                     IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1469
                            Filed December 21, 2016


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

J.R., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Cerro Gordo County, Peter B.

Newell, District Associate Judge.



       The father appeals from the juvenile court’s order terminating his parental

rights. AFFIRMED.



       Michael J. Moeller of Sorensen & Moeller Law Office, Clear Lake, for

appellant father.

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

Assistant Attorney General, for appellee State.

       Crystal L. Ely of North Iowa Youth Law Center, Mason City, guardian ad

litem for minor child.



       Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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POTTERFIELD, Judge.

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

2011.1 The juvenile court terminated his parental rights pursuant to Iowa Code

section 232.116(1)(e) (2015). He argues his parental rights should not have

been terminated because he did not have an attorney during the underlying child-

in-need-of-assistance (CINA) proceeding and the Iowa Department of Human

Services (DHS) failed to make reasonable efforts to reunify him with the child.

He further contends his parental rights should not have been terminated as the

child was placed with a relative and the trial court should have granted his

request for a six-month extension for reunification. We affirm.

    I. Background Facts and Proceedings.

          The family first came to the attention of DHS in late 2015 when the child’s

mother and her fiancé engaged in domestic violence while the child was present

in the mother’s home.          The father was served with notice of the CINA

proceeding; however, he did not participate. The child was adjudicated a CINA

on December 3, 2015, and a dispositional hearing was held on January 4, 2016.

The father did not attend either hearing. The juvenile court ordered the child’s

custody to remain with the mother and ordered DHS to initiate services for the

family.

          DHS sent monthly letters over several months to the father; however, the

father never responded to them. At the termination hearing, DHS and Family

Safety, Risk, and Permanency (FSRP) workers testified they attempted to


1
 The mother’s parental rights have not been terminated, and she is not a party to this
appeal.
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contact the father by letter, text messaging, and telephone calls, usually to no

avail. The father contends he did attempt to contact DHS and FSRP workers a

few times.

       At the May 12 dispositional review hearing, the father asked the court for a

continuance so he could apply for court-appointed counsel. The court granted

the continuance and reset the hearing for May 26. The father neither applied for

counsel nor appeared at the hearing.

       The State filed the petition for termination of the father’s parental rights on

July 17, 2016, and the father applied for court-appointed counsel on July 19. The

court appointed counsel on July 21, and the termination hearing was held on

August 18.

       At the termination hearing, the father testified he resided with the child and

the mother during the first year of the child’s life. After that time, the father then

had regularly scheduled visitation, which continued until a no-contact order was

put in place due to various alleged domestic violence incidents between the

father and the mother.

       The father acknowledged he had not seen the child since December 2015.

He admitted he had no contact with the child since then but maintained he had a

“shed-full” of presents for the child. He testified he does not send the child cards

because the child cannot read them. He also admitted he does not pay child

support despite a child-support order, nor does he provide any other financial

support for the child.

       The father also acknowledged he had not completed any services through

DHS,    including   the   recommended         mental-health   and   substance-abuse
                                               4


evaluations. However, he testified that if the court should grant him a six-month

extension, he would do whatever DHS or the court asked of him.

          The father appeared at the termination hearing and testified. However, he

was at that time being held in the county jail with two pending criminal charges

and had been there for approximately thirty days. It is unclear what, if any,

additional jail time he would face.

          On August 22, 2016, the court entered an order terminating the father’s

parental rights.       The petition sought termination on three different statutory

grounds;2 however, the juvenile court terminated the father’s parental rights

under section 232.116(1)(e), which allows the court to terminate when a child has

been adjudicated in need of assistance, the child has been removed from the

parent’s physical custody for at least six consecutive months, and the parent has

not maintained significant and meaningful contact with the child during that

period and has made no reasonable efforts to resume care of the child despite

being given the opportunity to do so.

          The father appeals.

II. Standard of Review.

          We review the juvenile court’s decision to terminate parental rights de

novo. See In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). In doing so, we apply

the three-step analysis:

          The first step is to determine whether any ground for termination
          under section 232.116(1) has been established. If we find that a
          ground for termination has been established, then we determine
          whether the best-interest framework as laid out in section
          232.116(2) supports the termination of parental rights. Finally, if we

2
    The petition for termination cited to Iowa Code section 232.116(1)(a), (e), and (f).
                                          5


         do find the statutory best-interest framework supports the
         termination of parental rights, we consider whether any exceptions
         in section 232.116(3) apply to preclude termination of parental
         rights.

Id. at 219–20 (citations omitted). The district court’s factual findings are

not binding on us, but we afford them weight, particularly with regard to

witness credibility. See In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App.

2010).

III. Discussion.

         A. Lack of Representation

         The father first argues the order terminating his rights should be reversed

because he was not represented by an attorney during the underlying CINA

proceeding.

