In the Interest of B.T. and B.T., Minor Children, C.T., Father ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0078
Filed April 19, 2017
IN THE INTEREST OF B.T. and B.T.,
Minor Children,
C.T., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Colin J. Witt, District
Associate Judge.
A father appeals the juvenile court order terminating his parental rights to
his two daughters. AFFIRMED.
Thomas P. Graves of Graves Law Firm, P.C., Clive, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Paul L. White of Juvenile Public Defender, Des Moines, guardian ad litem
for minor children.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2
TABOR, Judge.
A father appeals a juvenile court order terminating his parental rights to his
two daughters, now ages six and eight. He contends the juvenile court should
have opted not to terminate his rights because the girls were placed with
relatives. He also raises a due-process issue. Finding no merit in either claim,
we affirm the court’s termination of the father’s parental rights.1
Cory and Jennifer had two daughters, born in 2008 and 2011. The girls,
B.T. and B.T., were removed from their parents’ care and adjudicated as children
in need of assistance (CINA) in July 2015 after they witnessed Cory assaulting
Jennifer. The family had been involved with services offered through the Iowa
Department of Human Services (DHS) since 2014, following a previous incident
of domestic violence. Cory acknowledges a history of substance abuse and
criminal behavior.
B.T. and B.T. lived with their paternal great-grandparents during the
fourteen-month duration of the CINA case. According to the DHS social workers,
neither Cory nor Jennifer made significant progress toward reunification during
that time. In March 2016, their maternal grandparents—who lived in Illinois—
successfully moved to intervene in the case. In June 2016, the State filed a
petition seeking to terminate the parental rights of both Cory and Jennifer. In
August 2016, child-welfare officials in Illinois completed a favorable home study
1
We review termination-of-parental-rights proceedings de novo. See In re M.W., 876
N.W.2d 212, 219 (Iowa 2016). We are not bound by the factual findings of the juvenile
court, but we give them weight. See id. We also review constitutional claims de novo.
In re C.M., 652 N.W.2d 204, 209 (Iowa 2002).
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for the girls’ maternal grandparents under the Interstate Compact on Placement
of Children (ICPC).
The juvenile court scheduled a hearing for September 6, 2016. On that
day, Cory was incarcerated at the Polk County jail on charges of operating while
intoxicated, driving under suspension, and probation revocation. Due to a
scheduling error, he was not transported in time for the beginning of the hearing,
which started at 8:42 a.m.2 Cory’s attorney asked to delay the hearing until his
client arrived, but the court declined. Before Cory’s arrival, the court took
testimony from the maternal grandparents concerning their request for
placement. After Cory arrived at 9:45 a.m., he testified to not being able to
resume custody of his daughters for at least ten months because of his criminal
sanctions. Cory told the court he wanted B.T. and B.T. to stay with their paternal
great-grandparents but acknowledged their maternal grandparents had been
supportive of the family, even if from a distance. The guardian ad litem spoke in
favor of termination of parental rights. The hearing ended at 10:54 a.m.
On September 7, 2016, the court issued an order continuing placement
with the paternal great-grandparents until September 30 and then modifying
placement to the home of the maternal grandparents starting October 1. The
next day, Cory’s attorney filed motions challenging the placement order. On
September 29, the juvenile court denied Cory’s motions, explaining it had
granted the paternal great-grandparents’ request to intervene and the two sets of
grandparents had reached “an agreement between themselves” to maintain
“familial connections” for B.T. and B.T. The court believed “any and all issues
2
Jennifer did not attend the hearing, and her attorney did not know her whereabouts.
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associated with fairness and representation are rectified.” Cory’s attorney tried to
appeal the placement order, but the supreme court deemed the ruling
interlocutory and denied review in November 2016.
In December 2016, the juvenile court issued its order terminating parental
rights, basing its termination of Cory’s parental rights on Iowa Code section
232.116(1)(f) (2016).3 On appeal, Cory does not challenge the statutory basis for
termination. In the absence of a challenge, the ground for termination remains in
place. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).
In his petition on appeal, Cory argues that because his daughters were
originally in the care of their paternal great-grandparents and later placed with
their maternal grandparents, Iowa Code section 232.116(3)(a) provided the court
the option of not terminating parental rights. Section 232.116(3)(a) states the
“court need not terminate the relationship between the parent and child if the
court finds . . . [a] relative has legal custody of the child.” But the girls were not in
the “legal custody” of their relatives when placed there by the DHS. See In re
A.M., 843 N.W.2d 100, 113 (Iowa 2014). And even if they had been in the legal
custody of relatives, the discretion to forego termination on that ground lies with
the juvenile court. Id. Here, the juvenile court appropriately exercised its
discretion in deciding that moving forward with termination of the parents’ rights
and adoption by the maternal grandparents was in the best interests of these
children. The record showed the girls suffered emotional and behavior issues,
aggravated by Cory’s inconsistency and broken promises. In the words of their
3
The court also terminated Jennifer’s parental rights, but she is not a party to this
appeal.
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grandfather, “the girls get very frustrated with his in-and-out visitation and
participation in their lives, so we think that’s really hurting them.”
Cory next argues he was denied due process because he was not present
for the entire September 6th hearing. He also suggests his due-process rights
were impacted “when the hearing turned into a hearing on the placement of the
children with the maternal grandparents.”
Cory is correct that “[d]ue process requires ‘fundamental fairness’ in
judicial proceedings,” including termination-of-parental-rights hearings. See In re
J.S., 470 N.W.2d 48, 52 (Iowa Ct. App. 1991) (holding parent received due
process where juvenile court overruled his motion to be transported from prison
for the termination hearing because he received notice of the hearing, was
represented by counsel at the hearing, and had the opportunity to present
testimony by deposition). In this case, we see no denial of fundamental fairness.
Cory received notice of the hearing, was represented by counsel at the hearing,
and arrived in time to testify to his efforts at achieving sobriety and his desire for
more time to reunite with his daughters. Cory also had the opportunity to tell the
court why he wanted the girls to stay with their paternal great-grandparents: “All
the family is here in town. I think they’re good support. There’s plenty of people
around to help. They’ve already been going to their schools. They have friends
there. I mean, this is their home.” To the extent Cory is complaining about the
post-termination placement of B.T. and B.T. with their maternal grandparents, he
is not entitled to relief because he is not an aggrieved party. See In re K.A., 516
N.W.2d 35, 38 (Iowa Ct. App. 1994).
AFFIRMED.