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In re J.W.

Court of Appeals of Iowa

November 21, 2018

IN THE INTEREST OF J.W., Minor Child, J.W., Father, Appellant.

          Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.

         A father appeals the removal of his daughter in a child in need of assistance dispositional order. AFFIRMED.

          Jacob L. Mason of JL Mason Law, PLLC, Des Moines, for appellant father.

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

          Michael J. Bandstra of Bandstra Law Office, Des Moines, guardian ad litem for minor child.

          Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.

          VOGEL, Presiding Judge.

         Following an adjudication and dispositional hearing, the father of J.W. appeals. He did not challenge the statutory findings below nor does he challenge those findings on appeal. He only asserts the district court could not "remove" the child from him because he had no actual or legal custody of the child. On our de novo review of this child-in-need-of-assistance (CINA) case, we affirm. See In re K.N., 625 N.W.2d. 731, 733 (Iowa 2001).

         J.W., born January 2008, was found to be a CINA based on the mother's neglect of J.W.[1] The mother and the father were never married, and no formal custody order appears in our record. In 2008, while J.W. was still an infant and in the father's care, the father was arrested and convicted of drug-related charges. He was incarcerated until May 2016, at which time J.W. began spending time with her father weekly, including overnight and weekend visits. In March 2018, after the Iowa Department of Human Services (DHS) became involved with this family due to the mother's neglectful conduct, the father was arrested and again incarcerated for a parole violation. He remained incarcerated in federal prison in Leavenworth, Kansas, at the time of the adjudicatory and dispositional hearings. At the dispositional hearing, the father agreed he was not in a position to assume custody of J.W. The dispositional order placed J.W. in the temporary custody of the mother (under DHS supervision) and ordered J.W.'s removal from the father.

         The State asserts the father's challenge to whether J.W. was removed from his custody is not ripe for review. See State v. Iowa Dist. Ct., 616 N.W.2d 575, 578 (Iowa 2000) (holding "[a] case is ripe for adjudication when it presents an actual, present controversy, as opposed to one that is merely hypothetical or speculative"). To the district court, the father's counsel argued, "[T]he only benefit the State receives from having a removal today is that it starts the clock towards the ability to terminate." We agree with the State the issue is not ripe for review. At the dispositional hearing, the father acknowledged he could not take custody of J.W. due to his incarceration. In his petition on appeal, the father also acknowledges "[c]ustody has never been with" him and "[t]here is no custody or visitation order for J.W." Whether and when J.W. was removed does not impact the CINA adjudication or disposition; it only impacts potential future proceedings- such as a termination of parental rights proceeding-when a specific amount of time must be shown to have passed since a child was removed from either parent's custody. Compare Iowa Code § 232.116(1)(e), (f), & (h) (requiring certain time frames before termination of parental rights), with Iowa Code § 232.2(6) (referencing certain acts to have occurred). Should the father's parental rights ever be in jeopardy of termination, he may raise his claims as to removal at that time.

         We therefore affirm the adjudicatory and dispositional order of the district court without further opinion. Iowa Ct. R. 21.26(d), (e).

         AFFIRMED.

          McDonald, J., concurs; Vaitheswaran, ...


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