                    IN THE COURT OF APPEALS OF IOWA

                                     No. 17-1843
                               Filed January 24, 2018


IN THE INTEREST OF K.G. and L.G.,
Minor Children,

K.G., Father,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Stephen A. Owen,

District Associate Judge.



      A father appeals from the order terminating his parental rights. AFFIRMED.



      Larry J. Pettigrew of Pettigrew Law Firm, P.C., Ankeny, for appellant father.

      Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney

General, for appellee State.

      Daniela Matasovic of Matasovic Law Firm, Ames, guardian ad litem for

minor children.



      Considered by Vogel, P.J., and Tabor and Bower, JJ.
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VOGEL, Presiding Judge.

          A father appeals from the order terminating his parental rights. 1 He claims

the State did not present sufficient evidence to show he did not maintain a place

of importance in the children’s lives and termination is not in the children’s best

interests. We find there was sufficient evidence to terminate his parental rights,

termination is in the children’s best interests, and there are no impediments to

termination. Accordingly, we affirm.

          I.     Background Facts and Proceedings

          L.G., born 2009, and K.G., born 2010, came to the attention of the Iowa

Department of Human Services (DHS) in October 2016 after receiving reports that

the parents were not tending to the children’s basic needs, evidenced by such

behavior as using methamphetamine in the presence of the children.

          Both the mother and father had issues with substance abuse, domestic

violence, and homelessness. Neither parent had stable housing as they were in

jail during most of the pendency of the child-in-need-of-assistance (CINA) case

and termination proceedings. On October 14, 2016, following the mother’s arrest

and upon learning the DHS was aware of the children’s dire situation, the father

voluntarily placed the children with his sister in Cedar Rapids. The father, who

was      on    probation,   was    arrested    on   October     18   after   police   found

methamphetamine in his golf bag and drug paraphernalia in his truck. The father

subsequently stated his intent on having the children in his care upon his release,

implying his sister was only a temporary placement for the children.



1
    The district court terminated the mother’s rights, and she does not appeal.
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       On November 29, 2016, the children were adjudicated in need of assistance

pursuant to Iowa Code section 232.2(6)(c)(2) and (n) (2016).             Following a

dispositional hearing, the court confirmed the placement of the children with the

father’s sister and brother-in-law. When the father transitioned to a half-way

house, he began to make progress in addressing his issues. However, the father

did not follow through with the case permanency plan and was found passed out

in his car under the influence of methamphetamine and alcohol in early 2017.

According to the August 23, 2017 DHS report, the father was incarcerated on April

24, 2017, “for charges including possession of a firearm as a felon,” with a tentative

discharge date of December 18, 2020. Following a permanency review hearing

on September 5, 2017, the juvenile court held:

       [T]he children have found a safe, stable, and secure placement with
       their aunt and uncle who are willing to provide permanency for them
       by way of adoption. It would be in the children’s best interest to
       modify the permanency order to provide for termination of the
       biological parents’ parental rights.

       The State filed a petition to terminate the father’s parental rights. Following

an October 16 hearing on the matter, where the father—still incarcerated—was

represented but did not participate, the court entered an order, terminating the

father’s rights under section 232.116(1)(e) (2017). The father appeals.

       II.    Standard of Review

       The scope of review is de novo in termination cases. In re D.W., 791

N.W.2d 703, 706 (Iowa 2010).        Clear and convincing evidence is needed to

establish the grounds for termination. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).

We give weight to the juvenile court’s findings of fact, but we are not bound by

them. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
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       III.   Sufficiency of the Evidence

       The father asserts the evidence is not sufficient to support termination of his

parental rights because the State failed to prove he “did not maintain a place of

importance in the children’s lives.” Section 232.116(1)(e) provides the juvenile

court may terminate parental rights as to a child if:

               (1) The child has been adjudicated a child in need of
       assistance pursuant to section 232.96.
               (2) The child has been removed from the physical custody of
       the child’s parents for a period of at least six consecutive months.
               (3) There is clear and convincing evidence that the parents
       have not maintained significant and meaningful contact with the child
       during the previous six consecutive months and have made no
       reasonable efforts to resume care of the child despite being given
       the opportunity to do so. For the purposes of this subparagraph,
       “significant 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.

(Emphasis added.)

       Since there is no dispute the children were adjudicated CINA and had been

removed from the father’s care for at least six consecutive months, the father only

contests the third prong under paragraph (e).

