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IN THE COURT OF APPEALS OF IOWA No. 0-863 / 10-1632 Filed December 8, 2010

IN THE INTEREST OF D.W., Minor Child, D.Q.W., Father, Appellant. ________________________________________________________________

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

A father appeals from the order terminating his parental rights. AFFIRMED.

Alexandra Nelissen of Nelissen & Juckette, P.C., for appellant father. Thomas J. Miller, Attorney General, Janet Hoffman, Assistant Attorney General, John P. Sarcone, County Attorney, and Faye Jenkins, Assistant County Attorney, for appellee State. Barbara Davis, West Des Moines, for Intervenor. Nicole Garbis Nolan of the Youth Law Center, Des Moines, for minor children.

Considered by Mansfield, P.J., and Danilson and Tabor, JJ.

2 DANILSON, J. A father appeals the termination of his parental rights to his six-year-old daughter. He contends the State failed to prove the grounds for termination by clear and convincing evidence and that termination is not in the child's best interests. He further contends his parental rights should not be terminated

because the child is in the custody of relative, and due to the closeness of the parent-child relationship. Considering the father's incarceration during the first nine months of these proceedings, his criminal history, and his failure to complete case plan requirements upon his release from prison, we conclude there is clear and convincing evidence the child cannot be returned to his care at this time. We further agree that termination is in the child's best interests,

despite the child's placement with her maternal grandmother and any presence of a parent-child bond. We affirm termination of the father's parental rights. I. Background Facts and Proceedings. The child was born in October 2004. The parents were not involved in a committed relationship, and in fact, their relationship "appears to have been steeped in conflict." The mother and the child lived in Des Moines. The father lived in Kansas City and made frequent trips to Des Moines to visit the child during her first year of life. The child first came to the attention of the Iowa Department of Human Services in August 2005, when she was ten months old, as a result of the mother's active use of methamphetamine. She was

adjudicated in need of assistance (CINA) and placed with the maternal grandmother. The father and the paternal grandmother appeared in court and were involved with the CINA proceedings. The court ordered an Interstate

3 Compact for the Placement of Children (ICPC) review of both the father and the paternal grandmother's homes in the Kansas City area , but neither home was approved for the child's placement.1 The court also ordered the father to

complete a drug test, which was negative, and he was allowed visitation with the child. However, during the CINA proceedings, very little focus was on the father as a noncustodial, out-of-state parent. In August 2006, after the mother had successfully completed substance abuse treatment and "appeared to be in solid recovery," the child was returned to the mother's care, and the case was closed. A formal visitation, custody, or child support order was not sought by either parent. The father had informal visitation with the child in 2006 and 2007, but conflict persisted between the father and mother. As a result of the inability of the parents to get along, the father stopped trying to have contact with the child for a short time in early 2007. In August 2007, the father was charged with having committed a criminal threat and an aggravated battery as a part of a domestic incident in Kansas City. The alleged victim was the father's long-time girlfriend. The girlfriend complained of substantial violence committed upon her by the father. Physical evidence at the scene and from the victim generally corroborated the violence and injuries.

The ICPC reviews were completed in early 2006. The father's home was not approved because he had no experience being a primary caretaker for the child; he had a history of domestic abuse; and because he was on probation. The report also noted that the father had two older sons by two different mothers who had never been in his custody, although he did spend time with them and provided child support when he was able. The paternal grandmother's home was not approved primarily because of the grandmother's physical health and inability to care for the child who was then an active toddler.

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4 Subsequently, the father pled guilty to aggravated battery and went to prison in August 2007.2 While the father was in prison in Kansas, another CINA case involving the child was initiated in Iowa. In March 2008, the child was removed from the mother's care because the mother was again actively using methamphetamine and was selling methamphetamine from their home. The child was again placed with the maternal grandmother, where she has remained since that time. The mother's parental rights were later terminated, and this court affirmed the termination decision in In re D.W., No. 09-0941 (Aug. 19, 2009). The father was appointed counsel in April 2008. The paternal

grandmother was active in the CINA proceedings and engaged in visitation with the child. The father was released from prison in December 2008 and sought to engage in services. The court entered an order in January 2009 stating that the father was granted visitation with the child as professionally supervised by the child's therapist and DHS caseworker. parenting classes and individual The father was ordered to attend and to comply with DHS

therapy,

recommendations.

