                       IN THE COURT OF APPEALS OF IOWA

                                      No. 17-1105
                               Filed September 13, 2017


IN THE INTEREST OF W.G.,
Minor Child,

J.G., Father,
       Appellant.
________________________________________________________________


          Appeal from the Iowa District Court for Polk County, Colin J. Witt, District

Associate Judge.



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

AFFIRMED.




          Eric W. Manning of Manning Law Office, P.L.L.C., Urbandale, for appellant

father.

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

General, for appellee State.

          Lynn M. Vogan of Youth Law Center, Des Moines, guardian ad litem for

minor child.



          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, Presiding Judge.

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

born in October 2015. His primary assertion on appeal is that he should be given

an additional six months to progress to reunification with W.G.                  However,

because the father has been incarcerated for most of the time since W.G. was

removed from the home, he has made little progress in advancing towards

reunification, and the earliest he could be paroled would be in April 2018, we

affirm the termination of the father’s parental rights.

       W.G. came to the attention of the Iowa Department of Human Services

(DHS) on July 26, 2016, on the allegation the mother and the father left W.G.—

then just ten months old—and a two-year-old half-sibling alone for an unknown

period of time. The father was using, as well as selling, drugs in the home.1

Drug paraphernalia, including spoons with methamphetamine residue and

needles, was found in various places in the house and was accessible to the

unattended small children. In a subsequent interview, the father admitted he had

been using methamphetamine for several months, and W.G. tested positive for

methamphetamine after his removal.               The father was arrested on various

charges on July 26, 2016.2 He pled guilty to four counts of forgery and one count

of prescription drug violation on October 18, 2016.              Although released on

October 27, 2017, to enter a substance abuse program, he was rearrested on



1
 The use of illegal substances in the home and the sale of drugs out of the home were
also attributable to the mother, but all facts herein refer only to the father. The mother’s
parental rights were also terminated; she does not appeal. The half-sibling’s father is
not the father of W.G.
2
  Although the removal order was filed August 25, 2016, W.G. was informally removed
and placed with family members on July 26, when both parents were arrested.
                                           3


November 17 for failure to return to jail. He was reincarcerated in March 2017 on

two counts of violating his probation and on new charges including burglary and

interference with official acts; a twenty-two-year prison term was imposed.

         After a May 22, 2017 contested hearing, at which the father testified

telephonically from prison, the district court terminated the father’s parental rights

under Iowa Code section 232.116(1)(e) and (h) (2017).

         We review termination proceedings de novo, giving weight but not being

bound by the district court’s fact findings. In re C.B., 611 N.W.2d 489, 492 (Iowa

2000).

         Before we address the merits of the father’s appeal, we must determine

whether the district court erred in proceeding with the termination hearing when

the father had not been served with notice of the hearing as required in Iowa

Code section 232.112, which provides:

                1. [Parents] shall be necessary parties to a termination of
         parent-child relationship proceeding and are entitled to receive
         notice and an opportunity to be heard . . . .
                ....
                3. Notice under this section shall be served personally or
         shall be sent by restricted certified mail, whichever is determined by
         the court to be the most effective means of notification. Such
         notice shall be made according to the rules of civil procedure
         relating to an original notice where not inconsistent with the
         provisions of this section. Notice by personal delivery shall be
         served not less than seven days prior to the hearing on termination
         of parental rights. Notice by restricted certified mail shall be sent
         not less than fourteen days prior to the hearing on termination of
         parental rights.[3]




3
 While the father makes one citation to “due process,” his argument is a challenge as to
whether the State served notice under our Iowa court rules, and not under the United
States or Iowa Constitutions.
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       The county attorney explained the notice had been faxed to the last known

address of where the father was being held, the Iowa Medical and Classification

Center (Oakdale), on April 28; however, he was apparently moved to Clarinda

Correctional Facility, and the notice missed him in transition.          The county

attorney’s office later filed an affidavit as to the notice served on the father. The

father’s attorney objected to both the lack of service and the process, asserting

“faxing” does not comply with the rule for service. As a remedy he requested a

six-month extension of time before the termination hearing was held.

