                    IN THE COURT OF APPEALS OF IOWA

                                   No. 20-0036
                                Filed April 1, 2020


IN THE INTEREST OF I.J. and M.J.,
Minor Children,

C.J., Father,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clinton County, Mark Fowler, Judge.



      A father appeals the termination of his parental rights. AFFIRMED.



      J. David Zimmerman, Clinton, for appellant father.

      Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

      Brian P. Donnelly of Mayer, Lonergan & Rolfes, Clinton, attorney and

guardian ad litem for minor children.



      Considered by Greer, P.J., Ahlers, J., and Gamble, S.J.*

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

(2020).
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GAMBLE, Senior Judge.

       A father appeals from the termination of his parental rights to his children,

I.J. and M.J.1   On appeal, he challenges the statutory grounds authorizing

termination and argues termination is not in the children’s best interests due to the

strength of his bond with the children. We affirm.

I. Scope and Standard of Review

       We review termination proceedings de novo. In re P.L., 778 N.W.2d 33, 40

(Iowa 2010). “We give weight to the factual determinations of the juvenile court

but we are not bound by them. Grounds for termination must be proven by clear

and convincing evidence.      Our primary concern is the best interests of the

child[ren].” In re J.E., 723 N.W.2d 793, 798 (Iowa 2006) (citations omitted).

       We use a three-step process to review the termination of a parent’s rights.

In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). First, we determine whether a

ground for termination under section 232.116(1) has been established. See id. at

472–73. If a ground for termination has been established, then we consider

“whether the best-interest framework as laid out in section 232.116(2) supports the

termination of parental rights.” Id. at 473 (citation omitted). Then we consider

“whether any exceptions in section 232.116(3) apply to preclude termination of

parental rights.” Id. (quoting In re M.W., 876 N.W.2d 212, 220 (Iowa 2016)).




1The juvenile court also terminated the mother’s parental rights. She does not
appeal.
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II. Discussion

       A. Statutory Grounds

       The father challenges the statutory grounds authorizing termination. The

juvenile court terminated the father’s parental rights pursuant to Iowa Code section

232.116(1)(f) and (h) (2019). The juvenile court applied paragraph (f) to I.J. and

paragraph (h) to M.J. Paragraph (h) applies to children ages three and younger

while paragraph (f) applies to children ages four and older.

       At the time of the termination hearing, I.J. was three years old. But I.J.

turned four during the time in between the termination hearing and issuance of the

termination order. Because the State had to establish the statutory grounds for

termination at the termination hearing,2 when I.J. was still three years old, the

juvenile court should have considered termination of the father’s rights with respect

to I.J. under paragraph (h) instead of paragraph (f).

       But the father does not take issue with this problem.         And the State

petitioned for termination of the father’s rights with respect to I.J. under both

paragraphs (h) and (f). Because we may affirm on any grounds alleged in the

termination petition, we will consider grounds for termination under paragraph (h)

for both children. See M.W., 876 N.W.2d, at 221–22.

       Iowa Code section 232.116(1)(h) authorizes termination of a parent’s

parental rights when:

              (1) The child is three years of age or younger.
              (2) The child has been adjudicated a child in need of
       assistance pursuant to section 232.96.

2 Cf. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (providing that the juvenile court
considers whether a child can be returned to the parent at the time of the
termination hearing not at the time of the termination order).
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               (3) The child has been removed from the physical custody of
       the child’s parents for at least six months of the last twelve months,
       or for the last six consecutive months and any trial period at home
       has been less than thirty days.
               (4) There is clear and convincing evidence that the child
       cannot be returned to the custody of the child’s parents as provided
       in section 232.102 at the present time.

The father only challenges the last element, whether the children could be returned

to his care. We find the children could not be returned to his care.

       This family came to the attention of the Iowa Department of Human Services

(DHS) due to concerns of domestic abuse and substance abuse in the home. So

the children were informally placed with the maternal grandparents.         But the

children were formally removed from the parents’ care through an ex parte order

after the parents absconded with I.J. and refused to return I.J. to the grandparents

when confronted by police.

       Given this conduct and history of domestic violence, the family case plan

required the father to participate in a number of services intended to address the

root cause of his behavior. Among these services, the father agreed to obtain a

substance-abuse      evaluation,    follow   the    substance-abuse      evaluation

recommendations, participate in random drug testing, participate in counseling,

obtain a psychological evaluation, and follow the psychological evaluation

recommendations.

       However, the father took steps to avoid complying with a number of these

services. At the termination hearing, he claimed he completed a psychological

evaluation but never received the results because the doctor moved to a new

facility. Then he conceded he had not completed the evaluation. The father

proclaims that he has no mental-health issues. But he is able to do so in part
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because he never completed the required psychological evaluation, which would

provide critical insight to his behavior and identify any mental-health issues.

       He also avoided drug testing through a substance-abuse program by

indicating that DHS was testing him. In doing so, he avoided the drug testing

component of substance-abuse treatment. And he missed drug testing scheduled

by DHS. We presume these missed drug tests would have resulted in positive

tests. See, e.g., In re L.B., No. 17-1439, 2017 WL 6027747, at *2 (Iowa Ct. App.

