IN THE COURT OF APPEALS OF IOWA

No. 20-0620

Filed August 5, 2020

IN THE INTEREST OF K.S.,

Minor Child,

A.S., Father,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Susan Cox, District 

Associate Judge.

A father appeals the termination of his parental rights to his now teenaged 

son. AFFIRMED.

Gina E.V. Burress of Carr Law Firm, P.L.C., Des Moines, for appellant 

father.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney 

General, for appellee State.

Michael Sorci of Youth Law Center, Des Moines, attorney and guardian ad 

litem for minor child.

Considered by Tabor, P.J., and May and Greer, JJ.
2

TABOR, Presiding Judge.

A father, Antonio, challenges the termination of his parental relationship with 

his now thirteen-year-old son, K.S.1 The record shows Antonio has not been a 

meaningful presence in his son’s life so far. And that situation is unlikely to change 

in the near term because Antonio is serving a prison sentence. K.S. has been safe 

and healthy in a placement with his maternal –aunt, Michelle, since April 2018.

Given these facts, and to ensure K.S. soon has permanency, we reject Antonio’s 

challenge and affirm the termination order.2

I. Facts and Prior Proceedings

K.S. was born in 2007 to Amanda and Antonio. The juvenile court’s 

termination order focuses on the trauma K.S. experienced in Amanda’s care. In 

April 2018, the Iowa Department of Human Services (DHS) removed K.S. and his 

three younger half-siblings from the mother’s home. Significantly, Antonio was not 

part of that home.3 At the termination hearing, Antonio testified that he lived with 

 

1 The mother, Amanda, also tried to appeal, but she failed to submit her petition 

on time. Our supreme court dismissed her appeal, so we are ruling only on 

Antonio’s challenge.

2 We review termination-of-parental-rights proceedings de novo. In re A.M., 843 

N.W.2d 100, 110 (Iowa 2014). The juvenile court’s factual findings are not binding, 

but they deserve weighty consideration. See In re M.W., 876 N.W.2d 212, 219 

(Iowa 2016). We will uphold termination if clear and convincing evidence supports 

at least one statutory ground. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). Clear 

and convincing “is the highest evidentiary burden in civil cases. It means there 

must be no serious or substantial doubt about the correctness of a particular 

conclusion drawn from the evidence.” In re M.S., 889 N.W.2d 675, 679 (Iowa Ct. 

App. 2016). We impose this significant burden on the petitioning party “to minimize 

the risk of an erroneous deprivation of the parent’s fundamental liberty interest” in 

raising their child. Id.

3 Antonio has five other children who do not share Amanda as their mother, but 

who are also half-siblings to K.S. Antonio’s parental rights to two of those children 

were terminated in 2016 and to a third in 2019.
3

K.S. when the child was younger but admitted he has not maintained a relationship 

with his son in recent years. 

While Antonio was absent, K.S. suffered in his mother’s care. Beginning in 

2013, the DHS learned of child abuse in Amanda’s home. The reports were 

voluminous and continued coming in until the children’s removal in 2018. They 

included reports of domestic violence between Amanda and her paramour,

Littleton; physical violence against the children; illegal drug use; drug sales; and 

threats at gunpoint. K.S. and his siblings did not attend school regularly. 

When K.S. was in school, he received help from Madison Sweet, an 

elementary school therapist. In April 2018, Sweet sensed K.S. was in imminent 

danger and called the police and the DHS. K.S. told police he did not want to go 

home and revealed that each time the DHS visited his home Amanda beat him. 

The police took K.S. to a shelter for his safety. K.S. identified “Aunt Shell” as a 

safe family member with whom he could stay. Meanwhile, Antonio was in jail.

Authorities transported Antonio from jail to attend the removal hearing in 

May 2018. At the hearing, Antonio said he had not seen K.S. for at least three

years. Antonio was also subject to a five-year no-contact order with Amanda after 

he was convicted of harassment. The court approved K.S.’s removal from the 

home of Amanda and Littleton. Later that summer, the court confirmed K.S.’s 

placement with Amanda’s sister, Michelle. K.S. has continued to live with his aunt 

since then.

