IN THE COURT OF APPEALS OF IOWA

No. 14-0981

Filed July 22, 2015

IN THE INTEREST OF C.Y.-E.,

Minor Child,

C.E., Father,

Appellant,

________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Thomas J. 

Straka, Associate Juvenile Judge.

A father appeals the termination of his parental rights. AFFIRMED.

Christopher M. Soppe, Dubuque, for appellant father.

Daniel McClean, of McClean & Heavens Law Offices, Dyersville, for 

appellant intervenor.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant 

Attorney General, Ralph Potter, County Attorney, and Joshua A. Vander Ploeg, 

Assistant County Attorney, for appellee State.

Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, attorney and 

guardian ad litem for minor child.

Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DOYLE, J.

A father appeals the termination of his parental rights. We affirm.

I. Background Facts and Proceedings.

C.E. is the father and S.Y. is the mother of C.Y.-E., born in March 2012. 

The child’s parents both have a history of substance abuse. The child tested 

positive for oxycodone exposure at birth. At that time, the father was married to 

N.E. Because the child’s mother was scheduled to serve a jail sentence shortly 

after the child’s birth, the mother arranged that the child be cared for by the father 

and N.E.

The father and N.E. married in 2007, and they had had marital problems 

for some time. Prior to their marriage, the father and N.E. each had two founded 

child-abuse reports in 2004 concerning another child for denial of critical care for 

failure to provide proper supervision and presence of illegal drugs. The couple 

tragically lost another child in an accident in 2011.

In June 2012, N.E. kicked the father out of their home. The father took the 

child with him, and concerns were conveyed to the Iowa Department of Human 

Services (DHS) regarding the father’s ability to care for the child safely. It was 

reported the father had not given the child his medication as needed, had not fed 

the child properly, and had driven with the child on his lap, among other things. 

The DHS case worker noted the father “would use [the child] to get to [N.E.] so 

that she would allow him back in the home. He knew that [N.E.] wanted to be a 

part of [the child’s] life and would use that to get what he wanted.” Voluntary 

services were offered to the family, and eventually the child and the father 

resumed living with N.E.
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In February 2013, N.E. served the father divorce papers, and the father 

“responded poorly to this and threatened to harm himself,” barricading himself in 

the bathroom with a gun. N.E. heard what sounded like a shotgun being loaded, 

and she got out of the home and called 9-1-1; the child remained in the home. 

After arriving, law enforcement officials attempted to talk the father into coming 

outside for thirty to forty minutes with no response. The officers then went into 

the home to locate the father to bring him and the child out safely, but the father 

had somehow fled the home, leaving the child alone in the house. While 

searching for the father in the home, officers found methamphetamine precursors 

and drug paraphernalia in the basement. The father returned home and was 

arrested and charged with child endangerment and possession of precursors. A 

no-contact order between the father and the child was entered thereafter. The 

child remained in N.E.’s care, but because the father was unable to care for the 

child while N.E. was at work, N.E. had the father’s relatives care for the child 

when she was unable to do so.

Both the father and the child’s hair tested positive for methamphetamine 

thereafter. N.E.’s drug tests were negative for illegal substances. The DHS case 

worker met with the father to discuss what plans he wanted to make for the child, 

“as there was still a no-contact order in place and [N.E.] was wanting to move 

forward with the divorce.” N.E. joined the discussion, and though N.E. had been 

the child’s primary caregiver since the child’s birth, the father

talked about having [the child] go and stay with [his relatives], so he 

could move back into the house with [N.E.]. He had stayed there 

two other nights when [the child] was with [his relatives]. [N.E.] said 

she didn’t want [the father] at the house, but wanted to be part of 

[the child’s] life. [N.E.] acknowledged that [the father] would use 
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[the child] as a “pawn” to get what he wanted because he knew 

how attached [N.E.] is to [the child]. [The father] said if [N.E.] was 

going to go ahead with the divorce, he should leave [the child] with 

[his relatives]. The conversation did not go well. [N.E.] was 

emotional and upset that [the father] was talking about moving [the 

child] just because he wanted to hurt her. [The father] got upset 

with [N.E.] wanting to divorce him and losing his family. . . .

