IN THE COURT OF APPEALS OF IOWA
No. 18

- 1734 Filed February 20, 2019

IN THE INTEREST OF M.K., Minor Child, J.J., Father, Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Polk County, Romonda D. Belcher , District Associate Judge.

A father appeals an order terminating his parental rights to his two

- year - old

son. AFF IRMED.

Alexandra M. Nelissen, Des Moines, for appellant father. Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney General, for appellee State. ConGarry Williams, Des Moines, guardian ad litem for minor child.

Considered by Potterfield, P.J. , and Tabor and Bower, JJ.2

TABOR , Judge

. A father, Ja’Maur, challenges the juvenile court’s order terminating his parental relationship with his son, M.K., who was born in September 2016. Ja’Maur argues (1) the State did not present clear and convincing proof M.K. could not be safely returned to his care ; (2) the State did not make reasonable efforts to reunite the family; and (3) termination was not in M.K.’s best interests because the child would lose “vita l connections” with biological relatives. After our independent review of the record, 1 we reach the same conclusion as the juvenile court

— despite the State’s reasonable efforts, the record revealed “ongoing concerns about the safety of the child” if ret urned to the father’s custody. See Iowa Code §§ 232.102(12), 232.116(1)(h) (2018). And the evidence supports a finding that termination was in M.K.’s best interests despite the existence of a bond with his father and paternal family

. Se e id. § 232.116(2 ), (3).
I. Facts and Prior Proceedings When M.K. was seven months old, the State filed a petition alleging he was a child in need of assistance (CINA). The petition alleged M.K.’s mother was the victim of domestic violence at the hands of her paramour, Stua rt. 2 The juvenile court adjudicated M.K. as a CINA, and the mother consented to t he Iowa

1 We review child

- welfare actions de novo. In re A.M. , 843 N.W.2d 100, 110 (Iowa 2014). We uphold an order terminating parental rights if the record contains clear and convincing evidence to support the statutory grounds. In re D.W. , 791 N.W.2d 703, 706 (Iowa 2010). Evidence is clear and convincing when it leaves no serious or substantial d oubts as to the correctness of conclusions of law drawn from the evidence. Id. 2 Stuart was initially assumed to be M.K.’s father. In July 2017, the juvenile court learned Stuart was not M.K.’s father and dismissed him from the case. At the same time, t he court ordered a paternity test for Ja’Maur.3

D epartment of Human Services (DHS) removal of M.K. from her custody in May
2017

. In August 2017, paternity testing showed Ja’Maur was M.K.’s father. In late Augus t, Ja’Maur started weekly supervised visits with M.K. According to DHS records, Ja’Maur was inconsistent in his visitation from September 2017 until February 2018. In October 2017 , the DHS reported the existence of allegations of
child sexual abuse again st Ja’Maur

. In 2012, w hile living in Missouri , Ja’Maur was
arrested for sexual contact with a child but pleaded guilty to assault. T he juvenile
court also considered a c hild

- abuse assessment from the summer of 2017 in which an Iowa c hild protection worker found Ja’Maur had indecent contact with a twelve

year - old girl he was babysitting

. Despite that history, Ja’Maur failed to complete a psychosexual evaluation as request ed by the DHS. During the CINA case, Ja’Maur did not pursue t reatment for his mental

health diagnoses and could not maintain stable housing

. A ddition ally, reports from the Family Safety, Risk , and Permanency (FSRP) worker show Ja’Maur was habitually late to his visits with M.K. that spring, though when he arrived h is interactions with his son were warm and appropriate. In June 2018, the State filed a petition to terminate parental rights. In August 2018, the juvenile court held a hearing on the petition. The State offered numerous exhibits in support of terminati on but did not present live testimony. The mother consented to termination of her parental rights. Ja’Maur appeared with
counsel but he did not present any independent evidence. Counsel explained : [Ja’ Maur ] does not believe that his paren tal rights should be terminated, but he also understands that he has not been able to do the things that the court asks of him for financial reasons. He very4
much believes that the department was predisposed against him due to his sexual offender document ation and history. H e clearly has a bond with the child as the court has seen. It’ s my understanding that the hope is relative placement happen. M.K.’s paternal grandmother, aunt , and uncle attended the termination hearing and expressed interest in bein g long

- term placements for the child. The juvenile court
convey ed its appreciation for the family’s support for M.K. but advised , “ [I] f the
court enters an order that terminates the parental rights, this court cannot direct placement of the child. ”
In September, the juvenile court issued its order terminating Ja’ Maur ’ s parental rights under Iowa Code section 232.116(1)(h). The court also foun d termination was in M.K.’s best interests under the standard in section 232.116(2), reasoning, “The child’s saf ety is the Court’s primary consideration. . . . T he father is still at professionally supervised visits and has struggled with satisfying his own needs. ” The court also decided no discretionary factor in section 232.116(3) precluded termination. Ja’Mau r appeals the termination order.
II. Analysis
A. Statutory Ground In his petition on appeal, Ja’ Maur contests the statutory basis for
termination. 3 Termination under Iowa Code section 232

. 116 ( 1 )( h ) requires proof of the se elements:

(1) The child is three years of age or younger.

