                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0981
                                Filed July 22, 2015


IN THE INTEREST OF C.Y.-E.,
Minor Child,

C.E., Father,
Appellant,
________________________________________________________________


       Appeal from the Iowa District Court for Dubuque County, Thomas J.

Straka, Associate Juvenile Judge.



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



       Christopher M. Soppe, Dubuque, for appellant father.

       Daniel McClean, of McClean & Heavens Law Offices, Dyersville, for

appellant intervenor.

       Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant

Attorney General, Ralph Potter, County Attorney, and Joshua A. Vander Ploeg,

Assistant County Attorney, for appellee State.

       Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, attorney and

guardian ad litem for minor child.



       Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DOYLE, J.

       A father appeals the termination of his parental rights. We affirm.

       I. Background Facts and Proceedings.

       C.E. is the father and S.Y. is the mother of C.Y.-E., born in March 2012.

The child’s parents both have a history of substance abuse. The child tested

positive for oxycodone exposure at birth. At that time, the father was married to

N.E. Because the child’s mother was scheduled to serve a jail sentence shortly

after the child’s birth, the mother arranged that the child be cared for by the father

and N.E.

       The father and N.E. married in 2007, and they had had marital problems

for some time. Prior to their marriage, the father and N.E. each had two founded

child-abuse reports in 2004 concerning another child for denial of critical care for

failure to provide proper supervision and presence of illegal drugs. The couple

tragically lost another child in an accident in 2011.

       In June 2012, N.E. kicked the father out of their home. The father took the

child with him, and concerns were conveyed to the Iowa Department of Human

Services (DHS) regarding the father’s ability to care for the child safely. It was

reported the father had not given the child his medication as needed, had not fed

the child properly, and had driven with the child on his lap, among other things.

The DHS case worker noted the father “would use [the child] to get to [N.E.] so

that she would allow him back in the home. He knew that [N.E.] wanted to be a

part of [the child’s] life and would use that to get what he wanted.” Voluntary

services were offered to the family, and eventually the child and the father

resumed living with N.E.
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       In February 2013, N.E. served the father divorce papers, and the father

“responded poorly to this and threatened to harm himself,” barricading himself in

the bathroom with a gun. N.E. heard what sounded like a shotgun being loaded,

and she got out of the home and called 9-1-1; the child remained in the home.

After arriving, law enforcement officials attempted to talk the father into coming

outside for thirty to forty minutes with no response. The officers then went into

the home to locate the father to bring him and the child out safely, but the father

had somehow fled the home, leaving the child alone in the house.                 While

searching for the father in the home, officers found methamphetamine precursors

and drug paraphernalia in the basement. The father returned home and was

arrested and charged with child endangerment and possession of precursors. A

no-contact order between the father and the child was entered thereafter. The

child remained in N.E.’s care, but because the father was unable to care for the

child while N.E. was at work, N.E. had the father’s relatives care for the child

when she was unable to do so.

       Both the father and the child’s hair tested positive for methamphetamine

thereafter. N.E.’s drug tests were negative for illegal substances. The DHS case

worker met with the father to discuss what plans he wanted to make for the child,

“as there was still a no-contact order in place and [N.E.] was wanting to move

forward with the divorce.” N.E. joined the discussion, and though N.E. had been

the child’s primary caregiver since the child’s birth, the father

       talked about having [the child] go and stay with [his relatives], so he
       could move back into the house with [N.E.]. He had stayed there
       two other nights when [the child] was with [his relatives]. [N.E.] said
       she didn’t want [the father] at the house, but wanted to be part of
       [the child’s] life. [N.E.] acknowledged that [the father] would use
                                            4


       [the child] as a “pawn” to get what he wanted because he knew
       how attached [N.E.] is to [the child]. [The father] said if [N.E.] was
       going to go ahead with the divorce, he should leave [the child] with
       [his relatives]. The conversation did not go well. [N.E.] was
       emotional and upset that [the father] was talking about moving [the
       child] just because he wanted to hurt her. [The father] got upset
       with [N.E.] wanting to divorce him and losing his family. . . .
               [The father] did agree to sign a safety plan to agree to leave
       [the child] in the care of [his relatives] until . . . [the relatives] could
       arrange visitation with [N.E.].

