In the Interest of E.B., Minor Child , 919 N.W.2d 768 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0486
Filed June 6, 2018
IN THE INTEREST OF E.B.,
Minor Child,
J.R., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor,
District Associate Judge.
A father appeals the termination of his parental rights to his child.
AFFIRMED.
Martha L. Cox, Bettendorf, for appellant father.
Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant
Attorney General, for appellee State.
Marsha J. Arnold, Davenport, guardian ad litem for minor child.
Considered by Danilson, C.J., and Mullins and McDonald, JJ. Tabor, J.,
takes no part.
2
MULLINS, Judge.
A father appeals the termination of his parental rights to his child.1 He
challenges the grounds for termination of his parental rights and contends the
juvenile court erred in refusing to consider his motion to modify placement prior to
termination.2
The parents of the child in interest have a history of founded abuse reports,
domestic violence, and anger-management and mental-health issues. The Iowa
Department of Human services has been providing services to these parents since
2015 in relation to a number of their children. The child in interest was born in
January 2017. At the time of the child’s birth, the State had previously petitioned
to terminate the mother’s parental rights as to two of the child’s siblings. 3 Two
1
Regular readers of the opinions of this court will notice striking similarities between the
legal analysis contained in this opinion and that contained in another being filed
simultaneously. Cf. In re C.R., No. 18-0592, 2018 WL _____ (Iowa Ct. App. June 6, 2018).
This is because these cases share the same appellant who forwards the same— largely
verbatim—arguments in the separate cases. Although the factual and procedural histories
of the separate cases vary, albeit minimally, and we limit our analysis of each case to its
record alone, the legal principles employed still apply equally to each case.
2
As he did in a separate appeal concerning termination of his parental rights to another
of his children, the father also contends the juvenile court “erred when it did not consider
the evidence for purposes of a permanency hearing and only a termination of parental
rights hearing, therefore waiving the father’s right to request six more months to reunify
with his child.” As we do in the other appeal, we find no merit in the father’s argument that
the juvenile court’s decision to conduct the termination hearing prior to a permanency
hearing effectually foreclosed his right to request a six-month extension, as such a request
may be made in a termination hearing and in fact was made by the father at the termination
hearing in this case. See Iowa Code § 232.117(5) (2017) (providing if, following a
termination hearing, the court does not terminate parental rights but finds there is clear
and convincing evidence that the child is a child in need of assistance, the court may enter
an order in accordance with section 232.104(2)(b)); see also id. § 232.104(2)(b) (affording
the juvenile court the option to continue placement of a child for an additional six months
if the court finds “the need for removal . . . will no longer exist at the end of the additional
six-month period”).
3
The mother’s parental rights to the two siblings were terminated later that month. The
appellant, J.R., is the biological father of one of these children, and his parental rights to
that child were also terminated. The father also consented to the termination of his
parental rights as to two of his other children in March 2017.
3
days after the child’s birth, the mother executed a voluntary placement agreement
placing the child in foster care with her siblings. In March, the juvenile court
adjudicated the child to be a child in need of assistance and continued the foster-
care placement.4 Following a dispositional hearing in April, the court again
continued the foster-care placement. The child has been in the same foster-to-
adopt home all of her life and is bonded with her foster parents.
Beginning in April, the father was allowed visitation with the child three times
per week. In May, the father was arrested on a charge of domestic abuse assault
with the use or display of a weapon. Between the commencement of visitation and
the father’s arrest, he only attended three visitations with the child. The father
made no attempts to contact the child after the commencement of his
incarceration. At the time of the termination hearing in February 2018, the father
was still incarcerated. The father testified his discharge date was to be in
November 2018, but he expected to be paroled in April. However, another witness
testified the father is to remain incarcerated until October 2019. This is the father’s
fourth term of imprisonment since 2009.
In June 2017, the State filed a petition to terminate the parental rights of
both parents. On December 20, the father filed a motion to “modify disposition
and/or modify placement.” In his motion, the father stated his mother and her
husband are licensed foster parents and requested that the child be placed with
them. A hearing was scheduled to consider the termination petition, permanency,
and the father’s modification motion. At the commencement of the hearing in
4
At the time of the adjudicatory order, the father was one of two putative fathers. Paternity
testing in late March identified him as the child’s biological father.
4
February 2018, the juvenile court noted its intention to begin with the termination
issue, noting the outcome on that issue would impact whether a permanency
hearing and consideration of the father’s modification motion would be necessary.
The court ultimately terminated the father’s parental rights pursuant to Iowa
Code section 232.116(1)(e), (g), and (h). The father filed a motion to reconsider,
enlarge, or amend requesting the court to allow him an additional six months
toward reunification and to grant his motion to modify placement. The juvenile
court denied the motion, and the father appealed.5
Appellate review of termination-of-parental-rights proceedings is de novo.