After removal, the record revealed the terrible toll his parents’ neglect had 

taken on K.S. In January 2019, psychologist Rachel Pobanz completed an

evaluation for K.S. Dr. Pobanz noted the child’s “significant history of neglect” after 
4

“experiencing and witnessing abuse and other trauma.” She noted that he had 

trust issues and was unsure about forming bonds with other people. K.S. exhibited 

suicidal ideation, desperation, anxiety, and fear. According to his evaluation, K.S. 

had “learned to expect that good things do not last and that family support and 

peer relationships will often end with disappointment and rejection.” Dr. Pobanz 

confirmed K.S. had not seen Antonio in over five years.

Despite his hardships, Dr. Pobanz found K.S. was a “good kid” who 

exhibited compassion and enjoyed playing football. The evaluation also showed 

that K.S. was close to his “Aunt Shell,” his siblings, and his cousins. His home with 

Michelle was a safe, structured, and supportive environment. Dr. Pobanz stressed 

that it was imperative for K.S.’s atmosphere to remain positive. 

The State petitioned to terminate Antonio’s parental relationship with K.S. 

in June 2019. The juvenile court combined the permanency and termination 

hearings, and it heard evidence on three days across the fall of 2019 and January 

2020. On the first day, Antonio testified he did have a relationship his son for a 

“very short time” but had not seen K.S. “in quite some time.”

4

 He explained that 

he had not maintained a connection with K.S. “because me and Amanda lost 

contact.”

Relevant to his fitness as a parent, Antonio admitted a history of 

methamphetamine use. He also testified he had been diagnosed with bipolar 

disorder but was not taking medication for it at the time of the trial. Antonio 

 

4 When Antonio testified in September 2019 he was in the Polk County jail awaiting 

sentencing on several criminal convictions. By the November 2019 hearing, 

Antonio was in prison and participated by telephone.
5

acknowledged he had received a “fair chance” throughout the child-in-need-ofassistance case and that his own choices had led him to his current criminal 

difficulties. As for his son’s future, Antonio did not object to K.S. staying with his 

aunt “if he’s happy there.” He told the juvenile court he would “love to be a part of 

[his] son’s life” but knew his chances were “very, very slim.”

II. Legal Analysis

Termination of parental rights under Iowa Code chapter 232 follows a threestep analysis. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (citing In re P.L., 778 

N.W.2d 33, 39 (Iowa 2010)). 

First, the court must determine if a ground for termination under 

section 232.116(1) has been established. If a ground for termination 

is established, the court must, secondly, apply the best-interest 

framework set out in section 232.116(2) to decide if the grounds for 

termination should result in a termination of parental rights. Third, if 

the statutory best-interest framework supports termination of 

parental rights, the court must consider if any statutory exceptions 

set out in section 232.116(3) should serve to preclude termination of 

parental rights.

Id.

A. Statutory Grounds

In his petition on appeal, Antonio contends the State failed to offer clear and 

convincing evidence on the three statutory grounds for termination—paragraphs

(e), (f), and (g) of Iowa Code section 232.116(1) (2019). When, as here, the 

juvenile court rests its decision on more than one subsection of Iowa Code section 

232.116(1), we may affirm on any ground supported by clear and convincing 

evidence. Id. We will address paragraph (f).
6

That provision requires that:

1. The child is four years of age or older.

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 child’s 

parent for at least twelve of the last eighteen months . . . .

4. There is clear and convincing evidence that at the present time the child 

cannot be returned to the custody of the child’s parents as provided in 

section 232.102.

Iowa Code § 232.116(1)(f). 

Antonio contests only the fourth element. He argues that because the 

record does not show K.S. opposes being reunited with him upon his release from 

prison, his parental rights should be preserved. We are not persuaded by this 

position.