The child has remained in the relatives’ care since that time.

       In March 2013, the State filed a petition asserting the child was a child in

need of assistance (CINA), and a pre-hearing conference was set for the

following month. The DHS case worker and service provider both noted the

father went “back and forth about identifying [N.E.] as a caregiver for [the child].”

At times he supported N.E. having visitation with the child, including overnight

visits, only to change his mind and refuse N.E. visits with the child. Just before

the pre-hearing conference, the DHS case worker reported the father indicated

he wanted the child “to have contact with [N.E.], but not regular contact.” Though

the service provider discussed with the father the role N.E. had played in the

child’s life “and how no contact or inconsistent contact could negatively impact

[the child],” the father “did not appear to care.” Service providers had pointed out

to the father that he had “a history of using [the child] to get to [N.E.] or get what

he want[ed] from [N.E.],” but the father “typically ha[d] no response.” Since N.E.

was not the child’s biological mother and the father did not want N.E. to have

interactions with the child at that time, the DHS stopped visits between N.E. and

the child.
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       Following the prehearing conference, the juvenile court entered a pre-

hearing order directing that the child “be removed from parental custody and

placed in the care, custody, and control of the [DHS] for appropriate . . . relative

placement.” The court also determined N.E. should have visitation with the child,

and visits between N.E. and the child resumed.

       The child was adjudicated a CINA in May 2013, and at the time of the

adjudication hearing, both the mother and the father were incarcerated.         The

father remained in jail until the end of July 2013. While he was in jail and after

his release, the father was offered services for reunification.       However, by

September 2013, the father was “on the run” with a warrant out for his arrest and

federal charges pending. Between the time of his release and mid-September,

he had had only two interactions with the child through the service provider, and

though he could have gone to the relative caregivers’ home to have additional

visits with the child, he did not. Around the same time period, N.E. and the

father’s divorce was finalized.

       In December 2013, the DHS case worker recommended the father’s

parental rights be terminated. The case worker explained she did “not feel that

[the father] could take care of himself, let alone a child. There [were] significant

mental health issues as well as substance abuse issues that [had] not been

addressed.”    Thereafter, the State in January 2014 filed a petition seeking

termination of the father’s and mother’s parental rights. The child’s guardian ad

litem also recommended termination of the parents’ parental rights, and the

county foster care review board supported the recommendation.
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       Hearing on the State’s petition was held in May 2014. At that time, the

father was again incarcerated, awaiting sentencing after having pled guilty to two

counts of possession of precursors with intent to manufacture methamphetamine

and one count of manufacturing methamphetamine.            The father testified that

pursuant to his plea agreement, the State was recommending he be placed in a

residential correctional facility, but he would be requesting the sentencing court

grant him a deferred judgment. The father testified that the best case scenario if

he was placed at the facility was his release in three months, and even with the

State’s recommendation, the court could still impose a prison sentence of up to

twenty years. The father admitted that since the case began in February 2013,

he had only had three or four visits with the child and had not seen the child in

seven months. Nonetheless, he testified he had no concerns if the child was

placed in the care of N.E. or the mother, who was living with N.E. at that time.

He believed either would allow him to see the child “once he [got] through [his]

legal issues.”

       Following the hearing, the juvenile court entered its order terminating the

parents’ parental rights. The father now appeals.1 We review his claims de

novo. See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014).