Nov. 22, 2017); In re C.W., No. 14-1501, 2014 WL 5865351, at *2 (Iowa Ct. App.

Nov. 13, 2014) (“She has missed several drug screens, which are thus presumed

‘dirty,’ i.e., they would have been positive for illegal substances.”). A case worker

also observed what appeared to be a marijuana stem in the toy room in the father’s

house during a recent visit.

       Moreover, the father was inconsistent with visitation. He attended twenty-

two of the fifty-nine visitations offered to him. He missed some visits because he

had errands to run or was in jail. His participation in parenting classes, which

immediately followed visitation, was also inconsistent. So the father failed to

progress to unsupervised visits with the children.         Without the necessary

progression from supervised visits to unsupervised visits or trial home visits, “we

cannot say the children could have returned to the [father]’s care.” See In re C.N.,

No. 19-1961, 2020 WL 567283, at *1 (Iowa Ct. App. Feb. 5 2020).

       Most troubling, the father continues to deny his issues with domestic

violence.   Yet during the pendency of this case, the father has perpetrated

domestic violence. He threw a brick through the mother’s car window—striking

her in the face while the children were present. With respect to another instance,
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the mother testified, “He pushed me into the wall and told me that he could hurt

me very badly. He said that he would smash me between my bed and my wall.”

Later the same evening, he struck the mother in the face.

       Following the mother’s testimony at the termination hearing regarding past

instances of domestic violence, the father exited the courtroom and then re-

entered to exclaim, “It’s a bunch of false testimony trying to be made here, lying

on me.”3 The father’s response and demeanor following the mother’s testimony

was concerning enough to prompt the juvenile court to issue a no-contact order

protecting the mother. The father’s denial of domestic violence in spite of evidence

to the contrary presents a significant barrier to reunification. See In re A.M., No.

19-1735, 2020 WL 825975, at *3 (Iowa Ct. App. Feb. 19, 2020) (“If a parent ‘has

gained very little insight’ over the course of the proceedings about domestic

violence and the danger it poses to the family, returning young children to that

parent’s care goes against their welfare.” (quoting In re T.S., 868 N.W.2d 425, 435

(Iowa Ct. App. 2015))).

       For these reasons, we find the first step in our review reveals the State

established a ground for termination under section 232.116(1).

       B. Best Interests

       Next, we consider whether termination is in the children’s best interests. In

considering the best interests of the children, we “give primary consideration to the

child[ren]’s safety, to the best placement for furthering the long-term nurturing and



3The court found the father was not credible but found the mother’s testimony to
be credible. We defer to the juvenile court’s credibility findings. See M.W., 876
N.W.2d at 219 (noting we give weight to the juvenile court’s credibility findings).
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growth of the child[ren], and to the physical, mental, and emotional condition and

needs of the child[ren].” P.L., 778 N.W.2d at 40 (quoting Iowa Code § 232.116(2)).

“It is well-settled law that we cannot deprive a child of permanency after the State

has proved a ground for termination under section 232.116(1) by hoping someday

a parent will learn to be a parent and be able to provide a stable home for the

child.” Id. at 41.

       We conclude termination is in the children’s best interests. The children are

in the care of the maternal grandparents who are willing to adopt them. See Iowa

Code § 232.116(2)(b).      This would provide them with safety and stability.

Moreover, their older half-sibling is also in the grandparents’ care. And termination

would assist in keeping the children together. See In re S.K.C., 435 N.W.2d 403

(Iowa Ct. App. 1988) (finding termination in the child’s best interest because it

allowed her to remain with her siblings).

       Accordingly, on the second step of our review, we conclude termination is

in the children’s best interests. See J.E., 723 N.W.2d at 802 (Cady, J., specially

concurring) (noting the child’s safety and need for permanency are the “defining

elements” under the best-interest analysis).

       C. Exceptions to Termination

       Finally we consider whether to apply section 232.116(3)(c) to preclude

termination. “[T]he parent resisting termination bears the burden to establish an

exception to termination” under section 232.116(3). A.S., 906 N.W.2d at 476.

Even if the parent proves an exception, we are not required to apply the exception.

See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014). We exercise our discretion,

“based on the unique circumstances of each case and the best interests of the
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child[ren],” to determine whether the parent-child relationships should be saved.

Id. (citation omitted).

       The father makes a passing reference to section 232.116(3)(c) to resist

termination. Section 232.116(3)(c) permits the court to forgo termination when

“[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.” “[O]ur

consideration must center on whether the child[ren] will be disadvantaged by

termination.” D.W., 791 N.W.2d at 709. In this instance, we do not believe the

bond between the father and the children is so strong that the children will be

disadvantaged by termination. So we decline to apply this permissive exception.

III. Conclusion

       The juvenile court was correct in terminating the father’s parental rights.

       AFFIRMED.