       The father claims he has maintained significant and meaningful contact with

the children despite his incarceration. He claims he received no contact from the

DHS after he was incarcerated in April 2017 and had no visitation with the children

while incarcerated. The father maintains that this lack of communication with the

DHS about visits while he was incarcerated should not be used against him.
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         However, the father “cannot use his incarceration as a justification for his

lack of relationship with the child.” See In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993).

“This is especially true when the incarceration results from a lifestyle that is chosen

in preference to, and at the expense of, a relationship with a child.” Id. The father’s

inability to maintain contact with his children is due to his own lifestyle choices that

have resulted in his incarceration, principally his drug use. This kind of inability to

maintain meaningful contact is no legal excuse for failing to do so. By failing to

reach out to the DHS to set up visitation or other contact, the father did not continue

to take an interest in the children or maintain a place of importance in the children’s

lives.

         Moreover, the father’s claim that he should have been provided with

additional services and visitation while incarcerated is not preserved for our review.

See C.B., 611 N.W.2d at 493–94; see also In re C.H., 652 N.W.2d 144, 148 (Iowa

2002) (stating if a parent has a complaint regarding services, the parent must make

such challenge at the removal, when the case permanency plan is entered, or at

later review hearings). The father did not request additional services or make a

complaint about the services offered, including visitation, at any stage of these

proceedings.

         Accordingly, we find the juvenile court properly terminated the father’s rights

under section 232.116(1)(e).

         IV.    Best Interests

         The father next claims termination of his parental rights is not in his

children’s best interests. He claims termination is the most restrictive outcome and

better options were available, such as granting him an additional six months to
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work towards reunification or allowing his sister and brother-in-law, where the

children were placed, to serve as guardians of the children until his release.

Section 232.116(2) requires us to give primary consideration to the children’s

safety, to the best placement for furthering the long-term nurturing and growth of

the children, and to the physical, mental, and emotional condition and needs of the

children. In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).

       The father voluntarily placed the children with his sister due to concerns

about both parents’ substance abuse issues and inability to care for the children.

Since the November 29, 2016 adjudication, the children have remained with the

father’s sister and brother-in-law.    The father has provided no evidence an

additional six months would change his circumstances such that he would be in a

position to care for the children. The caseworker testified that even if the father

would be released soon from prison he would still need to have stable and safe

housing; mental health and substance abuse evaluations; and follow through with

recommendations, drug screens, supervised visits, and family therapy before he

could be considered an appropriate placement. Thus, a six-month extension to

work towards reunification is not appropriate. See Iowa Code § 232.104(2)(b); In

re J.B.L., 844 N.W.2d 703, 706 (Iowa Ct. App. 2014) (denying a six-month

extension because clear and convincing evidence showed that parent would be

unable to safely parent the child within six months of the termination hearing).

       Furthermore, the children deserve permanency and stability.                 A

guardianship is not a legally-preferable alternative to termination followed by

adoption. See In re L.M.F., 490 N.W.2d 66, 67–68 (Iowa Ct. App. 1992). The

juvenile court found termination would be in the children’s best interests, holding:
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         The children’s safety is best ensured by termination of parental rights
         and continued placement of the children with paternal relatives, [the
         sister and brother-in-law], as the termination and placement will free
         the children from continued neglect, exposure to drug abuse and
         domestic violence as well as ongoing criminal activity by their
         biological parents.

         Accordingly, we find the juvenile court properly determined termination was

in the children’s best interests.

         V.     Impediments to Termination

         The father asserts he maintained a strong bond with the children that should

preclude termination. The father claims his act of voluntarily placing the children

with their aunt and uncle shows his love for the children and the strength of his

bond with them. See Iowa Code § 232.116(3)(c). The “exceptions” to termination

are permissive and not mandatory. See In re A.M., 843 N.W.2d 100, 113 (Iowa

2014). “The court has 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.” In re D.S., 806 N.W.2d 458, 474 (Iowa Ct. App.

2011).

         Based on the circumstances, we conclude the parent-child bond should not

preclude termination of the father’s parental rights. The caseworker testified the

children, after years of turmoil, now have a routine and stability and are properly

clothed, fed, and enrolled in school. Accordingly, whatever bond the father claims

to have with the children has not impaired their ability to thrive with their aunt and

uncle and enjoy their childhood. We affirm the decision of the district court to

terminate the father’s parental rights.
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       VI.    Conclusion

       Because the State proved by clear and convincing evidence the father has

not maintained significant and meaningful contact with the children during the

previous six months and has made no reasonable efforts to resume care of the

children despite being given the opportunity to do so, termination is in the best

interests of the children, and there is no significant bond between the father and

the children that would preclude termination, we affirm the district court’s

termination of the father’s parental rights.

       AFFIRMED.