       1
        We note that on June 23, 2015, the Iowa Supreme Court filed an order
concerning this case and N.E.’s related appeals in appellate case numbers 14-0554 and
14-1419, explaining:
               The father filed a notice of appeal and a petition on appeal
      following the termination of his parental rights. [N.E.] also filed a notice of
      appeal and petition on appeal in the same appellate case number. This
      court determined [N.E.’s] appeal was interlocutory[, renumbered her
      interlocutory appeal as number 14-0554,] and denied [N.E.’s] request [for
      interlocutory] appeal. Based on that order the clerk of the supreme court
      issued procedendo and this entire appeal was closed by the appellate
      clerk’s office. A review of this file indicates that the procedendo should
                                              7


       II. Discussion.

       In determining whether parental rights should be terminated under chapter

232 (2013), the juvenile court “follows a three-step analysis.” See In re D.W.,

791 N.W.2d 703, 706 (Iowa 2010). Step one requires the court to “determine if a

ground for termination under section 232.116(1) has been established” by the

State. Id. If the juvenile court finds grounds for termination, the court moves to

the second step of the analysis: deciding if the grounds for termination should

result in a termination of parental rights under the best-interest framework set out

in section 232.116(2). Id. at 706-07. In making this determination, the primary

considerations are the children’s safety, their best placement for furthering their

long-term nurturing and growth, and their physical, mental, and emotional

conditions and needs. Iowa Code § 232.116(2) (2013). Even if the juvenile court

finds “the statutory best-interest framework supports termination of parental

rights,” the court must proceed to the third and final step: considering “if any

statutory exceptions set out in section 232.116(3) should serve to preclude

termination of parental rights.” D.W., 791 N.W.2d at 707.

       On appeal, the father asserts the State failed to prove the grounds for

termination of his parental rights, and termination of his parental rights was not in

the child’s best interests, among other things. We address his arguments in turn.




       only have applied to [N.E.’s] attempt [for interlocutory appeal in number
       14-0554] filed on June 13, 2014. The court finds the father’s appeal from
       the termination of his parental rights is still pending before this court. This
       appeal shall be transferred immediately to the court of appeals for
       disposition.
The father’s case was then transferred to this court the same day.
                                           8


       A. Grounds for Termination.

       The grounds for termination must be proved by clear and convincing

evidence. Iowa Code § 232.116(1); see also D.W., 791 N.W.2d at 706. When

the juvenile court terminates parental rights on more than one statutory ground,

we may affirm on any ground we find supported by the record.                 D.W., 791

N.W.2d at 707; In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct. App. 1995). Here,

the juvenile court found the State proved the grounds under Iowa Code

subsection 232.116(1) paragraph (e) and (h). We choose to address the latter

ground.

       Iowa Code section 232.116(1)(h) provides parental rights may be

terminated if the court finds by clear and convincing evidence that (1) the child is

three years of age or younger, (2) has been adjudicated a CINA, (3) has been

removed from the physical custody of his parents for at least six months of the

last twelve months, and (4) there is clear and convincing evidence that the child

cannot be returned to the custody of the child’s parents at the present time. The

father does not challenge that the first two elements were proved. However, he

argues the statutory use of the word “parents” in Iowa Code section 232.116(1),

in its plural form, requires removal of the child from all of the child’s parents.2

Because, as his argument goes, the child was never removed from N.E.’s

       2
         Though Iowa Code section 232.116(1) subsections (e) and (h) both use the
word “parents,” the father only challenges subsection (e)’s use of the word. Because we
need only affirm on one ground, we could ignore his argument as to subsection (e) and
address only his explicit challenge to subsection (h), that the child could have been
returned to his care. See R.R.K., 544 N.W.2d at 276; see also Hyler v. Garner, 548
N.W.2d 864, 870 (Iowa 1996) (“[O]ur review is confined to those propositions relied upon
by the appellant for reversal on appeal”); In re D.S., 563 N.W.2d 12, 15 (Iowa Ct. App.
1997) (finding principles of res judicata barred a father who failed to appeal a juvenile
court order from raising the challenge on appeal). Nevertheless, we choose to address
it because the argument lacks merit.
                                           9


custody, the State did not prove element three. Additionally, he argues the State

failed to prove the child could not be returned to his custody. Upon our de novo

review, we find the State met its burden.

