                    IN THE COURT OF APPEALS OF IOWA

                                   No. 20-0219
                               Filed May 13, 2020


IN THE INTEREST OF R.R.,
Minor Child,

T.R., Father,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Appanoose County, William Owens,

Associate Juvenile Judge.



      A father appeals the termination of his parental rights to a child.

AFFIRMED.



      Kevin S. Maughan, Albia, for appellant father.

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

General, for appellee State.

      Debra A. George of Griffing & George Law Firm, PLC, Centerville, attorney

and guardian ad litem for minor child.



      Considered by Vaitheswaran, P.J., Greer, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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MAHAN, Senior Judge.

       A father appeals the termination of his parental rights to a child, born in

2018.1 He contends the State failed to prove the grounds for termination cited by

the juvenile court and termination was not in the child’s best interests. We affirm.

I.     Background Facts and Proceedings

       This family most recently came to the attention of the department of human

services in May 2017,2 due to concerns the parents were using methamphetamine.

The children in the home at that time were adjudicated in need of assistance and

removed from the parents’ care. The parental rights to these children have since

been terminated: the father’s parental rights to A.R., born in 2004, were terminated

in November 2018; the father’s parental rights to P.R., born in 2011, and T.R., born

in 2014, were terminated in May 2019; and the mother’s parental rights to S.B.

(who has a different father), born in 2016, were terminated in May 2019.

       In August 2018, the mother gave birth to R.R., who tested positive for

methamphetamine.        Testing of R.R. determined the mother had used

methamphetamine within 48 to 72 hours of delivering the child.            R.R. was

adjudicated in need of assistance and placed in foster care with the same family

as his half-brother, S.B., where he has remained since.

       The father was in prison at the time of R.R.’s birth. The father maintained

he did not know the mother was pregnant, even though he lived with her until his




1 The mother’s parental rights were also terminated. She does not appeal.
2 The parents have a history of methamphetamine use and the department’s
involvement with their children.
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arrest in July 2018, at which time she was eight months pregnant. 3 The father

declined visits until paternity testing confirmed him to be R.R.’s father. Thereafter,

he had a few visits with R.R. while he was in prison. When the father was released

from prison in March 2019, he was scheduled to have one two-hour supervised

visit each week, which he attended sporadically from March to July. Numerous

services were offered to the father, including substance-abuse evaluations;

medication management; family safety, risk, and permanency (FSRP) services;

safety plans; family team meetings; transportation assistance; individual therapy;

family treatment court; and a parent partner.

       Meanwhile, in June 2019, the State filed a petition to terminate the parental

rights of the parents. The termination hearing began on July 17, 2019. The father

was not present. The department caseworker testified, the father “has had since

March of 2015 to make the changes he needed to make, and [he did not] stop[]

using until [he was] incarcerated.” The caseworker stated the father “now is not

incarcerated and is not making [his child] a priority again.”         The caseworker

acknowledged that FSRP providers had recently observed the father having

“positive visits” with R.R. and “actively parent[ing] during visitation,” but the father

had only “spent a total of 12 hours and 25 minutes with” R.R.

       The caseworker noted the father had made improvements in other areas.

He was living with his girlfriend, although the home had not yet been evaluated for

visitation. He was employed, he had completed a substance-abuse evaluation and

substance-abuse treatment, and he had participated in random drug testing with


3 Caseworkers expressed doubt regarding the father’s claim that he did not know
the mother was pregnant.
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no positive test results. He had also participated, albeit not consistently, in mental-

health treatment. The caseworker explained that mental-health treatment was

necessary for the father to be able to provide a safe placement for R.R. because

the father, “himself, over the last however many years I have been working with

him—four years—has acknowledged that he has depression, that he has mental

health issues, that when he gets down and depressed and feels worthless, that

impacts his use.” The caseworker believed “if he doesn’t address the underlying

things that lead to his use, it is unlikely he will stay sober long term.”

         The caseworker further testified that it was necessary for the father “to

demonstrate that he can meet [R.R.]’s special needs.” R.R. has several significant

medical conditions, including neurological and muscular issues and a history of

seizures, which require care from a variety of medical providers. The caseworker

testified the father was able to “play . . . and have fun with [R.R.], but [he] cannot

parent him 24/7.”

