IN THE COURT OF APPEALS OF IOWA

No. 17-0297

Filed May 3, 2017

IN THE INTEREST OF S.W.,

Minor Child,

E.W., Father,

Appellant,

T.A., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Emmet County, Ann M. Gales, 

District Associate Judge.

The mother and father appeal separately from the termination of their 

parental rights to their minor child. AFFIRMED ON BOTH APPEALS.

Michael H. Johnson of Johnson Law Firm, Spirit Lake, for appellant father.

Bethany J. Verhoef Brands of Brands Law Office, Spirit Lake, for appellant 

mother.

Thomas J. Miller, Attorney General, and David M. Van Compernolle, 

Assistant Attorney General, for appellee State.

Shannon L. Sandy of Sandy Law Firm, P.C., Spirit Lake, guardian ad litem 

for minor child.

Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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POTTERFIELD, Judge.

I. Mother’s Appeal.

The mother filed a petition on appeal stating, “The mother . . . seeks 

reversal of the juvenile court order terminating her parental rights with respect to 

her daughter S.W. only if the Court reverses the juvenile court [order] terminating 

the parental rights of the father.” The mother maintains her consent to the 

termination of her rights was conditioned upon the termination of the father’s 

parental rights. See Iowa Code § 232.116(1)(a) (2016). However, the mother’s 

parental rights were terminated on additional grounds as well. See id.

§ 232.116(1)(g), (h). Yet the mother does not challenge the other statutory

grounds, claim termination is not in S.W.’s best interests, nor ask us to apply a 

permissive factor in subsection (3) to save the parent-child relationship. Without 

further consideration, the termination of the mother’s parental rights to S.W. is 

affirmed. See In re J.J.A., 580 N.W.2d 731, 740 (Iowa 1998) (refusing to 

consider issues that have not been properly raised); see also Iowa Ct. R. 

21.26(e).

II. Father’s Appeal.

The father maintains the State has not proven (1) the statutory grounds for 

termination by clear and convincing evidence and (2) termination is in S.W.’s 

best interests. He also challenges the court’s finding that the State made 

reasonable efforts to reunify him with S.W., and the ruling denying his motion to 

reopen the record. 
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A. Background Facts and Proceedings.

The Iowa Department of Humans Services (DHS) became involved with 

this family almost immediately after S.W.’s birth, in May 2014, because the 

mother’s parental rights to three other children had already been terminated. 

DHS began offering a number of services to the family, and S.W. remained in the 

parents’ care.

At the time of S.W.’s birth, the father was on probation for stealing money 

from his former employer. The father already had an extensive criminal history, 

which started when he was a minor and continued through adulthood. As an 

adult, he had a number of convictions involving the possession of marijuana and 

drug paraphernalia, and he had already spent a period of time in prison following 

convictions for armed robbery and burglary in the second degree. The father’s 

criminal conduct continued, and in November 2014, the father was arrested for 

the domestic assault of the mother. The father was ordered to enroll in a 

batterer’s education program.

In September 2015, the local police obtained a search warrant to search 

the parents’ home. The father had been breaking into a neighbor’s garage to 

take beer and other items, and he had been caught on a camera set up by the 

neighbor. When the police searched the parents’ home, they found the items 

that had been taken from the neighbor, as well as methamphetamine. The 

mother and S.W. were tested for methamphetamine; the mother’s test came 

back negative but S.W.’s was positive. The father refused to be tested. 

On September 16, 2015, S.W. was removed from the parents’ care and 

placed with the same foster family who had adopted the mother’s other three 
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children—S.W.’s half-siblings. After the father was jailed, the mother told DHS 

the father had been physically abusive to her throughout their relationship, which 

started in November 2012. She showed a child protective worker places in the 

family home where the father had punched holes in doors and walls; the father 

had covered the various spots with wall-hangings in order to escape the notice of 

service providers who came to the home. The mother obtained a protective nocontact order and listed herself and S.W. as protected parties; the father 

consented to the entry of the order. 

The father reached a plea deal with the State. As part of the plea, the 

charges from the November 2014 domestic abuse were dropped, as well as all 

drugs charges stemming from the search. The father pled guilty to two counts of 

burglary, and he was sentenced to a term of incarceration not to exceed five 

years. His discharge date for the full term of incarceration was February 20, 

2018.

The termination hearing was held on two dates: May 31 and June 7, 2016. 

