                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1973
                             Filed January 28, 2015

IN THE INTEREST OF C.L. and S.L.,
      Minor Children,

R.L., Father,
       Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,

District Associate Judge.



      A father appeals from the order terminating his parental rights to two

children and the denial of his motion to dismiss. AFFIRMED.



      Nancy L. Pietz of Pietz Law Office, Des Moines, for appellant.

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

Attorney General, John P. Sarcone, County Attorney, and Kevin Patrick,

Assistant County Attorney, for appellee.

      Lisa Pendroy, Des Moines, for mother.

      Michael Saveraid of Youth Law Center, Des Moines, attorney and

guardian ad litem for minor children.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, J.

       Reginald, the father of C.L. and S.L., appeals from the order terminating

his parental rights and the juvenile court’s denial of his motion to dismiss. He

contends the juvenile court erred in denying his motion to dismiss the termination

petition.   He also contends the statutory grounds for termination are not

supported by clear and convincing evidence, termination is not in the children’s

best interests, and the court failed to consider the exceptions to termination in

Iowa Code section 232.116(3) (2013).

                                        I.

       The children were removed in May 2012 when the mother was arrested on

drug charges; Reginald was unavailable because he was incarcerated.            The

children initially were placed in the legal custody of the Iowa Department of

Human Services (“IDHS”) for foster care placement, then placed in the legal

custody of the maternal grandmother under IDHS supervision. That placement

was continued at the disposition and review hearings due to the parents’

unresolved substance abuse issues, criminal issues, and mental health issues.

Reginald was released from jail in 2013, and he and the mother relapsed on

methamphetamine in March.       The April 2013 permanency order returned the

children to the legal custody of the mother under IDHS supervision and granted

concurrent jurisdiction to the district court to establish custody, visitation, and

support. Reginald was back in jail on a probation violation until September.

       By the time of the April 2014 permanency review hearing, Reginald was

back in jail. In May, the State petitioned to terminate his parental rights under
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Iowa Code section 232.116(1)(d), (e), (f), and (l).1      In July, Reginald filed a

motion to dismiss, alleging in part, if the case were dismissed he “would have no

legal rights to the children unless he would take some sort of action to establish

parental rights through a district court paternity action.” At the beginning of the

termination hearing in August, in which Reginald participated by telephone from

prison, the court heard argument on the motion and denied it.             The court

terminated Reginald’s parental rights on all the grounds pled. Reginald appeals.

                                         II.

       We review rulings on motions to dismiss for correction of errors at law.

See Madden v. City of Iowa City, 848 N.W.2d 40, 44 (Iowa 2014); Iowa R. App.

P. 6.907. We accept as true the facts alleged in the petition and typically do not

consider facts contained either in the motion to dismiss or in any accompanying

attachments. See Geisler v. City Council of Cedar Falls, 769 N.W.2d 162, 165

(Iowa 2009).

       We review de novo proceedings terminating parental rights. See In re

A.M., 843 N.W.2d 100, 110 (Iowa 2014). We examine both the facts and law,

and we adjudicate anew those issues properly preserved and presented. See In

re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We give weight to the

findings of the juvenile court, especially concerning the credibility of witnesses,

but we are not bound by them. See id. at 480-81. While giving weight to the



1
 We note the petition alleges (and the court found) Reginald has “a severe, chronic
substance abuse problem,” which was the statutory language before the 2011
amendment. Termination under section 232.116(1)(l) now requires the court to find the
parent has “a severe substance-related disorder,” which is an objective, “diagnosable
substance abuse disorder.” See Iowa Code § 125.2(14).
                                          4



findings of the juvenile court, our statutory obligation to review termination

proceedings de novo means our review is not a rubber stamp of what has come

before. We will thus uphold an order terminating parental rights if there is clear

and convincing evidence of grounds for termination. See In re C.B., 611 N.W.2d

489, 492 (Iowa 2000). Evidence is “clear and convincing” where there are no

serious or substantial doubts as to the correctness of the conclusions of law

drawn from the evidence. See id.

       Termination of parental rights under Iowa Code chapter 232 follows a

three-step analysis. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). First, the

court must determine if a ground for termination under section 232.116(1) has

been established. Id. Second, if a ground for termination is established, the

court must apply the framework set out in section 232.116(2) to decide if

proceeding with termination is in the best interests of the child. Id. Third, if the

statutory best-interests framework supports termination of parental rights, the

court must consider if any statutory exceptions set forth in section 232.116(3)

should serve to preclude termination. Id.