         The court decided to continue the termination hearing to “afford[] [the

mother] an opportunity to continue to build on this success [she’s] had at this point.”

The court stated, “It also, . . . by default gives [the father] an opportunity to figure

out what the heck he is doing. . . . Perhaps rearranging his priorities to make [R.R.]

his first priority, or at least making room for him in his life.”

         The termination hearing continued on January 9, 2020.4 The mother was

not present; she had fled from a halfway-house facility and a warrant was pending

for her arrest. The father was present. He had been employed “since May or



4   The court also held review hearings in September and October.
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June,” had “stable housing” with his now-fiancé, and had remained sober. Since

September, the father had been having visits twice weekly at his home, which had

progressed to include one overnight visit each week. The father testified he was

prepared to have the child placed in his home. He testified maintaining sobriety

was an “easy decision” because “I know if I go back down that way, I’m losing

everything that I’ve built, worked so hard to get.” The father acknowledged that

R.R. was bonded to his foster parents and S.B., but he stated, “[B]eing his

biological dad, I feel like I should have a chance to have a relationship with my

son, to show that I can take care of my son. I’ve never had that chance.”

       The father had been tasked with scheduling the child’s physical therapy

appointments, which he did only a few times. The father was also tasked with

scheduling the child’s area education agency appointments, but since October 31,

the father had only scheduled one of the child’s twenty appointments. The foster

parents had scheduled and attended the child’s many appointments. The child’s

medical providers were concerned that “based on all of the medical needs that he

has and physical needs that he has, if [R.R.] isn’t [going to all his appointments

consistently], he’s not going to make progress” and “it will impact his walking, his

running.” The father testified he would be able to meet R.R.’s medical needs in

the future: “I would take the initiative, and I would set them appointments up based

on the information that I received and according to the timetable.”               He

acknowledged he had not made those arrangements for R.R. in the past. When

asked if those difficulties would continue if R.R. was placed in his care, the father
                                          6


stated, “[A]fter today, no.[5] Because all my issues with attending physical therapy

or any appointment, really, has been transportation. Now that I have my own

transportation, I can get to anywhere I want to go.” The father also testified he had

not been able to take off work for appointments, “There’s no working with the

employer. It’s work or don’t work.” But he believed he could plan the appointments

around his work schedule.

       By that time, R.R. had been removed from his parents’ care for “[a] little

over 16 months” and he had never been in the father’s care for longer than one

night. The caseworker noted “this is a difficult decision, because [R.R.] is building

a relationship with [the father], and [the father] has made a lot of really good

progress.” But the caseworker stated the father “still wasn’t having consistent visits

with [R.R.] until after the September [2019] hearing,” and the “only difference” she

“could find was that we moved the visits to [the father’s] home,” “[w]e brought [R.R.]

to him,” and the father “wasn’t being inconvenienced.”

       The caseworker testified if the case stayed “open,” the father would need

continuous monitoring to ensure that he followed up with R.R.’s medical needs,

which she opined was a “concern that’s well-documented based on what he’s

demonstrated.” The caseworker also believed it would be “very traumatic” for R.R.

to take him away from his foster parents and S.B. and the only home he had ever

known. Despite finding the father had “shown some progress,” the department

“continue[d] to recommend termination of parental rights.” The guardian ad litem

also recommended termination of parental rights.


5 The father testified that he had gotten a driver’s license the day before the
January termination hearing.
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       Following the termination hearing, the court entered its order terminating

the father’s parental rights pursuant to Iowa Code section 232.116(1)(g) and (h)

(2019). The father appeals.

II.    Standard of Review

       Appellate review of termination-of-parental-rights proceedings is de novo.

In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our primary consideration is the

best interests of the child, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the

defining elements of which are the child’s safety and need for a permanent

home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).

III.   Discussion

       The father challenges the sufficiency of the evidence supporting the

grounds for termination cited by the juvenile court. We may affirm if we find clear

and convincing evidence to support any of the statutory provisions. See In re A.B.,

815 N.W.2d 764, 774 (Iowa 2012).          We will focus on Iowa Code section

232.116(1)(h), which requires proof of several elements including proof R.R. could

not be placed in the father’s custody.

