his parental relationship with his son M.L., who was born in September

2012. Robert realizes he cannot care for his son at the present time. But he

argues termination is not in M.L.’s best interests. He also believes the court should

have exercised its discretion not to terminate based on their strong father-son bond

and the fact that the Iowa Department of Human Services (DHS) was transitioning

M.L. to a relative placement.

       After considering the upheaval M.L. has experienced in his home life and

the toll it has taken on him, we decline to reverse the termination order.1 Prolonged

uncertainty about his future will likely worsen M.L.’s mental-health condition.

Robert’s addiction and criminal involvement with illicit drugs have left him

unavailable for his son.       Neither the best-interest framework in Iowa Code

section 232.116(2) (2019) nor the factors weighing against termination in

section 232.116(3) can change the narrative here. Because termination clears

M.L.’s legal path toward permanency, we affirm the order.2

       I.      Facts and Prior Proceedings

       M.L.’s first removal from his home occurred in June 2017. Robert and his

girlfriend were using controlled substances while caring for then four-year-old M.L.

Executing a criminal search warrant revealed methamphetamine, marijuana,




1
  Our review is de novo. In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). While not bound
by the juvenile court’s fact findings, we give them weight, particularly on issues of witness
credibility. Id.
2
  The order also terminated the parental rights of M.L.’s mother, Candice. She does not
appeal.
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prescription pills, and drug paraphernalia in the father’s Davenport home. The

State charged Robert with child endangerment and keeping a drug house. When

the DHS wanted to verify drug exposure, Robert shaved both his own head and

M.L.’s head to avoid having their hair tested. M.L.’s mother, Candice, who lived in

Fort Dodge, could not take over M.L.’s care because she too was using illegal

drugs and had warrants out for her arrest. The juvenile court adjudicated M.L. as

a child in need of assistance in August 2017.

        M.L.’s life has been unsettled since. He briefly went to foster care, then to

live with his parental aunt and uncle for about one year, and then back to foster

care.

        Meanwhile, Robert made some strides in his fitness to parent.             He

completed substance-abuse treatment, and entered Family Wellness Court. But

Robert relapsed and, by August 2018, faced new drug charges. The juvenile court

wrote: “In September of 2018 the Court had to abandon hopes Robert would regain

custody.    Reunification services were ordered to stop for him.”         The State

petitioned to terminate parental rights in September 2018. But the juvenile court

dismissed that petition in February 2019, hoping Candice could resume care of

M.L. The DHS returned M.L. to his mother’s custody in March 2019. But the return

was short-lived. After he suffered injuries twice while in her care, the DHS again

removed him from his home in May 2019. He moved to family foster care and then

to stay with respite-care foster parents.

        When the State filed its petition to terminate parental rights in June 2019,

M.L. had been out of his father’s care for two years. The juvenile court held a

hearing on the termination petition in September 2019.         Robert appeared by
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telephone from prison, where he had been since June 2019 when the criminal

court revoked his probation for using methamphetamine. Robert testified: “I made

a mistake. . . . I can’t change the past. I would still like the opportunity to be part

of my son’s life.” The father expected to be paroled from prison in July 2020.

       In its case for termination, the State offered the testimony of the DHS case

worker. She explained M.L. was currently in foster care, but the DHS planned to

transition him back to the home of his paternal aunt and uncle. The record also

included a letter from M.L.’s medical doctor discussing the child’s diagnoses with

oppositional defiant disorder and attention deficit hyperactivity disorder.       The

doctor expressed his “strong opinion” M.L. needed “as little disruption in his life as

possible.” The doctor believed change would “cause a rebound in symptoms” and

“would be extremely detrimental” to M.L.’s general well-being.

       The court granted the petition to terminate Robert’s parental rights under

Iowa Code section 232.116(1), subsections (d), (e), and (f). Robert now appeals.

       II.    Analysis

       Robert does not contest the State’s clear-and-convincing proof of the

statutory grounds for termination. See Iowa Code § 232.116(1). Instead, he

argues termination of his parental rights is not in M.L.’s best interests. See Iowa

Code § 232.116(2). Robert asserts he “has good visits and interactions with the

child when he is able.” Robert also contends section 232.116(3) “negates the need

for termination” because he has a strong bond with the child and “M.L. is being

transitioned to relative placement.” See id. § 232.116(3)(a), (c).

       On the best-interests challenge, the courts give “primary consideration to

the child’s safety,” to the best placement for furthering his long-term nurturing and
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growth, and to his physical, mental, and emotional condition and needs. See In re

P.L., 778 N.W.2d 33, 39 (Iowa 2010) (discussing section 232.116(2)). Here,

because of his history of addiction and involvement with illicit drugs, Robert could

not show he can provide M.L. with a safe home. The record reveals evidence of

M.L.’s aggressive behaviors and his progress in therapy while in foster care. The

anxiety of waiting for Robert to be released from prison and to become a fit parent

will not promote M.L.’s long-term growth and emotional stability. See id. (stressing

courts should not deprive a child of permanency by hoping his parent will someday

be able to provide a stable home).

       Finally, we turn to the permissive factors weighing against termination. See

In re A.S., 906 N.W.2d 467, 476–77 (Iowa 2018) (holding parent resisting

termination has burden to prove permissive factor under section 232.116(3)). To

that end, Robert argues he has a close bond with M.L.              See Iowa Code

§ 232.116(3)(c) (allowing court to reject termination if “[t]here is clear and

convincing evidence that the termination would be detrimental to the child at the

time due to the closeness of the parent-child relationship”). The case worker

agreed M.L. was “excited to see” Robert during their visits. But she added that

when Robert “just completely stopped showing up” M.L. did not “seem to be too

affected by it.” Under these facts, Robert did not establish this basis for rejecting

termination.

       On the relative placement factor, because the aunt and uncle did not have

legal custody of M.L., the juvenile court could not exercise that option to forgo

termination under section 232.116(3)(a). See In re A.M., 843 N.W.2d 100, 113

(Iowa 2014).
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       After a full review of the record, we find no basis to reverse the order

terminating Robert’s parental rights.

       AFFIRMED.