3 The State contends Ja’Maur did not preserve error on this issue in the juvenile court, because he did not offer any resistance to the State’s evidence and instead focused on his hope M.K. would be placed wit h a relative. We find Ja’Maur ’s appearance at the hearing and the statement by his attorney that he opposed the termination of his parental rights was sufficient to preserve error.5 (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 c hild’ 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 cus tody of the child’ s parents as provided in section 232.102 at the present time. Ja’ Mau r contest s only the last element

— that M.K. could not be returned to his care at the time of the termination hearing

. See A .M. , 843 N.W.2d at 111 (describing “present time” as the time of the termination hearing)

. The State offered clear and convincing evidence to support the court’s finding that M.K. could not be safely placed with Ja’ Maur at the time of the termination hearing. The founded child

- abuse assessment agai nst Ja’ Maur involving indecent contact with a c hild entrusted to his care posed a legitimate cause for concern. Because Ja’Mau r ignored the DHS recommendation that he complete a psychosexual evaluation, h e was unable to move past fully

- supervised visitation with M.K. See In re C.H. , 652 N.W.2d 144, 1 51 (Iowa 2002) (holding parent’s failure to comply with requirements of DHS case permanency plan , including participation in sexual

- offender treatment, show ed his lack of
commitment to reunification). Ja’Maur was also inconsistent in his visitation, frequ ently arriving late and sometimes missing a whole month of interactions. The record also shows Ja’Maur had untreated mental

- health issues and unstable housing. Like the juvenile court , we conclude Ja’Maur did not ma k e enough progress in safe parenting to assume care of M.K.6

B. Reasonable Efforts The DHS is required to “make every reasonable effort t o return the child to the child’ s home as quickly as possible consistent with the best interests of the child.” Iowa Code § 232.102(7); In re C.B., 611 N.W.2d 489, 493 (Iowa 2000). In turn, the parent s must ask for additional services before permanency or termination proceedings if they believe the current services are insufficient

. In re A.A.G. , 708 N.W.2d 85, 91 (Iowa Ct. App. 2005); see also Iow a Code § 232.99(3). Consequently, to preserve a reasonable

- efforts challenge, a parent must have demanded a change in the services. Ja’Maur contends the DHS did not make reasonable efforts to reunite the family because the social worker “made up her mind prior to the permanency hearing” that M.K. could never be placed with him because of the sexual

- abuse allegations. The State argues Ja’Maur did not preserve this claim for appeal because he did not inform the juvenile court during the CINA case that the s ervices were inadequate. We agree Ja’Maur did not preserve error and, therefore, we decline to reach the merits of the claim. See A.A. G. , 708 N.W.2d at 91. C. Best Interests and Closeness of Relationship Ja’Maur alleges termination was not in M.K.’s best interests for two reasons: (1) “ the child will not have the ability to establish important and vital connections with appropriate biological relatives” and (2) “the child will be deprived of unique important cultural opportunities by being placed outside o f an African American7

home.” Ja’Maur also alleges termination would be detrimental to M.K. because of the closeness of their relationship. See Iowa Code § 232.116(3)(c). 4 In determining best interests , we give primary consideration to M.K.’s safety, to t he best placement for furthering his long

- term nurturing and growth, and
to his physical, mental, and emotional condition and needs. See id. § 232.116(2);

s ee also In re P.L

. , 778 N.W.2d 33, 40 (Iowa 2010) (rejecting use of an
unstructured best

- interests test). Applying s ection 232.116(3)(c), we must decide
if clear and convincing evidence shows severing the legal relationship would be detrimental to M.K. due to his close bond with Ja’Maur. See In re A.S ., 906 N.W.2d 467, 475

– 76 (Iowa 2018) (holding burden to prove th is permissive exception rests on the parent once the State satisfies the statutory ground for ter mination ). On the question of best interests, Ja’Ma ur expresses concern about M.K. losing touch with his paternal relatives. But the DHS eff orts to find a permanent placement for M.K. after termination is not before our court in this appeal

. When applying the factors in section 232.116(2), we must consider M.K.’s safety and whether reunification with Ja’Maur would promote the child’s well

- bei ng. Because Ja’maur did not complete a psychosexual evaluation or address his own mental

health issues, the DHS was not able to determine whether he could safely care for M.K., who had been out of his parents’ custody for more than one year. Accordingly, on this record, termination of parental rights and movement toward
permanency i s in M.K.’s best interests.

4 In his petition on appeal, Ja’Maur also cites section 232.116(3)(b) . B u t that provision only applies to children over ten years of age.8 On the question of bonding, t he FSRP worker described pleasant visits between M.K. and his father. But the record does not show their relationship was so close that M.K. will be disadvantaged by the termination or any detriment would outweigh Ja’Maur’s inability to provide a safe hom e for his son. See D.W. , 791 N.W.2d at 709. Section 232.116(3)(c) does not stand in the way of termination.
AFFIRMED.