True, our record does not show K.S. expressed opposition to being placed 

with Antonio. But that is likely because K.S. does not have any significant 

relationship with his father. Social worker Randalyn Parker testified K.S. does not 

talk about Antonio except to say that he is in jail. Antonio acknowledged he had 

not maintained a relationship with K.S. Because they are virtually strangers, it 

would be unsound to interpret the son’s lack of opposition as an affirmative desire 

to wait for his father to be available as a parent. We have no doubt that Antonio’s

prolonged absence from K.S.’s life and his incarceration at the time of the 

termination hearing correctly led the juvenile court to conclude K.S. could not be 

placed in his father’s custody.5 We affirm under paragraph (f).

 

5

“At the present time,” as used in section 232.116(1)(f) means “at the time of the 

hearing.” See A.M., 843 N.W.2d at111.
7

B. Statutory Best-Interests Framework

With statutory grounds for termination established, we turn to a 

consideration of the child’s best interests under section 232.116(2). Antonio 

contends that terminating his parental rights is not in K.S.’s best interests because 

it would “forever sever” their bond. 

Under section 232.116(2), we “give primary consideration to the child’s 

safety, to the best placement for furthering” their “long-term nurturing and growth,

and to” their “physical, mental, and emotional condition and needs.” On top of that, 

we consider “whether the child has become integrated into the foster family to the 

extent that the child’s familial identity is with the foster family, and whether the 

foster family is able and willing to permanently integrate the child into the foster

family.” Id. § 232.116(2)(b). 

Our review of the record shows these factors support the termination of 

Antonio’s parental rights. This step will give K.S. the benefit of permanency in his 

placement with “Aunt Shell” and her family. K.S.’s comfort level in his current 

placement is evident from the testimony of DHS worker Kira Cheville. She recalled 

that when she first visited K.S. and his siblings at Michelle’s home, 

all four children were pretty quiet, didn’t have a whole lot to say to

me. Each month, that progressed a little bit more with how much 

they were willing to talk to me. [K.S.] was a big one. He would just 

give me one-word answers . . . . And [he] is joking, laughing, having 

fun with the family while I’m there now. 

Michelle ensures K.S. has regular doctor, dental, and therapy 

appointments. K.S. is learning to trust that adults will take care of him, and he 

feels safe in Michelle’s home. By contrast, the professionals involved in the case 

were unaware of any bond between K.S. and Antonio. Antonio has no real 
8

complaint about K.S. remaining with Michelle if he is happy there. Michelle and 

her husband wish to adopt K.S. and his siblings.

6 Termination removes a barrier 

to K.S.’s adoption. And the professionals all testified that it is imperative for K.S. 

to have permanency in a safe and nurturing home to continue his progress toward 

mental and emotional health. Thus, we find it in K.S.’s best interest to terminate 

Antonio’s parental rights.

C. Permissive Factors

Finally, we consider whether any factor in section 232.116(3) should 

preclude termination of parental rights. See In re A.S., 906 N.W.2d 467, 475 (Iowa 

2018) (reiterating these factors are permissive, not mandatory). 

Antonio argues that terminating his parental rights is unnecessary because 

K.S. is in the care of an aunt. See Iowa Code § 232.116(3)(a) (allowing the court 

to forego termination if a “relative has legal custody of the child”). But while “Aunt 

Shell” has cared for K.S. throughout the CINA proceedings, his “legal custody” has 

remained with the DHS. So this factor does not apply. See A.M., 843 N.W.2d at

113. Even if Michelle did have legal custody, her willingness to fold K.S. into her 

family does not satisfy Antonio’s burden to prove this permissive factor should 

preclude termination. See A.S., 906 N.W.2d at 476. After years of trauma, K.S. 

was desperately in need of stability and knowledge that the rug would not be pulled

out from under him. Plus, the less-certain option of guardianship was not explored

in these termination proceedings. Termination need not be set aside based on 

section 232.116(3)(a).

 

6 The record shows K.S. is a devoted big brother to his siblings.
9

D. More Time for Reunification

Antonio mentions in passing that he should have another six months to 

reunite with K.S. See Iowa Code § 232.104(2)(b). The State contends Antonio 

did not preserve error because he did not raise this argument in the juvenile court. 

We agree Antonio did not preserve error on this argument, so we do not reach it.

AFFIRMED.