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In re Z.G.

Court of Appeals of Iowa

March 22, 2017

IN THE INTEREST OF Z.G., Minor child, R.H., Father, Appellant.

         Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.

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

          Aaron H.R. Ginkens of Ginkens Law Firm, P.L.C., West Des Moines, for appellant father.

          Thomas J. Miller, Attorney General, and Janet L. Hoffman, Assistant Attorney General, for appellee State.

          Kimberly S. Ayotte of Youth Law Center, Des Moines, guardian ad litem for minor child.

          Considered by Potterfield, P.J., and Doyle and Tabor, JJ.

          DOYLE, Judge.

         The father appeals from the termination of his parental rights to his child, Z.G.[1] He claims: (1) the State failed to prove the statutory grounds for termination; (2) termination is not in the child's best interests; (3) termination was not proper because of the closeness of the bond between the father and the child; and (4) his imprisonment did not necessarily require termination of parental rights. He also claims the juvenile court erred in failing to grant him a six-month extension.

         We entered an order for further briefing on the issue of whether Z.G. was "removed from the physical custody" of the father in light of the Iowa Supreme Court's opinion interpreting the "removal" aspect of Iowa Code section 232.116(1)(h)(3). See In re C.F.-H., 889 N.W.2d 201, 203-08 (Iowa 2016). C.F.-H. was filed after the juvenile court's order terminating the father's rights. The father and the State filed additional briefs.

         The child was born with amphetamines, methamphetamine, cocaine, hydrocodone, and marijuana in his system. He was removed four days later from his mother's care, with the mother's consent. At that time, no father had been identified. Paternity testing confirmed R.H. as the father prior to the child in need of assistance (CINA) adjudication hearing, but he was not served with notice of the hearing. The child was adjudicated a CINA pursuant to Iowa Code section 232.2(6)(c)(2), 232.2(6)(n) and 232.2(6)(o) (2016).[2] Sometime after the CINA adjudication hearing the father was served with the CINA petition and adjudication order. He and his attorney attended the first dispositional hearing where the child was confirmed to be a CINA. The father attended by telephone and his attorney was present at the subsequent dispositional review hearing. The father participated by telephone and his attorney was present at the permanency/termination hearing.

         The father was incarcerated at the time of the child's birth and remained incarcerated throughout the life of this case. Although his tentative release date from the Newton Correctional Facility was scheduled for January 11, 2017, he was also on a federal detainer after having pled guilty to two counts of bank robbery. His sentencing in federal court was scheduled for January 23, 2017. The father hoped to be released from federal custody in three to three-and-one-half years, although he expected a sentence of fifty to seventy months pursuant to the federal sentencing guidelines.

         We review termination-of-parental-rights proceedings de novo. See In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). We examine both the facts and law, and we adjudicate anew those issues properly preserved and presented. See In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We will uphold an order terminating parental rights only if there is clear and convincing evidence establishing the statutory grounds for termination of the parent's rights. See In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). Evidence is "clear and convincing" when there is no serious or substantial doubt as to the correctness of the conclusions of law drawn from the evidence. Id.

         Termination of parental rights under Iowa Code chapter 232 (2016) follows a three-step analysis. See In re P.L., 778 N.W.2d 33, 40-41 (Iowa 2010). First, the court must determine if a ground authorizing the termination of parental rights under section 232.116(1) has been established. See id. at 40. Second, if a ground for termination is established, the court must apply the framework set forth in section 232.116(2) to decide if proceeding with termination is in the best interests of the child. See id. Third, if the statutory best-interests framework supports termination of parental rights, the court must consider if any statutory factors set forth in section 232.116(3) should serve to preclude termination. See id. at 41. The factors set forth in subsection three are permissive and not mandatory. See A.M., 843 N.W.2d at 113.

         The juvenile court terminated the father's parental rights pursuant to Iowa Code section 232.116(1)(e) and (h). When the juvenile court terminates parental rights on more than one ground, we may affirm the order on any ground we find supported by clear and convincing evidence in the record. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We choose to address the ground for termination under section 232.116(1)(h). Under this provision, the court may terminate the rights of a parent to a child if: (1) the child is three years old or younger, (2) the child has been adjudicated a CINA under section 232.96, (3) the child has removed from the physical custody of the child's parents for at least six of the last twelve months or the last six consecutive months and any trial period in the home has been under thirty days, and (4) "[t]here is clear and convincing evidence that the child cannot be returned to the custody of the child's parents as provided in section 232.102 at the present time." Iowa Code ...

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