In re A.S., 906 N.W.2d 467, 472 (Iowa 2018) (quoting In re A.M., 843 N.W.2d 100,
110 (Iowa 2014)). Our primary consideration is the best interests of the child. In
re J.E., 723 N.W.2d 793, 798 (Iowa 2006).
First, the father challenges the grounds for termination of his parental rights
under section 232.116(1)(e), (g), and (h). “On appeal, we may affirm the juvenile
court’s termination order on any ground that we find supported by clear and
convincing evidence.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010).
As to paragraph (h), the father does not challenge the sufficiency of the
evidence, argue termination is not in the best interests of the child, or contend a
statutory exception should be applied to preclude termination. See Iowa Code
§ 232.116(1)–(3). He only argues he was denied due process when the juvenile
court held a combined termination and permanency hearing and the circumstances
5
The mother’s parental rights were also terminated. She does not appeal.
5
render termination under paragraph (h) inappropriate. He states his argument as
follows:
[W]hen any Termination of Parental Rights Hearing is combined with
a Permanency Hearing, it renders the request for six more months
to reunify, as permitted by Iowa Code Section 232.104(2)(b),
meaningless because, if the child cannot be returned to the parent’s
custody that day, a ground for termination of parental rights exists.
In order to afford parents the right to request more time to reunify, as
permitted by Iowa Code Section 232.104(2)(b), Permanency
hearings cannot be combined with Termination of Parental Rights
Hearings. Combining such hearings violates a parent’s right to due
process of law.
Therefore, the district court erred when it terminated the
father’s parental rights pursuant to Iowa Code Section
232.116[(1)](h) because he was not afforded due process of law.
However, this due process argument was neither raised in, nor decided by, the
juvenile court. The argument is therefore not preserved for our review. See Meier
v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of
appellate review that issues must ordinarily be both raised and decided by the
district court before we will decided them on appeal.”); State v. Mulvany, 600
N.W.2d 291, 293 (Iowa 1999) (“[W]e require error preservation even on
constitutional issues.”). Furthermore, the father has failed to provide us with any
legal authority to support his position. Therefore, we alternatively deem the
argument waived. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in
support of an issue may be deemed waiver of that issue.”); see also In re C.B.,
611 N.W.2d 489, 492 (Iowa 2000) (“A broad, all encompassing argument is
insufficient to identify error in cases of de novo review.”); Ingraham v. Dairyland
Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974) (“To reach the merits of this case
would require us to assume a partisan role and undertake the appellant’s research
and advocacy. This role is one we refuse to assume.”).
6
Because the father’s challenge to termination under paragraph (h) is both
waived and not preserved and the father does not challenge the sufficiency of the
evidence, argue termination is not in the best interests of the child, or contend a
statutory exception should be applied to preclude termination, we affirm the
termination of his parental rights pursuant to section 232.116(1)(h), the grounds
for which we find supported by clear and convincing evidence. See In re P.L., 778
N.W.2d 33, 40 (Iowa 2010) (indicating that if a party does not challenge a particular
step in the three-step termination framework, appellate courts need not address
the issue).
Next, the father contends the juvenile court erred in refusing to consider his
motion to modify placement prior to termination. He argues placing the child with
his mother, a relative, is less restrictive than continuing the placement of the child
in her foster-to-adopt home, where she has resided all of her life.
We acknowledge that “chapter 232 favors relative placements over
nonrelative placements.” In re N.M., 528 N.W.2d 94, 97 (Iowa 1995). Had the
father moved for modification of placement earlier in the case, he would be in a
better position to argue on appeal that the juvenile court was required to consider
the motion prior to termination. Here, however, the father did not move to modify
placement until roughly six months after the initiation of termination proceedings
and less than two months before the termination hearing. At the termination
hearing, after the father’s counsel requested the court to “start with the
permanency” issue, the juvenile court noted its intention to receive evidence on
the termination issue, noting the outcome on that issue would impact whether a
permanency hearing and consideration of the father’s modification motion would
7
be necessary. The court made the necessary findings for termination and
thereafter denied the father’s post-hearing motion to reconsider the modification
motion.
We find the juvenile court’s decision to reserve ruling on the modification
motion pending termination was not inappropriate. See In re D.S., 806 N.W.2d
458, 472 (Iowa Ct. App. 2011) (concluding juvenile court acted appropriately in
declining to address placement issue until after termination hearing where issue of
placement was not raised until well after removal and after termination proceedings
had been initiated). Furthermore, “[w]hen a court terminates parental rights, there
is no statutory preference for placement with a relative.” A.S., 906 N.W.2d at 477.
We affirm the juvenile court.
AFFIRMED.