IN THE INTEREST OF K.H., Minor child, STATE OF IOWA, Appellant.
from the Iowa District Court for Story County, Stephen A.
Owen, District Associate Judge.
State of Iowa appeals an order dismissing a petition for the
termination of a father's parental rights.
J. Miller, Attorney General, and Mary A. Triick, Assistant
Attorney General, for appellant State.
J. Olberding of Olberding Law Office, Nevada, for appellee
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
VAITHESWARAN, Presiding Judge.
Code section 232.116(1)(h) (2016) sets forth one of several
grounds to terminate the rights of an unfit parent. The
provision, in part, requires the State to prove "[t]he
child has been removed from the physical custody of the
child'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."
Iowa Code § 232.116(1)(h)(3). In In re C.F.-H,
the Iowa Supreme Court construed this language "to
require a change from physical custody to lack of physical
custody" rather than "simply . . . absence of
custody." 889 N.W.2d 201, 207 (Iowa 2016).
light of C.F.-H., the district court in this case
reconsidered a decision to terminate an incarcerated
father's parental rights to his child. After concluding
the State failed to establish the child was removed from the
father pursuant to Iowa Code section 232.116(1)(h), the court
ordered the dismissal of the State's petition against
appeal, the State argues the child was removed from the
father and, alternatively, the child's removal from the
mother triggered the move toward termination as to both the
mother and the father. We agree with the State on both
novo review of the record reveals the following facts and
proceedings. The child was born in late 2014. A year earlier,
the father was adjudged guilty of possession of
methamphetamine (second offense) and was placed on probation.
He failed to comply with certain terms of his probation and
the district court revoked his probation less than two weeks
after the child's birth. The father was incarcerated both
before and after the child's birth. He never had physical
custody of the child.
the child was ten months old, the State sought to have him
removed from his mother's care based on her use of
illegal substances and her failure to cooperate with a safety
plan. Following a hearing, the district court entered a
formal order "temporarily remov[ing] [the child] from
the care and custody of his mother . . . and his alleged
this temporary removal order that distinguishes K.H.'s
case from C.F.-H. As we recently stated, "In
C.F.-H., no removal occurred; the child remained in
the custody of the mother throughout." In re
C.H., No. 16-2179, 2017 WL 1278368, at *3 (Iowa Ct. App.
Apr. 5, 2017). Here, in contrast, the district court formally
removed the child from the physical custody of the father and
the mother. The formal removal of the child from the father
effected a "dynamic change of circumstance" as
envisioned in C.F.-H. See 889 N.W.2d at
206. The statutory "removal" requirement was
satisfied as to the father.
would reach this conclusion even if the district court had
not referred to the father because there was a formal order
temporarily removing the child from the mother. We recognize
the Iowa Supreme Court left open "the question of
whether a removal of the child from one parent is sufficient
to support termination of parental rights of a noncustodial
parent." See id. at 207 n.2; see also
id. at 213 n.7 (Mansfield, J., dissenting)
("Unfortunately, the majority opinion creates additional
doubt when it leaves open the possibility in a footnote that
even a 'dynamic' removal from a custodial parent
would be insufficient to meet the statutory removal
requirement as to the noncustodial parent. Under
this scenario, despite a CINA adjudication and a child's
relocation from the custodial parent to foster care, the
clock would not start running as to the noncustodial parent.
I do not think the majority intends this result, but the
reasoning in its opinion does not preclude it."). But
this court recently resolved the unanswered question. In a
case with virtually identical facts-an incarcerated father
and removal of the child from the mother based on her drug
use-we stated "removal of the child from the mother
[was] sufficient to support termination of the father's
parental rights." In re Z.G., No. 16-2187, 2017
WL 1086227, at *3 (Iowa Ct. App. Mar. 22, 2017). We cited the
supreme court's construction of "the word
'parents' to mean plural or singular."
Id. at *4 (citing In re N.M., 491 N.W.2d
153, 155 (Iowa 1992)). We concluded, "Because the child
had been removed from the mother's care for the requisite
period of time, . . . it was not necessary for the State to
prove the child was removed from the father's care."
reached the same conclusion in In re C.H. Again, we
construed the language "removed from the physical
custody of the child's parents" "to include
both singular and plural, " and we stated the term
"parents" "includes removal from ...