The father participated in the hearing from prison by way of telephone and 

Skype. At the hearing, the father testified he had a parole hearing scheduled for 

August 2016, and he expected to be paroled. The father denied ever being 

physically abusive toward the mother, in spite of the testimony of the father’s 

step-grandfather who testified he twice witnessed the father being physically 

abusive—once “[the father] had [the mother] by the throat, was hitting her in the 

shoulder in [the grandfather’s garage],” and another time the grandfather had to 

pull the father off the mother in the basement. Additionally, the father had not 

taken an anger management or batterer’s education class. 
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Because of the ongoing no-contact order, the father did not have visits or 

contact with the S.W. from the time he was arrested in mid-September 2015 

through the termination hearing in June 2016, except for a one-time modification 

to the order, which allowed DHS to bring S.W. to the prison for a visit with the 

father on S.W.’s second birthday in May 2016. While the father thought the visit 

went really well, the foster mother testified that she did not believe S.W. 

recognized the father at the time of the visit and S.W. had not mentioned him 

again after. The father was in prison approximately three and one-half hours 

away from the foster family’s home, so the trip required S.W. to spend a long 

period of time in the car. Additionally, as the father testified, at the time of the 

termination hearing, S.W. was approximately twenty-five months old, and the 

father had been incarcerated for a combined total of almost one year of that time. 

The foster mother testified S.W. called her and her husband “mommy” and 

“daddy” and she was well-bonded with her half-siblings. The foster mother

stated S.W. was very scared of men in general when she first came to live with 

them but had since become more comfortable with them. S.W. also had health 

issues at the time she was removed from her parents’ care—her baby teeth were 

rotting and she had hearing issues that were causing communication delays due 

to a history of ear infections that had not been fully treated. 

On January 5, 2017, the father filed a motion to reopen the evidentiary 

record. In it, he claimed his circumstances had “materially changed since the 

date of the Court’s last hearing” and indicated he was to be discharged from a 

residential treatment facility on January 9. The State and the guardian ad litem 

resisted the father’s motion.
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The court filed its written order in the termination-of-parental-rights 

proceedings on February 10, 2017. In it, the court denied the father’s request to 

reopen the record, noting permanency for S.W. “has been delayed far too long 

and to reopen the record will result in even longer delays.” The court then 

terminated the father’s parental rights pursuant to Iowa Code section 

232.116(1)(e) and (h).1

The father appeals.

B. Standard of Review.

“We review proceedings to terminate parental rights de novo.” In re A.B., 

815 N.W.2d 764, 773 (Iowa 2012).

We review the court’s decision not to reopen the record for additional 

evidence for an abuse of discretion. See In re J.R.H., 358 N.W.2d 311, 318 

(Iowa 1984) (“In a trial to the court, the court has broad discretion to reopen the 

evidence . . . .”). 

C. Discussion.

While the father nominally challenges the court’s ruling under Iowa Code 

section 232.116(1)(h), he does not argue S.W. could have been returned to his 

care at the time of the termination hearing—when he was in prison. See Iowa 

Code § 232.116(1)(h)(4); In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (“At the 

time of the termination hearing, there was clear and convincing evidence the 

 

1

In its written order, under the section “order, judgment, and decree,” the court cited to 

section 232.116(e) rather than 232.116(1)(e). The father maintains the court’s order 

“purports to terminate a parent’s rights under an inappropriate section of the Iowa Code” 

and “is defective.” After reviewing the order in its entirety, we note that court referred to 

the section incorrectly only one time; it referred to the section correctly nine times, 

including setting out the language of the section and discussing it in detail. We are not 

concerned by the one typographical error in the court’s order.
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children could not be returned to the care of [the parent].”); see also A.B., 815 

N.W.2d at 774 (“When the juvenile court terminated parental rights on more than 

one statutory ground, we may affirm the juvenile court’s order on any ground we 

find supported by the record.”). Rather, he claims he should have been given a 

six-month extension to work toward reunification. 

However, a request for a six-month extension can only be granted if the 

court can make “the determination 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.” 