       The father claims, “There have been absolutely no safety concerns or

parent skill concerns expressed about [his] visitation with and parenting of the

child.” He contends the “real issue” is his “ability to take care of R.R.’s special

needs.”   According to the father, “Most of the medical and physical therapy

appointments were made by others without consulting [him] as to his work

schedule and availability.” The father also points to his “lack of transportation” as

a difficulty for him, “which has been resolved.” In sum, the father claims the child
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can be returned to his care and “[t]he concerns expressed can be addressed with

R.R. in [his] home without removal.”

       At the time of the termination hearing, the child had been removed from the

parents’ care since birth. The father was in prison until March 2019 and did not

begin any sort of meaningful visitation with the child until September.            We

commend the father’s progress to maintain employment, housing, and sobriety

since his release from prison, but we concur in the department’s opinion that the

father’s actions during this proceeding evince his motivations were more about

staying out of jail than taking on a parenting role for the child. The father was

aware the child’s medical needs were a significant concern but, when given the

time and opportunity to show he could perform the necessary tasks, the father

failed to do so consistently and without direction. As the juvenile court found:

       [R.R.] was removed from parents’ care and custody on August 30,
       2018, and has never resided in the home of either of his parents.
       [R.R.] has numerous special needs that require more attention and
       diligence than either of these parents are capable of addressing on
       a consistent basis. [The parents] were given an opportunity to
       schedule and attend some of those appointments, but neither was
       able to consistently fulfill the department’s expectations. . . . [The
       father] has made some progress, but his history and the
       aforementioned termination proceedings involving his other children
       do not bode well for his long-term improvement and recovery. [The
       father’s] progress is simply too little too late. Based on the record
       there is no possibility [R.R.] could be returned to the custody of either
       parent today and be protected from the type of harm that gave rise
       to [his] removal and subsequent adjudication.

       We concur in the court’s finding. Although this is a close case, we find there

is sufficient proof the father remains unable to provide for the child’s needs on a

consistent, long-term basis. See In re Z.H., 740 N.W.2d 648, 651–52 (Iowa Ct.

App. 2007) (“Parenting cannot be turned off and on like a spigot. It must be
                                         9

constant, responsible, and reliable.” (quoting In re L.L., 459 N.W.2d 489, 495 (Iowa

1990))). Iowa Code section 232.116(1)(h) was satisfied.

      We turn to the child’s best interests. The father points us to the supreme

court’s acknowledgment that “[t]he best-interest-of-the-child framework has

backward-looking and forward-looking components.” In re B.H.A., 938 N.W.2d

227, 232 (Iowa 2020). We too observe that

      [c]entral to a determination of this nature are the best interests of the
      child. In this connection, we look to the child’s long-range as well as
      immediate interests. Hence we necessarily consider what the future
      likely holds for the child if returned to his or her parents. Insight for
      this determination can be gained from evidence of the parent’s past
      performance, for that performance may be indicative of the quality of
      the future care that parent is capable of providing.

In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981) (citations omitted); accord

B.H.A., 938 N.W.2d at 232. On this question, the juvenile court found:

      [The parents] both have a long history of substance use and abuse
      which has led them to engage in criminal conduct resulting in stays
      in jail, residential facilities, and prison. That conduct has resulted in
      prior termination proceedings involving multiple children. . . . [The
      father] has made progress since his release from prison, but his
      history of focusing on his own issues (job, health, criminal conduct)
      resurfaced when he was asked to take a more active role in tending
      to [R.R.]’s special needs. . . . The parents’ history of substance use
      and instability must also be examined in light of [R.R.]’s very special
      needs. [R.R.]’s medical, educational and developmental needs will
      require constant monitoring and attention. [The parents] were given
      an opportunity to take more responsibility for those issues, but
      neither showed the capacity to address those issues in a way that
      gives the court confidence that they could do so into the future.

      Although “there exists a parental interest in the integrity of the family unit,”

“this interest is not absolute, but rather may be forfeited by certain parental

conduct.”   Dameron, 306 N.W.2d at 745.         R.R. is in need of and deserves

permanency. We conclude it is in R.R.’s best interest for termination of parental
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rights to occur. No permissive statutory exception should be applied to preclude

termination. We affirm the decision of the juvenile court to terminate the father’s

parental rights.

       AFFIRMED.
