In the Interest of N.D., Minor Child ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1407
Filed February 17, 2021
IN THE INTEREST OF N.D.,
Minor Child,
N.D., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,
District Associate Judge.
A father appeals the termination of his parental rights to his child.
AFFIRMED.
Gabriel Brio Porter of Porter Law Firm of Iowa, Des Moines, for appellant
father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Karl Wolle of Juvenile Public Defender Office, Des Moines, attorney and
guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., Tabor, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
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SCOTT, Senior Judge.
This family came to the attention of the Iowa Department of Human Services
in April 2019 upon allegations the father was using marijuana while caring for the
child. The child was ultimately adjudicated a child in need of assistance but
remained in the mother’s legal custody. In August, the father tested positive for
methamphetamine and opiates. Then, in September, as part of his sentence
stemming from a criminal conviction of harassment in the third degree as to the
mother, a five-year no-contact order, set to expire in 2024, was entered prohibiting
the father from contacting the mother. The father did not comply with further drug
testing, nor did he meaningfully participate in services for the remainder of the
proceedings, which led to the State petitioning for termination of his rights in July
2020. In August, the father was arrested and charged with second-degree theft
and possession of methamphetamine. He entered written petitions to plead guilty
in September. The father remained incarcerated through the time of the
termination hearing in October but apparently had yet to be sentenced.1
At the termination hearing in October, the father testified to his agreement
that his substance-abuse problems resulted in him being mostly absent from the
child’s life for the last year. He also acknowledged his substance-abuse issues
stem from his mental-health issues, which he agreed he took no steps to address.
He had not visited the child since March at the latest, which he explained was a
result of the child’s susceptibility to COVID-19 and his exposure to germs as a
result of his homelessness. However, he was also inconsistent in attending visits
1 The plea agreement relative to the theft charged contemplated a lengthy term of
imprisonment.
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prior to the pandemic. He also failed to participate in virtual contact after the
pandemic reared its head, which he agreed posed “zero risk” to the child.
Following a termination hearing, the juvenile court terminated the father’s
parental rights pursuant to Iowa Code section 232.116(1)(b), (e), and (f) (2020).2
The father appeals. On appeal, we read the father’s arguments to challenge the
sufficiency of evidence supporting the statutory grounds for termination; claim
termination is contrary to the best interests of the child given the closeness of the
parent-child bond; and request application of the permissive exception to
termination contained in Iowa Code section 232.116(3)(a), which may be applied
when a relative has legal custody of the child.3
Our review is de novo. In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our
primary consideration is the best interests of the child, In re J.E., 723 N.W.2d 793,
2 In its termination order, the court ordered the child remain in the legal custody of
her mother.
3 The father also claims the termination ruling is contrary to the evidence and
therefore amounts to a violation of his due process rights. We find the father’s
argument, unsupported by citations to legal authorities and silent on the substance
of the inconsistencies, insufficient to facilitate appellate review and deem the
argument waived. See Iowa Rs. App. P. 6.201(1)(d) (“The petition on appeal shall
substantially comply with form 5 in rule 6.1401.”); 6.1401–Form 5 (“[S]tate what
findings of fact or conclusions of law the district court made with which you
disagree and why, generally referencing a particular part of the record, witnesses’
testimony, or exhibits that support your position on appeal. . . . General
conclusions, such as ‘the trial court’s ruling is not supported by law or the facts’
are not acceptable.” (emphasis added)); 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.”); Hyler v. Garner, 548 N.W.2d 864, 876 (1996) (“[W]e
will not speculate on the arguments [a party] might have made and then search for
legal authority and comb the record for facts to support such arguments.”); Inghram
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.”); cf.
Iowa R. App. P. 6.903(2)(g)(3) (requiring arguments in briefs to contain reasoning,
citations to authorities, and references to pertinent parts of the record).
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798 (Iowa 2006), the defining elements of which are the child’s safety and need
for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).
We first address the sufficiency of the evidence supporting termination.
“[W]e 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 termination under Iowa Code section 232.116(1)(f), the father
only challenges the sufficiency of the evidence supporting the third element—that
“[t]he child has been removed from the physical custody of the child’s parents” for
the statutory period. Iowa Code § 232.116(1)(f)(3). He argues “the plain language
of the statute requires the State to prove by clear and convincing evidence that the
child was removed from both of the child’s parents.” In In re N.M., our supreme
court considered whether an element of then section 232.116(1)(d)—that “custody
of the child has been transferred from the child’s parents for placement pursuant
to section 232.102”—required “proof that custody had been transferred from both
parents.” 491 N.W.2d 153, 155 (Iowa 1992) (emphasis added). The court
answered that question in the negative, concluding: “It is not in the children’s best
interests to interpret the language . . . to prevent termination of the noncustodial
parent’s rights when the children are placed in the separate home of the other
parent.” Id. The court held “section 232.116(1)(d) allows the termination of
parental rights of the noncustodial parent even though legal custody of the child is
placed with the other parent.” Id. at 156.
