IN THE COURT OF APPEALS OF IOWA

                                      No. 19-1003
                               Filed September 11, 2019


IN THE INTEREST OF W.H. and G.H.,
Minor Children,

S.H., Father,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Stephen A. Owen,

District Associate Judge.



      The father appeals the termination of his parental rights to his two children.

AFFIRMED.



      Christopher A. Clausen of Clausen Law Office, Ames, for appellant father.

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

General, for appellee State.

      Shannon M. Leighty of the Public Defender’s Office, Nevada, attorney and

guardian ad litem for minor children.



      Considered by Tabor, P.J., and Mullins and May, JJ.
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MAY, Judge.

       A father appeals the termination of his parental rights to two children, G.H.

and W.H. We affirm.

       G.H. was born in August 2013. In November 2016, the Iowa Department of

Human Services (DHS) became involved with this family due to allegations the

mother and father were under the influence of drugs while caring for G.H. G.H.

was removed from the parents’ custody but later returned to the mother.

       In March 2017, W.H. was born. Later that year, both children were removed

due to the parents’ mental-health and substance-abuse issues. The children were

briefly returned to the father’s custody in September 2018. However, they were

removed after the father’s arrest for domestic assault against his girlfriend.

       The father continued to struggle with substance abuse. He tested positive

for drugs on several occasions, missed multiple tests, and eventually admitted to

using marijuana and “overusing” prescription amphetamine.

       His involvement with the children dissipated. Between January and July

2019, the father only had one visitation with the children, despite being offered

twelve other visitations.

       In July 2019, the juvenile court held a termination hearing. The father

conceded he lacked his own stable housing. He agreed he was not in a position

to take custody of the children.

       Ultimately, the juvenile court terminated the mother and father’s rights to

both children pursuant to Iowa Code section 232.116(1)(e), (f), and (h) (2018). The
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father now appeals.1 He does not dispute statutory grounds for termination exist

under Iowa Code section 232.116(1).          He contends, however, termination is

inappropriate under Iowa Code section 232.116(3). He also raises concerns about

the children’s continued access to their cultural heritage. Our review is de novo.

In re M.W., 876 N.W.2d 212, 219 (Iowa 2016).

       The father raises two arguments concerning section 232.116(3). First, he

contends termination is inappropriate because the children are placed with a

relative. Under Iowa Code section 232.116(3)(a), a court may decline to terminate

parental rights if “[a] relative has legal custody of the child.” (Emphasis added.)

Those facts do not exist here. Although DHS has placed the children in the

physical care of the maternal grandmother, no relative has “legal custody.” In its

termination order, the juvenile court ordered that DHS “shall continue to act as

custodian of the children.” Section 232.116(3)(a) does not apply. See In re B.W.,

No. 19-0602, 2019 WL 2375255, at *4 (Iowa Ct. App. June 5, 2019) (declining to

apply section 232.116(3)(a) because child remained in DHS’s legal custody while

placed in a relative’s physical care).

       The father also argues termination is precluded by his strong bond with the

children. Under Iowa Code section 232.116(3)(c), a court may decline to terminate

parental rights if “[t]here is clear and convincing evidence that the termination

would be detrimental to the child at the time due to the closeness of the parent-

child relationship.” Here, there is certainly evidence the children acknowledge the

father is their parent. Based on our review, however, we agree with the juvenile


1
  The mother withdrew her notice of appeal.     Therefore, only the father’s appeal is
addressed in this opinion.
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court that the father has not “developed or maintained the kind of deep and abiding

parent-child bond that leads the court to conclude that termination of parental rights

would have a detrimental effect on either child.” Section 232.116(3)(c) also does

not apply.

       Finally, the father raises certain racial and cultural concerns. The father

self-identifies as African-American and describes the children as biracial. He

contends termination of his parental rights will foreclose continued contact “for the

children with their ethnic and cultural background” through their father and his

family. He suggests we should weigh these concerns much as we would in a case

involving the Indian Child Welfare Act (ICWA).2

       We disagree. ICWA only applies to “child custody proceedings involving an

Indian child.” Iowa Code § 232B.4(1). We cannot expand ICWA by analogy, as

the father proposes. “It is not the function of courts to legislate and [we] are

constitutionally prohibited from doing so.” Hansen v. Haugh, 149 N.W.2d 169, 241

(Iowa 1967) (citing Iowa Const. art. III. § 1).3

       Instead, our analysis of the children’s best interests is governed by Iowa

Code section 232.116(2). In re P.L., 778 N.W.2d 33, 37 (Iowa 2010) (noting “a



2
  The Federal ICWA was passed in 1979 and provided “minimum Federal standards for
the removal of Indian children from their families and the placement of such children in
foster or adoptive homes.” In re J.L., 779 N.W.2d 481, 485 (Iowa Ct. App. 2009) (quoting
In re N.N.E., 752 N.W.2d 1, 6–7 (Iowa 2008)). Later, Iowa passed its own ICWA with the
purpose of “clarify[ing] state policies and procedures regarding implementation of the
federal [ICWA].” See Iowa Code § 232B.2.
3
   The father also suggests this court should “consider the children’s continued contact
with their racial and ethnic heritage in assigning placement.” (Emphasis added.) We
disagree. Although we acknowledge the maternal grandmother’s interest in adopting the
children in this opinion, the children’s permanent placement following termination is not
before us in this appeal. In re M.K., No. 18-1734, 2019 WL 719172, at *3 (Iowa Ct. App.
Feb. 20, 2019).
                                           5


court should base its best-interest determination on the legislative requirements

contained in section 232.116(2), rather than upon the court’s own value system”).

