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In re C.K.

Court of Appeals of Iowa

February 20, 2019

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

          Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.

          Jack E. Dusthimer, Davenport, for appellant father.

          Thomas J. Miller, Attorney General, and John McCormally (until withdrawal) and Anagha Dixit, Assistant Attorneys General, for appellee State.

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

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

         AFFIRMED.

         Timothy J. Tupper, Davenport, guardian ad litem for minor child.

         In November 2016, the mother of the child in interest was admitted to the hospital upon a drug overdose. The child was born by way of Caesarean section shortly thereafter. The child had numerous health complications due to the mother's drug use during gestation. The mother was married at the time, but the biological father of the child was unknown. The mother died shortly after giving birth. The child was placed in foster care. In January 2017, through DNA testing, the appellant was identified as the child's biological father. The father is not entirely sure of how many other children he has, but he reported to the Iowa Department of Human Services (DHS) that he has at least thirteen children with nine different women, not including two or three children who are now adults.

         The father explained to DHS that he was willing to care for the child and desired that the child be placed in his custody. In February, the father advised DHS he lived in Illinois, and he was in the process of fixing up his home. Because the father resided in Illinois, DHS explained an interstate-compact-on-placement-of-children (ICPC) study would need to be conducted as to the father's residence before the child could be placed with him. The father indicated his willingness to cooperate with the study. In April, the child was placed in a new foster home near the Illinois border to facilitate more frequent visitation with the father.

         Throughout the remainder of the case, the father was evasive with DHS in assessing the home for visitation suitability and with Illinois officials in conducting the home study. The father gave varying reasons for cancelling appointments and not allowing providers to visit the home. Although the father rents the home, the home is unlivable, his landlord reported the father never lived there, and the father variously reported to service providers he lived in other locations or planned to move. Although the condition of the home improved somewhat between May and early August 2018, it was still uninhabitable. Further, the father denied a service provider's request to view the home to assess any progress shortly before the termination hearing. At the termination hearing, the father professed to be in possession of images depicting the home to be in a habitable state. The court left the record open for two weeks to allow the father to submit the images as evidence. The images were never provided. However, it appears the court was able to view them on the father's cell phone at the time of the termination hearing. In its termination order, the court noted "the photos reveal that there is still quite a bit of work to be done on this home before it will be appropriate for small children."

         Ongoing concerns about whether the father was associating with women whom he had previous domestic-violence issues with also lingered throughout the life of the case. The father has an extensive history of domestic-violence occurrences with multiple women. As a result of an inability to verify a stable housing situation for the father, the ICPC request was denied. The father requested a home study be conducted on a former paramour's residence, but the father was unable to provide any information showing that he actually resided there. The father was offered liberal visitation throughout the case, but he was generally inconsistent in attending, cancelling or not confirming the visitation appointments on many occasions.

         In December 2017, the State filed a petition to terminate the father's parental rights on numerous grounds, citing the father's continued association with women whom he has shared violent relationships and his inability to provide a stable home for the child. In October 2018, the juvenile court terminated the father's parental rights under Iowa Code section 232.116(1)(h) (2017).[1] The father appeals this ruling.[2] Our review is de novo. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018).

         First, the father appears to challenge the statutory ground for termination cited by the juvenile court. He initially argues, "Requiring completion of the [ICPC process] would violate a parent's due process rights." We interpret this as an argument that a finding a child cannot be returned to a parent's custody within the meaning of Iowa Code section 232.116(1)(h)(4) based on non-completion of the ICPC process violates due process. None of the cases cited by the father support his position, nor do we find them to be on point.[3] As a result of the father's failure to cite authority supporting his argument, we deem the argument waived. See Iowa R. App. P. 6.903(2)(g)(3); In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). In any event, the juvenile court's finding that the child could not be returned to the father's care within the meaning of section 232.116(1)(h)(4) was not because the ICPC process could not be completed. Instead, both the finding that the child could not be placed in his care and the non-completion of the ICPC process were direct results of the father's "fail[ure] to provide appropriate housing for this child."

         Next, the father argues, "There was not true continuing 'risk of adjudicatory harm' regarding" the child being placed in his care. We also interpret this as a challenge to the sufficiency of the evidence for section 232.116(1)(h)(4). An inability to provide stable and appropriate housing, which the record clearly and convincingly establishes the father has been unable to provide throughout the life of this case, amounts to an adjudicatory harm precluding placement of a child in a parent's care. See Iowa Code § 232.2(6)(g); see, e.g., In re A.B., No. 18-0358, 2018 WL 3060276, at *3 (Iowa Ct. App. June 20, 2018); In re J.M., No. 18-0163, 2018 WL 1631391, at *2 (Iowa Ct. App. Apr. 4, 2018); In re T.S.-G., Nos. 16-1821/16-1899, 2017 WL 513956, at *4 (Iowa Ct. App. Feb. 8, 2017); In re K.J., No. 16-1329, ...


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