We have recently applied this holding to section 232.116(1)(f)(3), as we
have done in the past. See In re A.N., No. 19-2032, 2020 WL 1049851, at *1 (Iowa
Ct. App. Mar. 4, 2020); see also In re B.S., No. 16-1295, 2016 WL 5934014, at *1
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(Iowa Ct. App. Oct. 12, 2016); In re J.M., No. 15-1707, 2016 WL 146726, at *2
(Iowa Ct. App. Jan. 13, 2016); In re G.W., No. 14-1990, 2015 WL 576555, at *2
(Iowa Ct. App. Feb. 11, 2015); In re C.L., No. 14-1973, 2015 WL 408392, at *2
(Iowa Ct. App. Jan. 28, 2015); In re C.P., No. 14-0808, 2014 WL 3513370, at *2
(Iowa Ct. App. July 16, 2014); In re M.M.T., No. 12-0519, 2012 WL 1612564, at *2
n.3 (Iowa Ct. App. May 9, 2012); In re E.S., No. 07-1612, 2007 WL 4195816, at *2
(Iowa Ct. App. Nov. 29, 2007); In re J.B., No. 07-1435, 2007 WL 2965084, at *1
(Iowa Ct. App. Oct. 12, 2007). We see no reason to change course, and we
therefore reject the father’s challenge to termination under section 232.116(1)(f).
We turn to the child’s best interests and statutory exceptions to termination.
The father claims termination is not in his child’s best interests, see Iowa Code
§ 232.116(2), due to the closeness of the parent-child bond. See id.§ 232.116(3)(c). We choose to separately address the often-conflated best-
interests and statutory-exception arguments. See In re A.S., 906 N.W.2d 467,
472–73 (Iowa 2019) (discussing three-step termination framework).
In determining whether termination is in the best interests of a child, we
“give primary consideration to the child’s safety, to the best placement for
furthering the long-term nurturing and growth of the child, and to the physical,
mental, and emotional condition and needs of the child.” Id. § 232.116(2). The
child has Down Syndrome resulting in developmental delays. She thrives on
consistency, and the father causes frequent disruption in the lives of the mother
and child. The father has been largely absent from the child’s life for a year, and
the child’s behavioral issues have significantly decreased since that contact has
ceased. And we conclude the father has been given ample time to get his affairs
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in order, and the child’s best interests are best served by providing permanency
and stability now. See In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (noting it is
not in the best interests of children to keep them in temporary situations “while the
natural parents get their lives together” (quoting In re C.K., 558 N.W.2d 170, 175
(Iowa 1997))). We find termination to be in the child’s best interests.
We turn to the father’s claim the juvenile court should have applied the
exception contained in section 232.116(3)(a), which allows the court to forego
termination when “[a] relative has legal custody of the child.” We first note the
application of the statutory exceptions to termination is “permissive, not
mandatory.” In re M.W., 876 N.W.2d 212, 225 (2016) (quoting In re A.M., 843
N.W.2d 100, 113 (Iowa 2014)). While the child remains in the mother’s legal
custody, we do not find this case to be an appropriate one to apply the urged
exception. The father’s involvement with the mother and child causes disruption,
and this child’s circumstances demand consistency and stability. In addition, the
father is prohibited from contacting the mother until 2024. We are unable to
conclude application of this exception would lead to a workable result.
Finally, the father requests application of the exception contained in Iowa
Code section 232.116(3)(c), which allows the juvenile court to decline to terminate
parental rights when “[t]here is clear and convincing evidence that the termination
would be detrimental to the child at the time due to the closeness of the parent-
child relationship.” Upon our de novo review, we conclude the father failed to meet
his burden to show “that the termination would be detrimental to the child . . . due
to the closeness of the parent-child relationship,” especially given the father being
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mostly absent from the child’s life for a year. See A.S., 906 N.W.2d at 476 (Iowa
2018) (noting parent bears burden to establish an exception to termination).
We affirm the termination of the father’s parental rights.
AFFIRMED.