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In re C.H.-B.

Court of Appeals of Iowa

September 26, 2018

IN THE INTEREST OF C.H.-B., Minor Child, A.B., Father, Appellant.

          Appeal from the Iowa District Court for Webster County, Angela L. Doyle, District Associate Judge.

         The father appeals from the termination of his parental rights. AFFIRMED.

          Jessica L. Morton of Bruner, Bruner & Reinhart, LLP, Carroll, for appellant father.

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

          Neven J. Conrad of Baker, Johnsen, Sandblom & Lemmenes, Humboldt, guardian ad litem for minor child.

          Considered by Danilson, C.J., and Vogel and Tabor, JJ.


         The father appeals the termination of his parental rights to his child, C.H.-B., born in January 2017.[1] The juvenile court terminated the father's parental rights pursuant to Iowa Code section 232.116(1)(b), (e), (h), and (l) (2018). It also found termination was in the child's best interests. When the juvenile court finds more than one ground for termination under section 232.116(1), "we may affirm . . . on any ground we find supported by the record." In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). Upon our de novo review, see In re A.S., 906 N.W.2d 467, 472 (Iowa 2018), we find no basis to grant an extension, and find clear and convincing evidence supports termination under section 232.116(1)(h). Therefore, we affirm.

         As a preliminary matter, we address the State's contention the father has failed to preserve error. "[T]he general rule that appellate arguments must first be raised in the trial court applies to CINA and termination of parental rights cases." A.B., 815 N.W.2d at 773. Error is not preserved, as is repeatedly claimed in the father's petition on appeal, by filing a timely notice of appeal. See In re K.W., No. 15-0790, 2015 WL 4642786, at *1 (Iowa Ct. App. Aug. 5, 2015); see also Thomas A. Mayes & Anuradha Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives on Present Practice, 55 Drake L. Rev. 39, 48 (2006) ("While this is a common statement in briefs, it is erroneous, for the notice of appeal has nothing to do with error preservation." (footnote omitted)).

         Nevertheless, sufficiency of evidence sustaining any finding may be challenged on appeal from judgment following a bench trial even though the point was not raised in the trial court. In re A.R., 316 N.W.2d 887, 888 (Iowa 1982). This is mandated by Iowa Rule of Civil Procedure 1.904(1). Thus, error is preserved on the father's claims that there was insufficient evidence to sustain the court's finding that grounds for termination existed.

         The child came to the attention of the department of human services (DHS) a week after he was born when the child's umbilical-cord-blood drug screen was positive for THC. Following his premature birth, the child remained hospitalized for nearly four months, and at the time of trial the child continued to receive medical care related to his premature birth. The child was discharged to his parents' care in May 2017. Roughly two weeks after the child was discharged, DHS learned of domestic violence and methamphetamine use in the home, and the parents signed a voluntary placement agreement. The child was placed in foster care, where he continues to reside. The child was adjudicated a child in need of assistance (CINA) in June 2017, and the juvenile court ordered temporary custody be placed with DHS. The removal continued after the dispositional hearing held in July 2017.

         The trial on the State's petition was held on June 7 and 13, 2018. On appeal the father argues there was not clear and convincing evidence for any of the four grounds under which the court terminated his parental rights. Under Iowa Code section 232.116(1)(h), 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 been out of the parent's custody for at least six of the last twelve months, or the last six consecutive months and any trial period at home has been less than 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."

         There is no question the child meets the first three requirements. It is uncontested he was under the age of three at the time of trial, had been adjudicated a CINA in June 2017, and had been out of the custody of his parents since May 2017.

         Here, despite more than a year of services, the father was still not in a position to care for the child without ongoing DHS involvement. The evidence ...

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