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In re A.W.

Court of Appeals of Iowa

June 5, 2019

IN THE INTEREST OF A.W., Z.H., Z.W., and Z.W., Minor Children, D.H., Mother, Appellant, A.W., Minor Child, Appellant.

          Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.

         A mother and a child appeals the termination of the mother's parental rights.

          Jamie L. Schroeder of The Sayer Law Group, P.C., Waterloo, for appellant mother.

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

          Melissa A. Anderson-Seeber of Juvenile Public Defender's, Waterloo, attorney and guardian ad litem for minor children Z.H, Z.W., and Z.W. and attorney for A.W.

          Heather Feldkamp of Feldkamp Law Office, Waterloo, guardian ad litem for minor child A.W.

          Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          Vaitheswaran, Presiding Judge.

         A mother appeals the termination of her parental rights to four of her seven children, born in 2006, 2012, 2014, and 2017. She contends (1) the State failed to prove the grounds for termination cited by the district court; (2) the district court should have granted her additional time to work towards reunification; (3) termination is not in the children's best interests; and (4) the district court should have placed the oldest child in a guardianship with the child's maternal grandmother. The oldest child also appeals the termination decision. She argues the court should not have terminated her mother's parental rights and should have placed her in a guardianship with her maternal grandmother.

         I. Mother's Appeal

         A. Grounds for Termination

         The district court terminated the mother's parental rights pursuant to Iowa Code section 232.116(1)(e), (f), and (h) (2018). We may affirm if we find clear and convincing evidence to support any of the grounds cited by the court. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). We elect to focus on subsections (f) and (h), which are identical but for the ages of the children and the time the children must have been removed from the parent's care. Iowa Code § 232.116(1)(f), (h). Subsection (f) requires proof the child is four or older. Id. § 232.116(1)(f)(1). Subsection (h) requires proof the child is three or younger. Id. § 232.116(1)(h)(1). The court terminated the mother's parental rights to the oldest child under subsection (f) and the remaining three children under subsection (h). Both subsections require proof the child cannot be returned to the parent's custody. Id. § 232.116(1)(f)(4), (h)(4).

         We begin with the children's ages. The oldest child clearly fell within the age parameters of subsection (f) and the youngest two children clearly fell within the parameters of subsection (h). The third child was three when the termination petition was filed but turned four several days before the termination hearing. The district court noted that the child was four but invoked section 232.116(1)(h) rather than (f) to terminate the mother's parental rights to him.

         Age is determined at the time of the termination hearing. See In re N.N.,692 N.W.2d 51, 53 (Iowa Ct. App. 2004) (examining ages "at the time of the termination hearing"). Under similar circumstances, we entered a limited remand order to allow the State to plead the correct age provision. See In re M.T.,613 N.W.2d 690, 693 (Iowa Ct. App. 2000). Here, we need not employ the same procedure because the State pled both age provisions and the district court found the child was three but turned four. In ...


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