                       IN THE COURT OF APPEALS OF IOWA

                                       No. 17-0264
                                    Filed May 3, 2017


IN THE INTEREST OF A.H. and A.H.,
Minor Children,

A.H.-W., Father,
      Appellant.
________________________________________________________________


          Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,

Judge.



          A father appeals from the order terminating his parental rights.

AFFIRMED.



          Matthew D. Hatch of Hatch Law Firm, P.C., Bettendorf, for appellant

father.

          Thomas J. Miller, Attorney General, and Gretchen W. Kraemer, Assistant

Attorney General, for appellee State.

          Steven W. Stickle of Stickle Law Firm, P.L.C., Davenport, for minor

children.



          Considered by Danilson, C.J., Potterfield, J., and Mahan, S.J.* Tabor, J.,

takes no part.

          *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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MAHAN, Senior Judge.

       A father appeals from the order terminating his parental rights to his two

children. We affirm because a ground for termination exists, termination is in the

best interests of the children, and no exception precludes termination.

       We review termination proceedings de novo. See In re M.W., 876 N.W.2d

212, 219 (Iowa 2016). Although we are not bound by the fact-findings of the

juvenile court, we do give them weight, particularly when evaluating witness

credibility. See id.

       With respect to the older child, born in April 2010, the court terminated the

father’s rights pursuant to Iowa Code section 232.116(1)(d) and (f) (2016), and

with respect to the younger child, born in June 2015, pursuant to section

232.116(1)(d) and (h).    The father asserts there is not clear and convincing

evidence to support termination under subparagraphs “f” and “h,” arguing there is

no finding the children have been “removed” from his custody as that term was

interpreted in In re C.F.-H., 889 N.W.2d 201, 203-08 (Iowa 2016). We need not

address this argument because there is clear and convincing evidence

supporting termination under section 232.116(1)(d). See In re D.W., 791 N.W.2d

703, 707 (Iowa 2010) (“[W]e may affirm the juvenile court’s termination order on

any ground that we find supported by clear and convincing evidence.”).

       Section 232.116(1)(d) allows the juvenile court to terminate parental rights

if both of the following have occurred:

              (1) The court has previously adjudicated the child to be a
       child in need of assistance [CINA] after finding the child to have
       been physically or sexually abused or neglected as the result of the
       acts or omissions of one or both parents, or the court has
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       previously adjudicated a child who is a member of the same family
       to be a child in need of assistance after such a finding.
              (2) Subsequent to the [CINA] adjudication, the parents were
       offered or received services to correct the circumstances which led
       to the adjudication, and the circumstance continues to exist despite
       the offer or receipt of services.

       Here, the children came to the attention of the department of human

services (DHS) in June 2015, and a child abuse investigation was founded as to

denial of critical care due to the father’s use and sale of marijuana when the older

child was present. When the youngest child was born in June 2015, the father

was ousted from the hospital for threatening the maternal grandmother. During

the child abuse investigation, it was learned the “father had perpetrated severe

domestic abuse against the mother, and physically assaulted [the older child]

during physically disciplining the child.” The father reported “whooping” the older

child as a disciplinary practice. In an August 21, 2015 service plan, the Family

Safety, Risk and Permanency (FSRP) worker wrote:

       There is a presence of physical and emotional abuse of the child.
       The oldest child has also witnessed domestic violence between the
       father and mother. The child reported that her dad would give her
       “whoopings” for wetting the bed and being bad. The child has been
       affected emotionally from witnessing domestic violence and would
       benefit from consistent play therapy.

In a forensic interview, the older child reported her father hitting her hard with his

hand and leaving red marks.        The guardian ad litem reported that on one

occasion the child had been pushed out of the way while the father was

assaulting the mother and the child’s elbow was injured.

       On October 8, 2015, the children were adjudicated CINA under section

232.2(6)(b), which defines a child in need of assistance as one “[w]hose parent,

guardian, other custodian, or other member of the household in which the child
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resides has physically abused or neglected the child, or is imminently likely to

abuse or neglect the child.” The court wrote:

      Specifically, the Court FINDS that based on the exhibits provided in
      court, there is clear and convincing evidence that the oldest child
      has witnessed and been hurt during domestic disturbances where
      violence was used by the father against the mother. There is a
      long history of the father being violent, and he has had several
      arrests in incidents where police were called because his behavior
      was so out of control. There are reports that the father has been
      selling marijuana out of his house when the children are there. It is
      clear from the reports that there are issues regarding the mental
      capacity of each parent to properly parent. The mother has
      remained in what is an abusive relationship, both emotionally and
      verbally, for almost eight years, much of the abuse being
      administered against her in front of the children. The father’s
      history demonstrates violent outbursts against the mother and
      complete disrespect for authority. There was a reported incident
      where the father went to the mother’s employment, grabbed her by
      the arm, drug her down to a hallway, threatened her, and the next
      day she appeared at work wearing heavy makeup to hide a bruise.
      This is just an example of the type of behavior that’s been reported
      to be administered by [the father] against [the mother]. There is
      currently an order of protection in existence, ordering [the father] to
      refrain from any contact with [the mother]. There is a police report
      wherein [father] got out of a car and assaulted a man while the
      mother and the oldest child sat in the car.

