In the Interest of K.O., Minor Child ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0832
Filed September 2, 2020
IN THE INTEREST OF K.O.,
Minor Child,
A.O., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan Cox, District
Associate Judge.
A father appeals the termination of his parental rights to a child.
AFFIRMED.
Thomas Hurd of Law Office of Thomas Hurd, Des Moines, for appellant
father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Sarah Elizabeth Dewein, Urbandale, attorney and guardian ad litem for
minor child.
Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.
2
VAITHESWARAN, Presiding Judge.
A father appeals the termination of his parental rights to a child born in 2018.
He contends (1) “[t]he District Court failed to apply the clear and convincing
evidence standard when finding the underlying facts in its decision to terminate
parental rights as required by Iowa Code 232.117(2) and (3)” (2019) and (2) the
State failed to prove “a nexus between [his] struggles and his ability and
willingness to be a safe parent.” The State responds that this court lacks
jurisdiction because the notice of appeal was not timely filed.
We begin with the jurisdictional issue. “A notice of appeal from a final order
or judgment entered in Iowa Code chapter 232 termination-of-parental-rights or
child-in-need-of-assistance proceedings must be filed within 15 days after the filing
of the order or judgment.” Iowa R. App. P. 6.101(1)(a). The father’s notice of
appeal was concededly not filed within that time period, and counsel agreed the
omission was his error.
In the wake of the error, counsel moved for a delayed appeal. The State
filed a resistance and motion to dismiss. The supreme court ordered the motions
submitted with the appeal.
After reviewing the motion and affidavits filed by the father and his attorney,
as well as the State’s response, we exercise our inherent authority to grant the
motion for delayed appeal. See In re C.J.P., No. 15-1814, 2016 WL 5930836, at
*2 (Iowa Ct. App. Oct. 12, 2016) (“Our court has held the inherent power to grant
a delayed appeal extends to termination of parental rights cases under chapter
232.” (citing In re A.B., No. 99-0227, 1999 WL 976097, at *3 (Iowa Ct. App. Oct.
27, 1999))). We proceed to the merits.
3
As noted, the father preliminarily contends the district court failed to apply
the “clear and convincing” standard to its fact findings. We are unpersuaded by
the argument because it is not the district court’s obligation to apply the standard
but the State’s obligation to prove the grounds for termination by that standard.
See In re A.S., 906 N.W.2d 467, 476 (Iowa 2018) (quoting In re J.W.D., 456
N.W.2d 214, 217 (Iowa 1990)). The father’s attorney conceded as much, asserting
in his opening statement to the district court that “the burden is on the State to
prove by clear and convincing evidence that the child cannot be returned to the
home of” the father.
We turn to the father’s second argument, which is essentially a challenge
to the evidence supporting the ground for termination cited by the district court.
That ground, Iowa Code section 232.116(1)(h), requires proof of several elements,
including proof the child cannot be returned to parental custody.
There is little dispute about the facts. The child tested positive for cocaine
at birth. The child’s mother had a history of substance abuse.1 The father was a
registered sex offender as a result of a conviction for aggravated criminal sexual
abuse of a child between the ages of thirteen and sixteen. He lived with the child’s
mother, in contravention of a requirement precluding contact with children. He also
had several convictions for assault causing injury, and the record is replete with
evidence of assaults he committed on the child’s mother and on other women with
whom he lived. The father’s criminal history also includes several convictions for
operating while intoxicated.
1 The district court terminated her parental rights, and she has not appealed.
4
The State sought and obtained the child’s removal from parental care. The
child remained out of the father’s care throughout the child-in-need-of-assistance
and termination proceedings.
At the time of the termination hearing, the father was jailed on new charges.
He appeared at the hearing but did not testify. The department social work
supervisor overseeing the case reported that the father “had minimal interactions
with [the child] due to his incarceration throughout this case.” She noted that he
“ha[d] been in and out of custody” and was “not available to parent [the child] and
ha[d] not demonstrated his parental capacity to safely care for his child.” The
supervisor expressed concern that “his underlying substance abuse needs [were
not] addressed and he [was] at continued risk of abuse of substances.” She
concluded that “it [was] not reasonably likely that” he would “adequately address”
his “mental health, substance abuse, domestic violence or parenting needs” or
“successfully demonstrate the stability” needed for the child. A court appointed
special advocate expressed similar concerns. She noted that the father “blew
positive” on a preliminary breath test “and then fled” and he was “incarcerated four
times in the [previous] six months.” She recommended termination of his parental
rights.
On our de novo review, we agree with the district court’s determination that
the father “continues to struggle with violence, substance abuse, criminality,
incarceration, and instability.” We also conclude that the State established the
requisite nexus between the father’s behaviors and his ability to parent the child
and have the child returned to his custody.
AFFIRMED.