[The father] did agree to sign a safety plan to agree to leave 

[the child] in the care of [his relatives] until . . . [the relatives] could 

arrange visitation with [N.E.].

The child has remained in the relatives’ care since that time.

In March 2013, the State filed a petition asserting the child was a child in 

need of assistance (CINA), and a pre-hearing conference was set for the 

following month. The DHS case worker and service provider both noted the 

father went “back and forth about identifying [N.E.] as a caregiver for [the child].” 

At times he supported N.E. having visitation with the child, including overnight 

visits, only to change his mind and refuse N.E. visits with the child. Just before 

the pre-hearing conference, the DHS case worker reported the father indicated 

he wanted the child “to have contact with [N.E.], but not regular contact.” Though 

the service provider discussed with the father the role N.E. had played in the 

child’s life “and how no contact or inconsistent contact could negatively impact 

[the child],” the father “did not appear to care.” Service providers had pointed out 

to the father that he had “a history of using [the child] to get to [N.E.] or get what 

he want[ed] from [N.E.],” but the father “typically ha[d] no response.” Since N.E. 

was not the child’s biological mother and the father did not want N.E. to have 

interactions with the child at that time, the DHS stopped visits between N.E. and 

the child.
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Following the prehearing conference, the juvenile court entered a prehearing order directing that the child “be removed from parental custody and 

placed in the care, custody, and control of the [DHS] for appropriate . . . relative 

placement.” The court also determined N.E. should have visitation with the child, 

and visits between N.E. and the child resumed.

The child was adjudicated a CINA in May 2013, and at the time of the 

adjudication hearing, both the mother and the father were incarcerated. The 

father remained in jail until the end of July 2013. While he was in jail and after 

his release, the father was offered services for reunification. However, by 

September 2013, the father was “on the run” with a warrant out for his arrest and 

federal charges pending. Between the time of his release and mid-September, 

he had had only two interactions with the child through the service provider, and 

though he could have gone to the relative caregivers’ home to have additional 

visits with the child, he did not. Around the same time period, N.E. and the 

father’s divorce was finalized.

In December 2013, the DHS case worker recommended the father’s 

parental rights be terminated. The case worker explained she did “not feel that 

[the father] could take care of himself, let alone a child. There [were] significant 

mental health issues as well as substance abuse issues that [had] not been 

addressed.” Thereafter, the State in January 2014 filed a petition seeking 

termination of the father’s and mother’s parental rights. The child’s guardian ad 

litem also recommended termination of the parents’ parental rights, and the 

county foster care review board supported the recommendation.
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Hearing on the State’s petition was held in May 2014. At that time, the 

father was again incarcerated, awaiting sentencing after having pled guilty to two 

counts of possession of precursors with intent to manufacture methamphetamine 

and one count of manufacturing methamphetamine. The father testified that 

pursuant to his plea agreement, the State was recommending he be placed in a 

residential correctional facility, but he would be requesting the sentencing court 

grant him a deferred judgment. The father testified that the best case scenario if 

he was placed at the facility was his release in three months, and even with the 

State’s recommendation, the court could still impose a prison sentence of up to 

twenty years. The father admitted that since the case began in February 2013, 

he had only had three or four visits with the child and had not seen the child in 

seven months. Nonetheless, he testified he had no concerns if the child was 

placed in the care of N.E. or the mother, who was living with N.E. at that time. 

He believed either would allow him to see the child “once he [got] through [his] 

legal issues.”

Following the hearing, the juvenile court entered its order terminating the 

parents’ parental rights. The father now appeals.1 We review his claims de 

novo. See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014).

 

1 We note that on June 23, 2015, the Iowa Supreme Court filed an order 

concerning this case and N.E.’s related appeals in appellate case numbers 14-0554 and

14-1419, explaining:

The father filed a notice of appeal and a petition on appeal 

following the termination of his parental rights. [N.E.] also filed a notice of 

appeal and petition on appeal in the same appellate case number. This 

court determined [N.E.’s] appeal was interlocutory[, renumbered her 

interlocutory appeal as number 14-0554,] and denied [N.E.’s] request [for 

interlocutory] appeal. Based on that order the clerk of the supreme court 

issued procedendo and this entire appeal was closed by the appellate 

clerk’s office. A review of this file indicates that the procedendo should 
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II. Discussion.