         The Iowa Code provides statutory bases for parents’ rights to counsel at

different proceedings under the juvenile sections of the code. See Iowa Code

§ 232.89(1) (providing a right to counsel in CINA proceedings); Iowa Code

§ 232.113(1) (providing a right to counsel in termination proceedings).

         At the August termination hearing, the father’s appointed counsel went on

the record to say that he had not represented the father in the underlying CINA

proceedings and the father had not had any representation; however, that was

the extent of it. The May 12 hearing was continued so that the father could

obtain counsel; however, he failed to do so and missed the reset hearing on May

26. Because the father was afforded the opportunity to obtain counsel and did

not, we conclude his claim has no merit. We decline to discuss this issue further.
                                          6


       B. Termination under Section 232.116(1)(e)

       The father next maintains the trial court erred in terminating his rights

because the State failed to prove the grounds for termination by clear and

convincing evidence. See, e.g., Iowa Code § 232.116(1)(e) (requiring clear and

convincing evidence). Specifically, he argues the State failed to prove its case

because the father maintains DHS did not give him an opportunity to follow

through with significant and meaningful contact with the child nor to resume

caring for the child. He contends the juvenile court should have given him an

additional six months toward reunification.

       The court terminated the father’s rights under Iowa Code section

232.116(1)(e), and his argument seems to center only on the “significant and

meaningful contact” and “reasonable efforts” portions.

       Under section 232.116(1)(e)(3),

       “[S]ignificant and meaningful contact” includes but is not limited to
       the affirmative assumption by the parents of the duties
       encompassed by the role of being a parent. This affirmative duty,
       in addition to financial obligations, requires continued interest in the
       child, a genuine effort to complete the responsibilities prescribed in
       the case permanency plan, a genuine effort to maintain
       communication with the child, and requires that the parents
       establish and maintain a place of importance in the child’s life.

In this case, the father admitted he had not seen the child in approximately nine

months, had made no effort to contact the child, did not financially support the

child, and had not attempted to initiate visitation with the child during that time.

The father’s lack of significant and meaningful contact with his child is due to his

own inaction.
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       Furthermore, the testimony from both DHS and FSRP workers indicates

the father was not only personally served with notice of the CINA and termination

proceedings, monthly letters were sent to him. The testimony also indicated the

father was called on the telephone and sent text messages. DHS and FSRP

workers could not initiate services with the father because the father remained

unresponsive to their communication requests. Additionally, the father refused to

complete the mental-health and substance-abuse evaluations recommended to

him.   Under the circumstances, DHS attempted to provide the father with

resources but the father refused; DHS’s efforts were thwarted by the father’s lack

of cooperation.

       While the father asserts he should be given an additional six months to

work toward reunification, his past behavior does not indicate that the situation

will be different in the near future. Under Iowa Code section 232.104(2)(b) , the

court may authorize a six-month extension of time if it determines “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.” At the time of the termination hearing, the father

was incarcerated, facing two criminal charges. Although the father testified he

may be released from jail with “credit for time served,” there is no guarantee.

Additionally, it is unclear whether the father will actually complete any services

provided to him by DHS. A child should not be asked to continuously wait for a

stable biological parent, particularly when the child is of a tender age. See In re

D.W., 791 N.W.2d 703, 707 (Iowa 2010).

       The father next asserts that his parental rights should not have been

terminated because the child was placed with a relative. The father argues that
                                         8


placement of the child with the child’s mother weighed against termination, as

there “is no need and there is certainly no harm to the child if the parental rights

of the father were not terminated.”

       Iowa Code section 232.116(3) provides that “[t]he court need not

terminate the relationship between the parent and child” under certain

circumstances. “A finding under subsection 3 allows the court not to terminate.”

In re A.M., 843 N.W.2d 100, 113 (Iowa 2014) (citing In re P.L., 778 N.W.2d 33,

39 (Iowa 2010)). “‘The factors weighing against termination in section 232.116(3)

are permissive, not mandatory,’ and the court may use its discretion, ‘based on

the unique circumstances of each case and the best interests of the child,

whether to apply the factors in this section to save the parent-child relationship.’”

Id. (quoting In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App. 2011)).

       The juvenile court found none of the permissive factors in subsection 3

should be applied, and we agree. While subsection 3 allows the juvenile court

not to terminate when “a relative has legal custody of the child,” which is the case

here because the child lives with the mother, we are not inclined to find

preserving the father and child’s relationship is in the child’s best interests. We

find termination is in the child’s best interests and no permissive factor weighs

against termination.

       Based on the foregoing, we affirm the juvenile court’s order terminating

the father’s parental rights.

       AFFIRMED.
