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In re W.D.

Court of Appeals of Iowa

March 21, 2018

IN THE INTEREST OF W.D., Minor Child, C.W., Father, Appellant.

          Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.

         A father appeals the termination of his parental rights.

          Gregory A. Johnston, Muscatine, for appellant father.

          Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney General, for appellee State.

          Christopher J. Foster of Foster Law Office, Iowa City, guardian ad litem for minor child.

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

          DOYLE, Presiding Judge.

         A father appeals the termination of his parental rights to his child.[1] He claims the State failed to prove the statutory grounds for termination, that he should be granted additional time to work toward reunification, and that termination is not in the child's best interests. We affirm the juvenile court's order.

         We review termination proceedings de novo. See In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). In doing so, we are not bound by the juvenile court's findings of fact, although we give them weight, especially those concerning witness credibility. See id. The three-step statutory framework governing the termination of parental rights is well established and need not be repeated here. See In re P.L., 778 N.W.2d 33, 40-41 (Iowa 2010).

         The father challenges the sufficiency of the evidence supporting the grounds for terminating his parental rights. Before terminating parental rights, the juvenile court must find clear and convincing evidence supporting one of the grounds for termination listed under Iowa Code section 232.116(1) (2017). See In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). The juvenile court terminated the father's parental rights pursuant to section 232.116(1)(h). To terminate the father's parental rights pursuant to section 232.116(1)(h), the State must prove: (1) the child is three years of age or younger; (2) the child has been adjudicated a child in need of assistance (CINA); (3) the child has been removed from the physical custody of the child's parents for at least six of the last twelve months, or for the last six consecutive months; and (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. The father concedes the first two elements, so his claim on appeal implicates the third and fourth elements.

         Section 232.116(1)(h)(3) requires that the child has been removed from the physical custody of the parents for at least six of the last twelve months, or for the last six consecutive months. First, it does not appear the father raised this issue before the juvenile court. This raises a serious error preservation issue. See In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App. 1994) ("As a general rule, an issue not presented in the juvenile court may not be raised for the first time on appeal."). Second, the father articulates no argument with regard to this element. His failure to make any argument concerning this element waives a challenge to termination on this issue. See L.N.S. v. S.W.S., 854 N.W.2d 699, 703 (Iowa Ct. App. 2013) (noting a party's failure to present any substantive analysis or argument on an issue waives the issue); see also Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996) (stating "our review is confined to those propositions relied upon by the appellant for reversal on appeal"). Nevertheless, even if error was preserved, we find the father's implicit claim without merit.

         The child was removed from the mother's custody in May 2016 and placed in the custody of the Iowa Department of Human Services (DHS) for placement in family foster care. The child has never been in the father's custody. After paternity testing, an amended petition identifying C.W. as the father was filed in July 2016. The termination hearing was held over a year later, in September 2017.

         As to the requisite removal time period, the clock started running when the child was removed from the mother. As we previously stated, "removal of the child from the mother is 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." Id. We reached the same conclusion in In re C.H., No. 16-2179, 2017 WL 1278368, at *3 (Iowa Ct. App. Apr. 5, 2017). 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 either parent." C.H., 2017 WL 1278368, at *3. We are persuaded by the reasoning of Z.G. and C.H. The child's formal removal from his mother was sufficient to start the statutory timelines counting toward termination as to both parents. See In re K.H., No. 17-0384, 2017 WL 2189769, at *2 (Iowa Ct. App. May 17, 2017). Clear and convincing evidence shows the grounds for terminating the father's parental rights pursuant to section 232.116(1)(h)(3) have been met.

         The father challenges the sufficiency of the evidence supporting the fourth element of paragraph (h)-that his child could not be returned to his custody at the time of the termination hearing. See Iowa Code § 232.116(1)(h)(4) ("There 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."). To satisfy its burden of proof, the State must establish "[t]he child cannot be protected from some harm which would justify the adjudication of the child as a [CINA]." Id. § 232.102(5)(2); accord In re A.M.S., 419 N.W.2d 723, 725 (Iowa 1988). The threat of probable harm will justify termination of parental rights, and the perceived harm need not be the one that supported the ...


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