In determining whether parental rights should be terminated under chapter 

232 (2013), the juvenile court “follows a three-step analysis.” See In re D.W.,

791 N.W.2d 703, 706 (Iowa 2010). Step one requires the court to “determine if a 

ground for termination under section 232.116(1) has been established” by the 

State. Id. If the juvenile court finds grounds for termination, the court moves to 

the second step of the analysis: deciding if the grounds for termination should 

result in a termination of parental rights under the best-interest framework set out 

in section 232.116(2). Id. at 706-07. In making this determination, the primary 

considerations are the children’s safety, their best placement for furthering their

long-term nurturing and growth, and their physical, mental, and emotional 

conditions and needs. Iowa Code § 232.116(2) (2013). Even if the juvenile court 

finds “the statutory best-interest framework supports termination of parental 

rights,” the court must proceed to the third and final step: considering “if any 

statutory exceptions set out in section 232.116(3) should serve to preclude 

termination of parental rights.” D.W., 791 N.W.2d at 707.

On appeal, the father asserts the State failed to prove the grounds for 

termination of his parental rights, and termination of his parental rights was not in 

the child’s best interests, among other things. We address his arguments in turn.

 

only have applied to [N.E.’s] attempt [for interlocutory appeal in number 

14-0554] filed on June 13, 2014. The court finds the father’s appeal from 

the termination of his parental rights is still pending before this court. This 

appeal shall be transferred immediately to the court of appeals for 

disposition.

The father’s case was then transferred to this court the same day.
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A. Grounds for Termination.

The grounds for termination must be proved by clear and convincing 

evidence. Iowa Code § 232.116(1); see also D.W., 791 N.W.2d at 706. When 

the juvenile court terminates parental rights on more than one statutory ground, 

we may affirm on any ground we find supported by the record. D.W., 791 

N.W.2d at 707; In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct. App. 1995). Here, 

the juvenile court found the State proved the grounds under Iowa Code 

subsection 232.116(1) paragraph (e) and (h). We choose to address the latter 

ground.

Iowa Code section 232.116(1)(h) provides parental rights may be 

terminated if the court finds by clear and convincing evidence that (1) the child is 

three years of age or younger, (2) has been adjudicated a CINA, (3) has been 

removed from the physical custody of his parents for at least six months of the 

last twelve months, and (4) there is clear and convincing evidence that the child 

cannot be returned to the custody of the child’s parents at the present time. The 

father does not challenge that the first two elements were proved. However, he 

argues the statutory use of the word “parents” in Iowa Code section 232.116(1), 

in its plural form, requires removal of the child from all of the child’s parents.2 

Because, as his argument goes, the child was never removed from N.E.’s 

 

2 Though Iowa Code section 232.116(1) subsections (e) and (h) both use the 

word “parents,” the father only challenges subsection (e)’s use of the word. Because we 

need only affirm on one ground, we could ignore his argument as to subsection (e) and 

address only his explicit challenge to subsection (h), that the child could have been 

returned to his care. See R.R.K., 544 N.W.2d at 276; see also Hyler v. Garner, 548 

N.W.2d 864, 870 (Iowa 1996) (“[O]ur review is confined to those propositions relied upon 

by the appellant for reversal on appeal”); In re D.S., 563 N.W.2d 12, 15 (Iowa Ct. App. 

1997) (finding principles of res judicata barred a father who failed to appeal a juvenile 

court order from raising the challenge on appeal). Nevertheless, we choose to address 

it because the argument lacks merit.
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custody, the State did not prove element three. Additionally, he argues the State 

failed to prove the child could not be returned to his custody. Upon our de novo 

review, we find the State met its burden.