It states, in pertinent part:

               In considering whether to terminate the rights of a parent . . . ,
       the court shall give primary consideration to the child[ren]’s safety, to
       the best placement for furthering the long-term nurturing and growth
       of the child[ren], and to the physical, mental, and emotional condition
       and needs of the child[ren].

Iowa Code § 232.116(2).            By enacting these words, our legislature has

“significantly, and not too subtly, identified a child’s safety and his or her need for

a permanent home as the defining elements in a child’s best interests.” In re J.E.,

723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., specially concurring); see also M.K.,

2019 WL 719172, at *3 (addressing a father’s concern that the child would lose

touch with African-American relatives; noting “[w]hen applying the factors in

section 232.116(2), we must consider [the child’s] safety and whether reunification

with [the father] would promote the child’s well-being”); In re B.M., No. 99-1455,

2000 WL 504734, at *4 (Iowa Ct. App. Apr. 28, 2000) (addressing an assertion that

the juvenile court “erred in underestimating the importance of [the child]’s exposure

to the African-American heritage since she was a mixed race child” and noting the

juvenile court was correct in determining the child’s immediate needs required

termination of parental rights).

       Applying these principles here, we share the juvenile court’s concerns

regarding the father’s history of domestic violence; his continued struggles with

substance-abuse and mental-health issues; and his lack of stability.                As he

acknowledged at the termination hearing, he was not prepared to take custody of

the children. Conversely, termination will free the children to obtain permanency
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through adoption by their maternal grandmother. As the juvenile court noted, she

has “provided the children with a safe and stable home since September 2018.”

In short, termination will provide the children both safety and permanency,

“defining elements” under the best-interests analysis. J.E., 723 N.W.2d at 802

(Cady, J., specially concurring).

       Moreover, the record does not suggest termination will preclude contact

between the children and their father’s family. The children’s DHS social worker

testified that, even without her direction, the maternal grandmother has continued

to allowed visits with the paternal relatives. “[T]hey have a regular schedule, and

the children go to church with [the father’s] family, and that is without any direction

from me,” she testified.

       We are satisfied termination is in the children’s best interests.

       AFFIRMED

       Mullins, J., concurs; Tabor, P.J., concurs specially.
                                            7


TABOR, Presiding Judge (concurring specially)

       Like the majority, I am not prepared to delay permanency for these children

based on the father’s argument that the factors in Iowa Code section 232.116(3)(a)

and (c) weigh against termination of his parental rights. Like the majority, I am

concerned by the father’s dwindling participation in visits with his children. I also

agree with the majority that it is not our job to legislate.

       But I write separately to emphasize that courts do have a role in overseeing

the State’s reasonable efforts to reunify families. See In re L.T., 924 N.W.2d 521,

529–30 (Iowa 2019) (Cady, C.J., concurring specially) (reiterating the department

of human services’s (DHS) responsibility “to deliver reasonable efforts toward

reunification where statutorily required or otherwise in the child’s best interests”).

And scholars have persuasively argued reasonable efforts require culturally

competent services. See Nell Clement, Do “Reasonable Efforts” Require Cultural

Competence? The Importance of Culturally Competent Reunification Services in

the California Child Welfare System, 5 Hastings Race & Poverty L.J. 397, 422

(2008). So I would not as quickly dismiss the importance of ethnic and cultural

contact in considering the children’s best interests throughout the child-in-need-of-

assistance and termination proceedings.

       As the father suggests, marked similarities exist between African-American

children and families in today’s child welfare system and Native American children

and families who are protected by Indian Child Welfare Act. An expert in the field

summarized the comparison:
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       African-American children are disproportionality overrepresented in
       the child welfare and foster care system. While this has a direct
       impact on the health and welfare of African-American children, it also
       necessarily has a grave impact on the existence and state of African-
       American families. The impact is similar to the state of Indian
       children and Indian families prior to the passage of the Indian Child
       Welfare Act, where the rate of outplacements for Native American
       children far outpaced the number of Native American children in the
       general population. Currently African-American children comprise
       less than one-fifth of the nation’s children, yet they represent nearly
       half of the national foster care population.

Stephanie Smith Ledesma, The Vanishing of the African-American Family:

“Reasonable Efforts” and Its Connection to the Disproportionality of the Child

Welfare System, 9 Charleston L. Rev. 29, 34 (2014); see also Cynthia G. Hawkins-

León, The Indian Child Welfare Act and the African American Tribe: Facing the

Adoption Crisis, 36 Brandeis J. Fam. L. 201, 213 (1997) (“The figures for displaced

or outplaced African American children are almost as high as those figures

reported for Native American children in the 1970’s.”).

       The overrepresentation data in Iowa is just as distressing as the national

numbers. The rate of African-American children entering foster care in Iowa in

2017 was 1.92 times greater than their proportion of our state’s general

population.4

       Here, the father does not argue the DHS failed to make reasonable efforts

toward reunification, and the children’s placement is not before us. Thus, I agree



4
  Puzzanchera, C. and Taylor, M., Disproportionality Rates for Children of Color in Foster
Care Dashboard (National Council of Juvenile and Family Court Judges) (2019)
http://www.ncjj.org/AFCARS/Disproportionality_Rates_for_Children_of_Color.aspx (last
visited September 9, 2019) (featuring interactive dashboard with calculation of
disproportionality rates for all states using the child population by race from the Census
Bureau and the number of children entering foster care based on the National Data
Archive on Child Abuse and Neglect’s Adoption and Foster Care Analysis and Reporting
System).
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with the majority that the father’s appeal does not offer a means to address his

concern about the children’s access to their cultural heritage.