In the Interest of E.R., Minor Child, T.R., Father ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1217
Filed October 12, 2016
IN THE INTEREST OF E.R.,
Minor child,
T.R., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan C. Cox, District
Associate Judge.
A father appeals the termination of his parental rights to his child.
AFFIRMED.
Jane M. White of Jane White Law Office, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Chuck S. Fuson of Youth Law Center, Des Moines, guardian ad litem for
minor child.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.
A father appeals from a juvenile court’s order terminating his parental
rights to his child, E.R.1 He claims the State failed to prove the statutory grounds
for termination, the petition was filed prematurely, and the court erred in finding
the father was in default. We affirm the juvenile court’s order.
We review termination-of-parental-rights proceedings de novo. See In re
A.M., 843 N.W.2d 100, 110 (Iowa 2014). The three-step statutory framework
governing termination of parental rights is well established and need not be
repeated here. See In re P.L., 778 N.W.2d 33, 40-41 (Iowa 2010).
The juvenile court terminated the father’s parental rights under Iowa Code
section 232.116(1)(e) and (h) (2015). When the juvenile court terminates
parental rights on more than one ground, we may affirm the order on any of the
statutory grounds supported by clear and convincing evidence. See In re D.W.,
791 N.W.2d 703, 707 (Iowa 2010). We choose to address the ground for
termination under section 232.116(1)(h), which provides that parental rights may
be terminated
when there is clear and convincing evidence that a child under the
age of three who has been adjudicated [a child in need of
assistance (CINA)] and removed from the parents’ care for at least
the last six consecutive months cannot be returned to the parents’
custody at the time of the termination hearing.
Id.
The child was removed from the parents’ care on November 5, 2015, and
was later adjudicated a CINA. On April 22, 2016, a petition for termination of
parental rights was filed. The petition erroneously alleged the child had been
1
The mother’s parental rights were also terminated. She is not a party to this appeal.
3
removed from the physical custody of the parents for at least the last six months.2
The termination-of-parental-rights hearing was held on June 17, 2016. The
father was not present due to his incarceration, but he was represented by
counsel. The court took judicial notice of certain evidence. No testimony was
presented at the hearing, and the father presented no independent evidence.
On appeal, the father asserts section 232.116(1)(h)(3) “requires that the
child be removed from the care of the parent for six months prior to the filing of
the Petition to Terminate or the allegation is not ripe.” Because the child had not
been removed for at least six months on the day the petition was filed, the father
argues the termination must be reversed. The father did not raise this issue
before the juvenile court; he raises it for the first time on appeal. “As a general
rule, an issue not presented in the juvenile court may not be raised for the first
time on appeal.” In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App. 1994); see
also 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 decide them on appeal.”).
Consequently, the father has not preserved this issue for our review.
Even assuming error had been preserved, the father’s claim is without
merit. “The statutory time period specified in section 232.116(1)(h)(3) begins to
run on the date custody is transferred and continues to run until the date of the
termination hearing.” In re J.O., 675 N.W.2d 28, 30 (Iowa Ct. App. 2004). Put
another way, we look to see if the statutory requirements are met as of the date
of the termination-of-parental-rights hearing, not the date of the filing of the
2
The requisite six-month period did not run until May 5, 2016.
4
petition. See id. Clearly, the six-month removal requirement was met at the time
of the hearing.
The father does not dispute that the other three elements of paragraph (h)
were proved, and his failure to make any argument concerning these elements
waives any challenge to them. See L.N.S. v. S.W.S., 854 N.W.2d 699, 703 (Iowa
Ct. App. 2013) (noting a party’s failure to present any substantive analysis or
argument on an issue waives the issue); see also Hyler v. Garner, 548 N.W.2d
864, 870 (Iowa 1996) (stating “review is confined to those propositions relied
upon by the appellant for reversal on appeal”). In any event, we find on our de
novo review of the record that the grounds under section 232.116(1)(h) were
proved by clear and convincing evidence. Accordingly, we affirm the termination
of the father’s parental rights under section 232.116(1)(h).
The father also argues “the juvenile court erred in stating the father was
procedurally in default for failing to file a motion or answer and terminated his
parental rights for that reason.” Curiously, the juvenile court included the
following language in its order:
Procedurally, the father is in default. He failed to file a motion or
answer. In addition, the father failed to be present for trial. The
court therefore finds that he is in default and enters judgment
against him and terminates his parental rights to E.R.
The court erred in making such a statement.
The father was not in default for failing to file a motion or answer to the
petition to terminate his parental rights. There is no rule or statutory provision
that requires a parent to respond to such petition by motion or answer. Nor was
the father in default for failing to be present at termination-of-parental-rights
5
hearing. His attorney filed an appearance in the matter and appeared on behalf
of the father at the hearing. It is not uncommon for an incarcerated parent to be
absent from a termination-of-parental-rights hearing; nor is the incarcerated
parent’s physical or telephonic presence required. See In re J.S., 470 N.W.2d
48, 52 (Iowa Ct. App. 1991) (holding a parent is afforded due process during
termination-of-parental-rights proceedings if given notice of the proceedings,
represented by counsel who is present at the proceedings, and afforded the
opportunity to present testimony by deposition); see also In re K.M., No. 16-0795,
2016 WL 4379375, at *3-4 (Iowa Ct. App. Aug. 17, 2016); In re J.G., No. 15-
1755, 2016 WL 363747, at *1 (Iowa Ct. App. Jan. 27, 2016); In re N.H., No. 15-
0691, 2015 WL 5577069, at *2-3 (Iowa Ct. App. Sept. 23, 2015); In re N.W., No.
12-1233, 2012 WL 3860661, at *1 (Iowa Ct. App. Sept. 6, 2012); In re A.S., No.
11-1325, 2012 WL 170705, at *1 (Iowa Ct. App. Jan. 19, 2012); In re K.B., No.
09-1397, 2009 WL 4111206, at *3-4 (Iowa Ct. App. Nov. 25, 2009); In re M.B.,
No. 09-0409, 2009 WL 1913699, at *2 (Iowa Ct. App. July 2, 2009).
However, because we have affirmed the juvenile court’s termination of the
father’s parental rights under section 232.116(1)(h), the juvenile court’s
erroneous default language is merely surplusage and therefore harmless.
Reversal is not warranted.
AFFIRMED.