       The court noted: “Clearly [the father’s] been in transition from—during the

course of this case to at least five different either jail, prison, or community-based

correctional facilities, so I understand.”       Moreover, the father’s attorney

acknowledged he had been properly served with notice of the termination

hearing, through EDMS (Electronic Document Management System).

       On May 18, the father’s attorney filed a motion for the father to appear

telephonically at the termination hearing, which the court granted that same day.

Because the father was well aware of the pending termination, his attorney was

served with notice, and the father was in contact with his attorney and

participated in the hearing, we find the error in service does not void the

termination proceeding such that the father’s request for a six-month hearing

delay should have been granted. See In re R.E., 462 N.W.2d 723, 727 (Iowa Ct.

App. 1990) (holding mother had sufficient notice of the termination proceeding as

she was apprised of the upcoming course of the proceedings, her attorney had

notice of the hearing, and the attorney had pretrial contact with the mother).
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          Next, the father challenges the district court’s findings under Iowa Code

section 232.116(1)(e) and (h), primarily asserting he should have been given six

more months to work towards reunification with W.G.                  We will address his

challenge to 232.116(1)(h).4          In re A.B., 815 N.W.2d 764, 774 (Iowa 2012)

(stating when rights are terminated on more than one statutory ground, the

reviewing court may affirm the juvenile court’s order on any ground supported by

the record).

          Specifically, the father takes issue with the district court’s findings under

(h)(4), asserting that he made the maximum effort he could make given his

circumstances, and he should be able “to demonstrate that he could live in the

community with a sober lifestyle and demonstrate adequate care of his child.”

Since the father was incarcerated in July 2016, he has seen W.G. one time, on

November 9, 2016. As the DHS worker testified, the father has either been “on

the run or incarcerated throughout the case.” The worker met with the father

several times while he was incarcerated, offering him mental health and

substance abuse evaluations and treatment, but other than securing a mental

health evaluation and spending a few days at a substance abuse treatment

program (from October 26 to November 10, 2016), the father failed to follow

4
    Paragraph (h) provides termination is warranted if,
                 The court finds that all of the following have occurred:
                 (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.
                 (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.
                                         6


through with offered services.     The DHS worker testified, “Instead of taking

advantage of those opportunities, he continued in criminal activity, which took

away from him seeing and having visits with [W.G.].” As for why he had not

participated in offered services, the father testified, “I don’t know. I was just

overwhelmed with everything going on.”

       The father, requesting a six-month extension of the termination

proceedings, asserted he was due for an annual review on April 6, 2018, at

which time he was hopeful he would be granted parole. If a six-month extension

from the termination hearing was granted, it would have expired in November

2017. Under Iowa Code section 232.104(2)(b), a 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.” The father’s hope to be paroled in April 2018 is well past that time

frame. Moreover, waiting until April 2018 would result in W.G. being out of his

father’s care over one and one-half years, at which time W.G. would be two and

one-half years old. A child needs a parent and cannot put off childhood until the

parent gets out of prison. In re A.C., 415 N.W.2d 609, 614 (Iowa 1987). The

record does not support the granting of such an extension.

       As to W.G.’s best interests under Iowa Code section 232.116(2), the

district court stated:

       What [W.G. has] been through in [his] young li[fe], and where [he’s]
       at and what [his] needs are now, we can’t wait. We certainly can’t
       wait until April 2018 and we can’t wait longer than that potentially to
       make sure [he] know[s] where [he’s] going to grow up and who’s
       going to meet [his] needs. . . . [I]t’s just a matter of meeting [his]
       daily and—since daily needs sets permanency, making sure [he’s]
                                         7


       cared for, making sure [he’s] safe. [This is a] vulnerable, young kid
       who needs to have those things done.

See In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially)

(stating that a child’s safety and the child’s need for a permanent home are the

“defining elements” in determining a child’s best interests).

       The father also asserts he “had a history of being bonded” to W.G., which

should impede the termination or his parental rights. However, the district court

found no impediments to termination, and we agree. W.G. was only ten months

old when the father was incarcerated, and any bond that may have existed at

that time has long since been diminished by the father’s own actions through his

criminal conduct and incarceration. We agree with the district court the statutory

grounds were proven by clear and convincing evidence, there were no

impediments to termination, and it is in W.G.’s best interests that his father’s

parental rights be terminated.

       AFFIRMED.