Iowa Code section 232.2(39) defines the word “parent” as a biological or 

adoptive parent.3 It does not include the word stepparent, which is mentioned in 

a separate subsection under the definition of “custodian,” whose rights are 

“subject to any residual rights and duties remaining in a parent or guardian.” See 

Iowa Code § 232.2(11)(a)-(c); see also In re J.C., 857 N.W.2d 495, 501, 504 

(Iowa 2014). Here, the State established the child was removed from the 

custody of his biological parents within the statutory time frame. We find that it 

met its burden as to element three.

Additionally, the father asserts that “[w]ithin a few days after the 

termination hearing [he] was released from custody.” However, this assertion is 

outside the closed record, and there was no evidence at the hearing that the 

father would be immediately released. Therefore, we cannot consider it on 

appeal. See State v. Weiland, 202 N.W.2d 67, 69 (Iowa 1972) (noting appellate 

courts cannot consider facts that are outside of the record). Regardless, the 

father did nothing to work toward reunification with the child during the case. He 

excuses his lack of participation during the proceedings because he was 

incarcerated, and he further declares “[t]here was nothing in the record that the 

child could not be returned to [his] care.” While conviction of a crime and 

resulting imprisonment do not necessarily result in termination of parental rights, 

 

3 See our opinion filed today in the related case, In re C.Y.-E., No. 14-1419 (July 

22, 2015), concerning N.E.’s appeal following the post-termination-placement hearing.
10

incarceration cannot justify a parent’s lack of relationship with the child. See In 

re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993). Here, the father’s incarceration is a 

result of his own actions, and he did nothing in the short amounts of time during 

the case when he was not incarcerated to evidence that he had any interest in 

addressing his substance abuse or mental health issues or, frankly, parenting the 

child. He had not even seen the child in at least seven months at the time of the 

termination-of-parental-rights hearing, and the father was incarcerated at the time 

of the hearing. There is no question the child could not be safely returned to the 

father’s care at the time of the termination hearing. Accordingly, we agree with 

the juvenile court that the State proved the ground for termination of parental 

rights found in section 232.116(1)(h).

B. Best Interests and Other Considerations.

The father’s remaining arguments all concern N.E. The father asserts 

termination of his parental rights was not in the child’s best interests because the 

child could be placed with N.E., arguing there was a sibling bond between the 

child and N.E.’s children. He weaves his argument into a claim that the juvenile 

court erred in finding “no consequential factors weigh[ed] against termination,” 

claiming that at the time of the termination-of-parental-rights hearing, the child 

was in the custody of two relatives.

At the time of the termination-of-parental-rights hearing, the child had 

been in the care of the fathers’ relatives for sixteen months. Moreover, it was at 

the father’s request, perhaps against the child’s best interests at that time, that 

the child was placed with his relatives because he was mad at N.E., even though 

at that time she had been the child’s primary caregiver. The father’s behavior 
11

throughout the case evidences his lack of insight into the needs of a young child 

and his unwillingness to put someone else’s needs before his own. At the time of 

the termination hearing, the child had been thriving in the care of the fathers’ 

relatives and was in need of permanency. Though it is unclear if the child is 

bonded with his stepsiblings, there is no question he was bonded with N.E. 

However, he was also bonded with the fathers’ relatives and their children. 

Regardless, neither relationship concerns the father’s parental rights. We agree 

with the juvenile court that termination of the father’s parental rights is in the 

child’s best interests.

Finally, the father maintains it was error to terminate his parental rights 

“because the child was in the custody of a relative,” citing Iowa Code section 

232.116(3)(a). He maintains the child was in the custody of both N.E. and his 

relatives. This is factually incorrect. As of April 2013, the juvenile court removed 

the child “from parental custody and placed [the child] in the care, custody, and 

control of the [DHS] for appropriate . . . relative placement.” (Emphasis added.) 

This means custody was placed with the DHS, not a relative. See Iowa Code

§ 232.116(3)(a); see also A.M., 843 N.W.2d at 112, 113 (noting that although 

A.M. was in the care of her grandparents, she was not in their legal custody 

making section 232.116(3)(a) inapplicable). Consequently, section 232.116(3)(a) 

is inapplicable in the present case. See id.

III. Conclusion.

For the foregoing reasons, we affirm the juvenile court’s ruling terminating 

the father’s parental rights.

AFFIRMED.