See Iowa Code § 232.104(2)(b). At the time of the termination hearing, the court 

could not find the need for removal would no longer exist in six months. First, 

even if the father’s parole hearing went as well as he anticipated, there was 

testimony the father would not actually be released until he finished his current 

drug-rehabilitation program, which was not scheduled to be completed until 

October or November 2016. If he was not granted parole, the father’s full 

discharge date was not until February 2018. Additionally, even if he was 

released within six months of the termination hearing, the father had not 

completed anger management or batterer’s education; in fact, he still denied he 

had perpetrated domestic violence against the mother in spite of strong evidence 

supporting her claims. S.W. had spent nearly half of her life away from the father 

due to his frequent incarcerations, and she had only seen him once in the nine 

months preceding the hearing. Thus, even if S.W. could be returned to the 

father’s care, the transition would have to occur gradually—a transition that could 

not begin while there was a no-contact order in place, and while the father was 

incarcerated three and one-half hours away. 
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The father claims the State did not make reasonable efforts to reunify him 

with S.W. The father claims that because he spent a number of months in prison 

without access to services DHS and the court required him to complete and 

because he was not afforded visits with S.W. while in prison, his parental rights 

should not be terminated. The imprisonment of a parent does not absolve DHS 

of its statutory mandate to provide reunification services. In re S.J., 620 N.W.2d 

522, 525 (Iowa Ct. App. 2000). Still, “[t]he services required to be supplied an 

incarcerated parent, as with any other parent, are only those that are reasonable 

under the circumstances.” Id. at 525. Here, DHS originally anticipated the father 

could and would enroll in the necessary classes—batterer’s education, anger 

management, and drug rehabilitation—through the prison. Once it became 

apparent the father either was not eligible for those classes (because the plea 

agreement dismissed all drug- and domestic-violence-related charges) or the 

prison did not offer the classes, DHS began discussions with the prison to 

determine how the father could receive the services while incarcerated. This 

took some time; personnel from both DHS and the prison testified this was not a 

typical arrangement, and there was some necessary back-and-forth to determine 

how DHS could provide services within the rules and framework set by the 

prison. Additionally, DHS testified it could not facilitate visits between S.W. and 

the father due to the no-contact order in place, which named S.W. as a protected 

party. At the time of the hearing, the father had not attempted to have the order 

dismissed or modified, other than for the one-time visit that took place in May 

2016. Even if the no-contact order had not been in place, S.W. was two years 

old and resided a number of hours from the father. The foster mother reported 
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S.W. became car sick and vomited during the trip to see the father, and the 

seven or eight hour road trip was “a long time for [S.W.] to be in the car”—

especially in relation to the length of the visit, which was one and one half hours. 

We agree with the district court that the efforts made by DHS were reasonable in 

these circumstances.

Although the father maintains termination of his parental rights is not in 

S.W.’s best interests, we disagree. S.W. was well-bonded with her foster family 

and they were ready and willing to adopt her. Being adopted by the foster family 

would allow S.W. to maintain a relationship with her biological siblings. 

Additionally, the foster family had allowed the mother to remain part of her other 

children’s lives after adopting them, and they testified they were willing to do the 

same with S.W. and the mother and father—so long as certain expectations 

regarding safety and respect of S.W.’s new family were met. For all the reasons 

already considered, termination of the father’s parental rights is in S.W.’s best 

interests.2 

Finally, the district court did not abuse its discretion in refusing to reopen 

the record in January 2017—approximately seven months after the termination 

hearing. Even if the court reopened the record and verified the father’s claims 

from his motion—that he was to be discharged, had obtained employment and 

housing, and had completed an anger management course—S.W. could not then 

 

2 The father has not argued, and we have not found, that any of the permissive factors in 

section 232.116(3) should be applied in this circumstance. See In re A.M., 843 N.W.2d 

100, 111 (Iowa 2014) (stating factors are permissive, not mandatory); see also In re P.L., 

778 N.W.2d 33, 39 (Iowa 2010) (“Finally, before terminating a parent’s parental rights, 

the court must consider if any of the exceptions contained in section 232.116(3) allow 

the court not to terminate.”). 
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be returned to the father. At that point, S.W. had been in the care of her foster 

family for approximately half of her life and had little contact with the father for the 

prior sixteen months. Giving the father even more time to work toward 

reunification is not contemplated by the statute, and S.W. deserved permanency. 

See C.B., 611 N.W.2d at 495 (“Once the limitation period lapses, termination 

proceedings must be view with a sense of urgency.”); see also In re J.E., 723 

N.W.2d 793, 801 (Iowa 2006) (Cady, J., concurring specially) (noting the 

“defining elements in a chid’s best interest” are the child’s safety and her “need 

for a permanent home”).

We affirm the termination of the father’s parental rights.

AFFIRMED ON BOTH APPEALS.