      The father’s appeal brief acknowledges the adjudicatory order includes a

finding that the “oldest child has witnessed and been hurt during domestic

disturbances where violence was used by the father against the mother.” He

argues, however, that this is not sufficient basis for a termination of parental

rights under section 232.116(1)(d). We disagree.

      As noted above, to terminate under subparagraph “d,” the court must have

“previously adjudicated the child to be a [CINA] after finding the child to have

been physically or sexually abused or neglected as the result of the acts or

omissions of one or both parents.”
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       But “physical abuse or neglect” and “abuse or neglect” are terms of
       art in this context. Within chapter 232, “physical abuse or neglect”
       and “abuse or neglect” mean “any nonaccidental physical injury
       suffered by a child as the result of the acts or omissions of the
       child’s parent, guardian, or custodian or other person legally
       responsible for the child.” [Iowa Code] § 232.2(42).

In re J.S., 846 N.W.2d 36, 41 (Iowa 2014) (concluding an adjudication under

section 232.2(6)(b) was not adequately supported). In In re T.S., 868 N.W.2d

425, 435-36 (Iowa Ct. App. 2015), this court found insufficient evidence to

support a termination of parental rights under section 232.116(1)(d) because the

CINA adjudication under section 232.2(6)(b) was proper under the “imminently

likely” clause and no finding or record evidence of nonaccidental physical injury

existed.

       In contrast, this case involves an adjudication under subsection

232.2(6)(b) with evidence of nonaccidental physical injury to the older child as a

result of the father’s actions. In addition to the court’s finding of harm to the child,

in a March 2016 correspondence, the older child’s therapist referred to the

father’s “severe punishment” of his child, the child’s fear of him, and his violent

behaviors directed at the child and her mother. The older child reported being hit

by her father hard, leaving marks, and the child expressed fear of her father.

       The record also provides ample evidence that the father was offered

services but the threat of his violence remains more than a year after the juvenile

proceedings began. The father was arrested for his threatening behavior at a

March 2016 review hearing.        He was dismissed from a batterer’s education

program (BEP) for threatening behavior toward another person during a session.

A January 11, 2017 report to the court noted the father’s face-to-face parenting
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sessions “had been suspended due to [the father’s] threats toward the provider

and others.”

      As found by the juvenile court:

             The father has been offered and received many services
      including visitation, BEP, mental health evaluations, parenting
      instruction, transportation services from his therapist, and individual
      services on a pro bono basis. Despite the receipt of these services
      the children are unable to be returned to his care or home without
      exposing them to adjudicatory harm. The original permanency goal
      was for the children to be reunified with both parents. Since that
      time the goal has now changed due to reunification with the mother
      ....
             The father is still unable to handle the responsibility and
      needs of []his children. He still demonstrates even in court at this
      hearing that he does not understand the emotional trauma that he
      has inflicted on his oldest child, still does not understand that
      parenting by “fear” is unacceptable, and still is angered when the
      child expresses joy and pride with gifts from other family members.
      He still is clearly angry and upset with the children’s mother
      evidenced by his statements and demeanor in court.
             The [oldest] child has flourished since the contact with her
      father has been eliminated or restricted. Her emotional and
      psycho-social growth has been profound. Her bond with her father
      was a “trauma bond” as admitted by the father’s own therapist. The
      youngest child has not developed a strong bond with the father.
      The father blames the Department of Human Services and the
      system. He, however, has yet to accept that the bond was
      disrupted due to his own extreme violent and obstructive behaviors
      that were harmful to the children.

      We agree with the juvenile court’s conclusion that termination is warranted

under section 232.116(1)(d) because

      [t]he oldest child has been adjudicated to have been physically
      abused or neglected by the acts of her father’s violence toward the
      mother resulting in physical and emotional harm to her. The
      youngest child is a member of the same family as the older child
      and subsequent to the father receiving services the circumstances
      still exist.

      The father argues that even if grounds for termination of his parental rights

exist, it is not in the children’s best interests to do so because they are bonded
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with him and are in the care of their mother.                While the statute provides

discretionary grounds to avoid termination of parental rights, see Iowa Code

§ 232.116(3); M.W., 876 N.W.2d at 225, this record does not support the father’s

claims. The bond between father and the oldest child, if any, was one of trauma,

and little bond has occurred between the father and the youngest child. The

department recommended termination of the father’s parental rights, as did the

guardian ad litem.1        Termination of the father’s parental rights will allow the

children to experience physical and emotional safety. We affirm.

          AFFIRMED.




1
    The guardian ad litem’s January 2017 report to the court stated, in part:
                  While I am ordinarily reluctant to recommend termination of
         parental rights in a case where the other parent is retaining custody of the
         child(ren), I believe we need to be especially cognizant of the emotional
         trauma that [the father] has inflicted, particularly upon [the oldest child].
         [She] has been clear to multiple parties that she does not want to see her
         father again. I can only conclude that [she] has experienced a very
         significant level of trauma and anxiety that she would be so firm and
         unequivocal with multiple adults in her life over multiple months. I believe
         it is in [the oldest child’s] best interest to know that she will not ever be
         required to visit her father again. I believe we need to prioritize [her]
         emotional safety over [the father’s] parental rights.
