IN RE E.S., 705 N.W.2d 507 (Iowa App. 2005)

No. 05-1166Court of Appeals of Iowa.
Filed September 14, 2005

Appeal from the Iowa District Court for Linn County, Fae Hoover-Grinde, District Associate Judge.

A father appeals from the juvenile court order terminating his parental rights to one of his children. AFFIRMED.

Michael M. Lindeman of Lindeman Law, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Harold Denton, County Attorney, and Kelly Kaufman, Assistant County Attorney, for appellee-State.

Melody Butz, Marion, guardian ad litem for minor child.

Lorraine Machacek, Cedar Rapids, for mother.

Considered by Sackett, C.J., and Mahan and Miller, JJ.

SACKETT, C.J.

Evert Sr., the father of Evert Jr., appeals from the juvenile court order terminating his parental rights to his son. He contends the State did not prove the statutory elements for termination by clear and convincing evidence and termination is not in the child’s best interest. The court also terminated the mother’s parental rights, but she is not involved in this appeal. On de novo review, we affirm.

The child was removed from his parents’ care in December of 2003 upon his release from the hospital after his birth in November. He was in family foster care throughout the pendency of this case with no trial periods at home. The parents irregularly exercised weekly supervised visitation, but never progressed even to semi-supervised visitation because of concerns about their mental health, substance abuse, and parenting abilities. Concerns about the father also arose when the State was involved in investigating the sexual abuse of his daughter and his inability to protect her or to place her with appropriate caretakers. He also was incarcerated at times during the pendency of this case. His drug test in June of 2004 was positive for illegal drugs. After August of 2004 the father refused to submit to any more drug tests until he was given more visitation. He did not receive any more substance abuse treatment after stopping the drug tests.

In July of 2004 the State petitioned to terminate both parents’ rights under Iowa Code sections 232.116(1)(a) (2005) (parents consent to termination), (e) (child CINA, child removed for six months, parent has not maintained significant and meaningful contact with the child), (g) (child CINA, parents’ rights to another child were terminated, parent does not respond to services), and (h) (child is three or younger, child CINA, removed from home for six of last twelve months, and child cannot be returned home). The hearing on the petition took place in January of 2005. In July the juvenile court issued its order terminating the father’s parental rights under sections 232.116(1)(e) and (h).[1]

Our review is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The State must prove the grounds for termination by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000). When the juvenile court relies on multiple grounds for termination, we may affirm if clear and convincing evidence supports any ground cited by the court. See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999).

The father raises two claims on appeal. First, that the State failed to prove the statutory grounds by clear and convincing evidence. He argues that

[m]uch focus was provided at the time of trial on the amount of time [the father] went without having visits with his child. [He] had limited control over his contact with his child even when the case began. To the extent that visits were arranged, the evidence would demonstrate that [he] cooperated and attended as many visits as he could even though he had to travel outside of his home, which became a challenge for him at times. The evidence would further demonstrate there is a bond between father and child. The evidence would demonstrate there was appropriate interaction between father and child and that the child benefited from the relationship.
[The father] believes that based on the fact that the court found the mother of the minor child . . . unfit as a parent, they did not give [him] a fair chance in parenthood.

The State contends the father has waived this issue on appeal because the arguments quoted in full above do not address “the elements contained in the grounds under which his parental rights were terminated.” See Iowa R. App. P. 6.14(1)(c); In re W.C., 489 N.W.2d 40, 41 (Iowa Ct.App. 1992). Concerning termination under paragraph (e), the State argues the father’s refusal to follow case plan requirements to deal with his substance abuse and to obey court orders to submit to drug tests prevented him from having significant and meaningful contact with the child. The State further argues, with respect to paragraph (h), that in addition to the father’s unresolved substance abuse issues, neither parent maintained any stable employment, which “makes it nearly impossible for them to provide a safe and stable home environment or provide for the necessities of raising a child.” It notes the father’s refusal to acknowledge any of the concerns about the mother’s ability as a parent and his willingness to have her care for the child.

We find clear and convincing evidence supports termination under section 232.116(1)(h). There is no dispute the first three statutory elements are satisfied. Concerning the fourth, the father does not expressly claim or argue his son could have been returned to his care at the time of the termination hearing. Starting almost a year before the termination order, the father stopped submitting to random drug tests or participating in substance abuse treatment. His criminal history, which included repeated probation violation problems, shows he is unwilling or unable to stop participating in behavior harmful to himself or others. He admitted at the hearing he was not taking medication for his mental health issues. He has made inappropriate decisions about the supervision and safety of at least one of his children. His refusal to acknowledge the mother’s inadequacies as a parent indicates he would leave the child with her unsupervised. Since the apartment he shares with the mother is paid for by her and the father is not consistently employed, adequate housing for the child is not assured. We find the child could not be returned to the father’s care at the time of the termination hearing. Because the elements of section 232.116(1)(h) were demonstrated by clear and convincing evidence, we need not address the termination under paragraph (e).

Second, he claims “termination is an outcome of last resort and the State failed to meet its burden of proof concerning the necessity of termination.” He argues:

The court here found that the father’s rights should be terminated because he has done little to meet the dictates of the case plan as set forth above at Issue I. The father acknowledged that he has not done much to meet the case plan requirements at the time of trial. The trial court uses this conclusion as the basis for its finding that the child would apparently be at risk of neglect as defined in Iowa Code 232.2(6)(b) were he to be placed in the custody and care of his father. This finding is contrary to the manifest weight of the evidence and is a finding that constitutes clear error. [The father] has an interest in visiting his child and participating in his life.

The State, in attempting to discern what issue the father is raising, “believes that Father is arguing that the juvenile court should have relied on Iowa Code section 232.116(3) and determined that termination of Father’s parental rights was not `necessary.'” It argues the factors in this subsection are permissive, not mandatory, and the court could order termination despite these factors if it would serve the child’s interest.

The cases cited by the father on this issue, when he mentions the court’s discretion not to terminate, suggest what he is claiming is termination is not in the child’s best interest. The argument quoted at length above, however, seems to be that the finding the child could not safely be returned to his father’s care “is contrary to the manifest weight of the evidence and is a finding that constitutes clear error.” “[T]he State may interfere to prevent possible harm rather than intervene as a remedial measure.” In re C.W., 554 N.W.2d 279, 282 (Iowa Ct.App. 1992). We noted above the clear and convincing evidence supporting a finding the child could not be returned to his father’s care. We also find from the evidence before us that termination of the father’s parental rights will promote the immediate and long-term interest of the child in having a safe, stable, and secure environment to facilitate his physical, mental, and emotional development. See id.; see also Iowa Code § 232.116(2).

AFFIRMED.