                       IN THE COURT OF APPEALS OF IOWA

                                      No. 19-2079
                                  Filed July 22, 2020


IN THE INTEREST OF H.B.,
Minor Child,

J.B., Father,
       Appellant.
________________________________________________________________


          Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

District Associate Judge.



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

AFFIRMED.



          Raya D. Dimitrova of Carr Law Firm, P.L.C., Des Moines, for appellant

father.

          Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

          Karl Wolle of the Juvenile Public Defender Office, Des Moines, attorney and

guardian ad litem for minor child.



          Considered by Vaitheswaran, P.J., Ahlers, J., and Carr, S.J.*

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

(2020).
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CARR, Senior Judge.

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

challenges the grounds for termination and the finding that termination is in the

child’s best interests. The father also seeks to avoid termination because the child

is in the custody of a relative. We review his claims de novo. See In re A.S., 906

N.W.2d 467, 472 (Iowa 2018).

       The child, now eight years old, came to the attention of the Iowa Department

of Human Services (DHS) in December 2017 due to allegations that the mother

was under the influence of methamphetamine while caring for the child, which the

mother admitted. The same month, the father was arrested after a physical

altercation with his girlfriend in the home while the child was present. He pled

guilty to domestic abuse assault by strangulation as a result of that incident.

       The juvenile court ordered the child removed from the home in January

2018 and adjudicated the child to be in need of assistance (CINA) the following

month based on the mother’s substance use and the father’s domestic violence.

In the year that followed, the mother continued to struggle with substance use and

the father made little progress. But because the child was in a relative placement

and both parents made some progress late in the case, the court delayed

permanency for six months. The mother continued to make headway, and the

juvenile court returned the child to her care in May 2019. In contrast, the father

largely ceased his engagement with services in March 2019. Eventually, the

child’s therapist recommended suspending the father’s visits due to his issues with

regulating his emotions, especially anger.
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      In August 2019, the State petitioned to terminate the father’s parental rights.

The DHS, the mother, and the child’s attorney and guardian ad litem were in favor

of terminating the father’s parental rights. The father contested termination but

agreed that the child should remain in the mother’s care. Following a September

2019 hearing, the district court terminated the father’s parental rights under Iowa

Code section 232.116(1)(f) (2019).

      In order to terminate under section 232.116(1)(f), clear and convincing

evidence must show:

             (1) The child is four years of age or older.
             (2) The child has been adjudicated a child in need of
      assistance pursuant to section 232.96.
             (3) The child has been removed from the physical custody of
      the child’s parents for at least twelve of the last eighteen months, or
      for the last twelve consecutive months and any trial period at home
      has been less than thirty days.
             (4) There is clear and convincing evidence that at the present
      time the child cannot be returned to the custody of the child’s parents
      as provided in section 232.102.

The father challenges the evidence showing the child could not be returned to his

custody at the time of termination without exposing the child to harm amounting to

a new CINA adjudication. See Iowa Code § 232.116(1)(f)(4); In re D.W., 791

N.W.2d 703, 707 (Iowa 2010) (interpreting “at the present time” to mean “at the

time of the termination hearing”); In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App.

2016) (noting a child cannot be returned to a parent’s custody as provided in

section 232.102 if doing so would expose the child to any harm amounting to a

new CINA adjudication). The father argues the evidence falls short because he

had the means to care for and support the child at the time of the termination

hearing.
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       The evidence shows the same concerns that prevented the child from being

placed in the father’s care at the start of the CINA proceedings persisted at the

time of termination. As the juvenile court found, the father

       failed to meaningfully address substance abuse, domestic violence,
       and mental health issues. He has failed to maintain any contact with
       the child for the past five months and prior to that had not maintained
       consistent contact with the child throughout the duration of the [CINA]
       case. The father acknowledged the child should remain in the
       mother’s full custody and that his behaviors have emotionally
       harmed this child, to the point the child has come to the conclusion
       the father must be dead. He also acknowledged . . . his own
       stubbornness was the reason for his delay in engagement in
       services. The Court finds these unresolved issues prevent this child
       from being safely returned to the father’s custody.

On our de novo review, we concur in the juvenile court’s findings. Overwhelming

evidence shows the child could not be returned to the father’s care at the time of

the termination hearing.

       We next consider whether termination is in the child’s best interests. See

Iowa Code § 232.116(2); In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). In making

this determination, we “give primary consideration to the child’s safety, to the best

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

physical, mental, and emotional condition and needs of the child.” Iowa Code

§ 232.116(2). The “defining elements” are the child’s safety and “need for a

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

       The father claims terminating his parental rights is contrary to the child’s

best interests because he has a relationship with the child. But the father’s last

visit with the child was in May 2019, and the visits ended because of the father’s

behavior and the negative effect it had on the child. And the record shows the
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father is unwilling to do what is necessary for the child. As the juvenile court noted,

the father

       essentially admitted that although he loved his son, he did not love
       him enough to participate in drug testing as requested by the DHS,
       did not love him enough to consistently attend [Family Safety, Risk,
       and Permanency] visits, did not love him enough to participate in
       child’s therapy, did not love him enough to complete his drug classes,
       and did not love him enough to participate in domestic violence
       services during the [CINA] case.

As a result of the father’s choices and behavior, the child considered the father to

be “dead.”    Clear and convincing evidence shows termination of the father’s

parental rights is in the child’s best interests.

       Finally, the father seeks to avoid termination of his parental rights under

section 232.116(3), which provides that the court need not terminate parental

rights in certain situations. One of these situations is when the child is in the legal

custody of a relative. See Iowa Code § 232.116(3)(a). But the application of

section 232.116(3) is permissive rather than mandatory. See A.S., 906 N.W.2d at

475. Whether the court applies the section to avoid terminating parental rights

based on any of the situations listed under section 232.116(3) will depend on the

facts of the case. See id. Our supreme court has stated that when termination is

appropriate under those facts, that decision “is not to be countermanded by the

ability and willingness of a family relative to take the child.” Id. (citation omitted).

Although the record shows the father would benefit from applying section

232.116(3)(a) to avoid termination, the child would not. We decline to apply the

section to preserve the parent-child relationship. See In re J.L.W., 570 N.W.2d

778, 781 (Iowa Ct. App. 1997) (“At some point, the rights and needs of the child
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rise above the rights and needs of the parents.”), overruled on other grounds by

P.L., 778 N.W.2d at 40.

       Because clear and convincing evidence supports terminating the father’s

parental rights under Iowa Code section 232.116(1)(f) and termination is in the

child’s best interests, we affirm.

       AFFIRMED.
