IN THE COURT OF APPEALS OF IOWA
No. 15-1239
Filed September 10, 2015
IN THE INTEREST OF R.H.,
Minor Child,
R.H., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Christine Dalton,
District Associate Judge.
A father appeals the termination of his parental rights to his one-year-old
daughter. AFFIRMED.
Martha L. Cox, Bettendorf, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Michael J. Walton, County Attorney, and Julie A. Walton,
Assistant County Attorney, for appellee.
Patrick Kelly, Bettendorf, for mother.
Marsha Arnold, Davenport, attorney and guardian ad litem for minor child.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
2
TABOR, J.
An incarcerated father appeals the order terminating his parental
relationship with his one-year-old daughter R.H. He argues the permanency plan
was for his niece to have a guardianship over R.H. until he was released from
prison. Because we agree with the juvenile court’s decision to pave the way for
the niece to adopt R.H., we affirm the order terminating parental rights.
R.H. was born in August 2014 to parents Angela and Roderick. Because
both parents were incarcerated at the time of R.H.’s birth, Roderick’s niece took
custody upon the baby’s release from the hospital. The court adjudicated R.H.
as a child in need of assistance (CINA) in November 2014. For the past year,
R.H. has remained in the care of Roderick’s niece, who is ready to adopt the
child.
The juvenile court held a permanency hearing in March 2014. Based on
the parents’ ongoing incarceration and R.H.’s continuous out-of-home placement,
the court changed the permanency goal from reunification to termination and
adoption. The court ordered the State to file a petition to terminate parental
rights within thirty days. The State filed its petition on April 17, 2015, alleging
termination was appropriate under Iowa Code sections 232.116(1)(a), (d), (e),
(g), (h), (j), (k), and (l) (2013). The juvenile court held a hearing in June 2014 at
which Roderick appeared by telephone from prison.
On July 6, 2015, the court terminated Roderick’s rights under paragraphs
(e) and (h).1 Roderick now appeals.
1
Angela also had her parental rights terminated but she is not a party to this appeal.
3
We review termination-of-parental-rights proceedings de novo. In re A.M.,
843 N.W.2d 100, 110 (Iowa 2014). We uphold an order terminating parental
rights if there is clear and convincing evidence of grounds for termination. See In
re C.B., 611 N.W.2d 489, 492 (Iowa 2000). Evidence is “clear and convincing”
when there are no “serious or substantial doubts as to the correctness [of]
conclusions of law drawn from the evidence.” Id.
On appeal, Roderick challenges both of the statutory grounds for
termination, arguing he has shown a continuing interest in his child by
maintaining contact with the Department of Human Services (DHS) and
emphasizing that “the plan proposed and agreed to by the parties prior to the
Permanency Hearing was establishing a guardianship with the father’s niece.”2
When the juvenile court terminates parental rights on more than one
statutory ground, we may affirm the order on any ground supported by the
record. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We find the State
established the elements of paragraph (h) by clear and convincing evidence.
To terminate under this paragraph, the State was required to prove the
following: (1) the child is three years of age or younger; (2) the child has been
adjudicated CINA pursuant to section 232.96; (3) the child has been removed
from the physical custody of the child’s parents for at least six of the last twelve
months, or for the last six consecutive months and any trial period at home has
been less than thirty days; and (4) there is clear and convincing evidence that the
2
The State claims Roderick failed to preserve error because he did not contest the
grounds for termination at trial. While we agree Roderick did not present contradicting
evidence, we nonetheless review to determine whether there was clear and convincing
evidence supporting termination.
4
child cannot be returned to the parent’s custody as provided in section 232.102
at the present time. Iowa Code § 232.116(1)(h) (2013). “At the present time”
refers to the point of the termination hearing. See A.M., 843 N.W.2d at 111.
At the time of the termination hearing, Roderick was still incarcerated, but
eligible for parole. Roderick, who has a long criminal history, was serving a
fifteen-year prison sentence with a tentative discharge date of July 2017.
Roderick struggles with drug and alcohol abuse and had been undergoing
treatment while incarcerated.
Roderick does not assert R.H. could have been placed with him at the
time of the hearing. Rather he claims the juvenile court erred in terminating his
rights because his niece could care for R.H. until he was paroled. He suggests
establishing a guardianship with his niece would have been preferable to
terminating his parental rights. His position on appeal is somewhat different than
his sentiments expressed during the termination hearing, when he testified he
had “no problem with my niece [adopting] my daughter.”3
Establishing a guardianship is not a legally preferable alternative to
termination of parental rights and adoption. See In re L.M.F., 490 N.W.2d 66,
67–68 (Iowa Ct. App. 1992). We do not deprive a child of permanency when the
State has proved a ground for termination “hoping someday a parent will learn to
parent and be able to provide a stable home.” A.M., 843 N.W.2d at 113.
Termination is the appropriate solution when a parent is unable to regain custody
within the time frames of chapter 232. See In re C.K., 558 N.W.2d 170, 174
3
Roderick testified that if his niece adopted R.H., he did not want his daughter’s name to
be changed. He does not discuss the name-change issue on appeal.
5
(Iowa 1997) (“An appropriate determination to terminate a parent-child
relationship is not to be countermanded by the ability and willingness of a family
relative to take the child.”).
Because of his incarceration, Roderick was unable to regain custody of
R.H. within the time allotted by section 232.116(1)(h). The record did not reflect
that Roderick would be equipped to care for his daughter, whom he had yet to
meet, when he was released from prison. The record did show that R.H. was
thriving in the care of Roderick’s niece, who was willing to adopt her. The
juvenile court appropriately chose termination and adoption over the possibility of
establishing a guardianship.
AFFIRMED.