                                         III.

       Reginald first contends the court erred in denying his motion to dismiss.

He argues if the court had granted his motion to dismiss, then he would have had

to take some affirmative action to establish legal rights to the children. See, e.g.,

Iowa Code § 600B.7 (proceeding to establish paternity). He further asserts the

children were in the custody of their mother, so his parental rights need not be

terminated.
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      Accepting the facts alleged in the petition to terminate parental rights as

true, we conclude the court did not err in overruling the father’s motion to

dismiss. The children’s best interests would not be served by forcing the State to

initiate child-in-need-of-assistance proceedings anew.

      Reginald next contests each of the statutory grounds cited by the court in

terminating his parental rights. The court terminated Reginald’s parental rights

pursuant to section 232.116(1)(d), (e), (f), and (l). We may affirm the court’s

termination order on any ground we find supported by clear and convincing

evidence. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). Upon our de novo

review of the record, we conclude grounds for termination exist under section

232.116(1)(f). Concerning this ground, Reginald argues the children were never

in his custody so there is no evidence they were “removed from” his custody.

See Iowa Code § 232.116(1)(f)(3) (requiring that the child “has been removed

from the physical custody of the child’s parents”).      The supreme court has

rejected a similar argument, that the statutory language “custody of the child has

been transferred from the child’s parents” required proof that custody had been

transferred from both parents.    See In re N.M., 491 N.W.2d 153, 154 (Iowa

1992); see also Iowa Code § 4.1(17) (providing when interpreting statutes, “the

singular includes the plural, and the plural includes the singular). To understand

the statutory language in section 232.116(1)(f) otherwise would mean one

parent’s parental rights could not be terminated if the child was in the custody of

the other parent, because section 232.116(1)(f)(4) requires a finding the child

“cannot be returned to the custody of the child’s parents” at that time.       We
                                         6



conclude termination of Reginald’s parental rights pursuant to section

232.116(1)(f) was appropriate.

       Reginald also contends termination is not in the best interests of the

children.   Iowa Code section 232.116(2) requires the court to “give primary

consideration to the child[ren]’s safety, to the best placement for furthering the

long-term nurturing and growth of the child[ren], and to the physical, mental, and

emotional condition and needs of the child[ren].” The record supports the court’s

conclusions:

       There are ongoing concerns about the safety of the children if
       placed in the care and custody of their father. The children need a
       long-term commitment by an adult who can be appropriately
       nurturing, supportive of their growth and development, and who can
       appropriately meets their physical, mental, and emotional needs. It
       is clear that Reginald has a long history of not being able to provide
       a consistent parental presence in his children’s lives. He has not
       . . . met their physical, mental, or emotional needs. Reginald has
       acted in manners completely adverse to their healthy development
       in his arson and domestically violent criminal actions, by his threats
       towards their mother, and by absconding from probation bringing
       incarceration. . . .
               . . . Given Reginald’s history of threats towards [the mother]
       and actions against a mother of some of his other children support,
       it is reasonable to conclude that [the mother] and the children will
       be safer by terminating Reginald’s parental rights.

We agree with the court that termination of Reginald’s parental rights is in the

best interests of these children.

       Finally, Reginald contends the court failed to consider the factors in

section 232.116(3). He argues the children are placed with a relative, they “have

a bond with [him] and know who he is,” “there are extended family members and
                                                7



a great number of half-siblings whose relationships” would be affected,2 and

there was no expert testimony that termination would be less detrimental to the

children than continuing their relationship with him.            See Iowa Code

§ 232.116(3)(a) and (c).

          The factors in section 232.116(3) are permissive, not mandatory, and the

court may use its discretion, based on the unique circumstances of each case

and the best interests of the children, whether to apply the factors in this section

to save the parent-child relationship. In re A.M., 843 N.W.2d 100, 113 (Iowa

2014). Section 232.116(3)(c) does not require expert testimony concerning the

effect of termination. The court considered and rejected application of the factors

in section 232.116(3)(a) and (c) based on the circumstances of this case and the

best interests of the children. We agree and conclude under the circumstances

in this case, none of these factors “should serve to preclude termination.” See

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

          AFFIRMED.




2
    This is not a factor to consider in section 232.116(3).