       Iowa Code section 232.2(39) defines the word “parent” as a biological or

adoptive parent.3 It does not include the word stepparent, which is mentioned in

a separate subsection under the definition of “custodian,” whose rights are

“subject to any residual rights and duties remaining in a parent or guardian.” See

Iowa Code § 232.2(11)(a)-(c); see also In re J.C., 857 N.W.2d 495, 501, 504

(Iowa 2014).     Here, the State established the child was removed from the

custody of his biological parents within the statutory time frame. We find that it

met its burden as to element three.

       Additionally, the father asserts that “[w]ithin a few days after the

termination hearing [he] was released from custody.” However, this assertion is

outside the closed record, and there was no evidence at the hearing that the

father would be immediately released.          Therefore, we cannot consider it on

appeal. See State v. Weiland, 202 N.W.2d 67, 69 (Iowa 1972) (noting appellate

courts cannot consider facts that are outside of the record). Regardless, the

father did nothing to work toward reunification with the child during the case. He

excuses his lack of participation during the proceedings because he was

incarcerated, and he further declares “[t]here was nothing in the record that the

child could not be returned to [his] care.”        While conviction of a crime and

resulting imprisonment do not necessarily result in termination of parental rights,


       3
        See our opinion filed today in the related case, In re C.Y.-E., No. 14-1419 (July
22, 2015), concerning N.E.’s appeal following the post-termination-placement hearing.
                                         10

incarceration cannot justify a parent’s lack of relationship with the child. See In

re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993). Here, the father’s incarceration is a

result of his own actions, and he did nothing in the short amounts of time during

the case when he was not incarcerated to evidence that he had any interest in

addressing his substance abuse or mental health issues or, frankly, parenting the

child. He had not even seen the child in at least seven months at the time of the

termination-of-parental-rights hearing, and the father was incarcerated at the time

of the hearing. There is no question the child could not be safely returned to the

father’s care at the time of the termination hearing. Accordingly, we agree with

the juvenile court that the State proved the ground for termination of parental

rights found in section 232.116(1)(h).

       B. Best Interests and Other Considerations.

       The father’s remaining arguments all concern N.E. The father asserts

termination of his parental rights was not in the child’s best interests because the

child could be placed with N.E., arguing there was a sibling bond between the

child and N.E.’s children. He weaves his argument into a claim that the juvenile

court erred in finding “no consequential factors weigh[ed] against termination,”

claiming that at the time of the termination-of-parental-rights hearing, the child

was in the custody of two relatives.

       At the time of the termination-of-parental-rights hearing, the child had

been in the care of the fathers’ relatives for sixteen months. Moreover, it was at

the father’s request, perhaps against the child’s best interests at that time, that

the child was placed with his relatives because he was mad at N.E., even though

at that time she had been the child’s primary caregiver. The father’s behavior
                                        11


throughout the case evidences his lack of insight into the needs of a young child

and his unwillingness to put someone else’s needs before his own. At the time of

the termination hearing, the child had been thriving in the care of the fathers’

relatives and was in need of permanency. Though it is unclear if the child is

bonded with his stepsiblings, there is no question he was bonded with N.E.

However, he was also bonded with the fathers’ relatives and their children.

Regardless, neither relationship concerns the father’s parental rights. We agree

with the juvenile court that termination of the father’s parental rights is in the

child’s best interests.

       Finally, the father maintains it was error to terminate his parental rights

“because the child was in the custody of a relative,” citing Iowa Code section

232.116(3)(a). He maintains the child was in the custody of both N.E. and his

relatives. This is factually incorrect. As of April 2013, the juvenile court removed

the child “from parental custody and placed [the child] in the care, custody, and

control of the [DHS] for appropriate . . . relative placement.” (Emphasis added.)

This means custody was placed with the DHS, not a relative. See Iowa Code

§ 232.116(3)(a); see also A.M., 843 N.W.2d at 112, 113 (noting that although

A.M. was in the care of her grandparents, she was not in their legal custody

making section 232.116(3)(a) inapplicable). Consequently, section 232.116(3)(a)

is inapplicable in the present case. See id.

       III. Conclusion.

       For the foregoing reasons, we affirm the juvenile court’s ruling terminating

the father’s parental rights.

       AFFIRMED.