The court also ordered an ICPC review of the paternal

grandmother's home where the father was staying after his release from prison the month prior. The home was not approved for placement of the child. The paternal grandmother completed the necessary forms and there was a home

Prior to these proceedings, the father was charged with disorderly conduct for a domestic incident that occurred with the mother of one of his sons, and he spent two days in jail. He was later charged with domestic violence assault for a domestic dispute involving a different woman he was living with at the time. The father also testified that he previously sold cocaine and received eighteen months probation after he pled guilty to cocaine paraphernalia charges.

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5 visit. However, the father was not at the home at the time of the visit, and

although he was given the opportunity, he failed to provide the appropriate paperwork to complete the report. The father attended several parenting classes in the spring of 2009. He attended therapy six times in the summer of 2009. significant visitation with the child. The father engaged in

It appears the father and the paternal

grandmother visited with the child two weekends per month, and that the father drove the child to and from Kansas City for these visits. Caseworkers described these visits as positive for the child, but explained that the child faced insecurity, confusion, and anxiety issues, and had trouble leaving the maternal grandmother to go on visits. The child had been in the uninterrupted custody of the maternal grandmother since March 2008. Prior to that time, the child had lived either with the maternal grandmother or with the mother and the maternal grandmother, for the majority of her life. It was clear to caseworkers and the child's therapist that the maternal grandmother was the one person the child felt secure with after a lengthy history of disruption and loss, and it was likely that the child would have an "extreme grief reaction" if she were taken away from the maternal grandmother. DHS advised the father that he needed to address attachment and anxiety issues in child trauma cases to prepare himself to be able to care for the child's needs. The record does not show that the father engaged in therapy to address those issues. In fact, the father did not attend any therapy or parenting classes after the summer of 2009. In September 2009, a mediation agreement was

6 established between the father and maternal grandmother. The agreement fixed a visitation schedule and addressed other co-parenting type issues. The child appeared to be doing very well with the arrangement. She was thriving in the maternal grandmother's care, and enjoyed visitation with the father and paternal grandmother. Caseworkers attempted to reach an agreement with the father that the child would be placed in a guardianship with the maternal grandmother with visitation rights to the father. In February 2010, the court

granted a continuance, as the parties were trying to reach a resolution. By April 2010, it became clear the father would not agree to a guardianship with visitation rights, and the State filed its petition to terminate the father's parental rights. Caseworkers, including the child's therapist, and the

guardian ad litem recommended termination of the father's parental rights if a guardianship/visitation agreement could be not established. Following a hearing over two days in June and July 2010, the juvenile court entered its order terminating the father's parental rights pursuant to Iowa Code sections 232.116(1)(e) and (f) (2009). The father appeals. II. Standard of Review. We review termination proceedings de novo. In re Z.H., 740 N.W.2d 648, 650-51 (Iowa Ct. App. 2007). Although we are not bound by them, we give weight to the district court's findings of fact, especially when consider ing the credibility of witnesses. Iowa R. App. P. 6.904(3)(g); In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993). The parent-child relationship is constitutionally protected.

Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554, 54 L. Ed. 2d 511, 519 (1978). The State has the burden of proving the grounds for termination by clear

7 and convincing evidence. In re P.L., 778 N.W.2d 33, 34, 39 (Iowa 2010); In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). III. Clear and Convincing Evidence. The father contends clear and convincing evidence does not support termination under Iowa Code sections 232.116(1)(e) or (f) (2009). We may affirm the termination if facts support the termination of the father's parental rights under any of the sections cited by the juvenile court. See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999). We focus our analysis on appeal on section

232.116(1)(e). Termination is appropriate under that section where there the State has proved the following: (1) The child has been adjudicated CINA. (2) The child has been removed from the physical custody of the parent for a period of at least six consecutive months. (3) There is clear and convincing evidence that the parent has not maintained significant and meaningful contact with the child during the previous six consecutive months and has made no reasonable effort to resume care of the child despite being given the opportunity to do so. Iowa Code

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