IN THE COURT OF APPEALS OF IOWA
No. 18-2112
Filed March 6, 2019
IN THE INTEREST OF O.C.-M.,
Minor Child,
D.C., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Colin J. Witt, District
Associate Judge.
A father appeals the termination of his parental rights to his child.
AFFIRMED.
Deborah L. Johnson of Deborah L. Johnson Law Office, P.C., Altoona, for
appellant father.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Paul White of Juvenile Public Defender, Des Moines, attorney and guardian
ad litem for minor child.
Considered by Mullins, P.J., McDonald, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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CARR, Senior Judge.
The father appeals the termination of his parental rights to O.C.-M. He
argues the district court should have established a guardianship rather than
terminating his parental rights because termination is not in the best interests of
the child and a relative’s legal custody of the child precluded termination. Due to
a no-contact order that remains in effect until 2023 and the child’s need for
permanency, we find termination is in the best interests of the child and there is
nothing precluding termination.
I. Background Facts and Proceedings
The Iowa Department of Human Services first became involved with this
family at the time of O.C.-M.’s birth in July 2017 due to concerns the mother used
drugs during the pregnancy. On or about December 5, the mother called police to
report the father threatened to kill himself and O.C.-M. Police responded and
discovered O.C.-M. with facial injuries. Two days later, the mother took O.C.-M.
to the hospital with bruises on his face and abdomen, and he was diagnosed with
skull fractures and hematoma. The father admitted to shaking O.C.-M. on
December 5 and abusing various drugs. In addition, the mother reported the father
has abused the child previously, including incidents when O.C.-M. was one month
and four months old. On December 8, O.C.-M. was removed from his parents’
care. Both parents were charged with felonies and no-contact orders were
initiated. The no-contact orders remain in effect and are set to expire in 2023.
Originally, O.C.-M. was placed in foster care; however, his maternal
grandfather intervened and custody was transferred to him and his partner in July
2018. On September 20, the State filed a petition to terminate parental rights. At
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the November 7 hearing, both parents stipulated that the grounds for termination
alleged under Iowa Code section 232.116(1)(h) (2018) existed, but they argued
the district court should establish a guardianship with the maternal grandfather
rather than terminate their parental rights. On November 26, the district court
terminated both parents’ parental rights. The father appeals.1
II. Standard of Review
Our review of termination-of-parental-rights proceedings is de novo. In re
P.L., 778 N.W.2d 33, 40 (Iowa 2010). “We will uphold an order terminating parental
rights if there is clear and convincing evidence of grounds for termination under
Iowa Code section 232.116.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).
“‘Clear and convincing evidence’ means there are no serious or substantial doubts
as to the correctness [of] conclusions of law drawn from the evidence.” In re C.B.,
611 N.W.2d 489, 492 (Iowa 2002).
III. Best Interests
The father argues termination is not in the best interests of the child.2 He
asserts he has participated in the case in “every way possible and has continued
to express an ongoing love and affection for his son.” The State asserts the father
has failed to “discuss any of the statutory factors” and termination is in the best
interests of the child because O.C.-M. is young and needs permanency. “In
1
The mother initially appealed, but she voluntarily dismissed her appeal on December 17,
2018.
2
At the termination hearing, the father stipulated to the ground for termination under Iowa
Code section 232.116(1)(h). Moreover, on appeal, the father does not raise an argument
that the ground was not met. Therefore, we need not consider this step. See P.L., 778
N.W.2d at 40 (providing the court need not consider the existence of the grounds for
termination under Iowa Code section 232.116(1) because the parent did not dispute the
issue).
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considering whether to terminate the rights of a parent . . . , the court shall 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.” Iowa Code § 232.116(2). However,
“we cannot deprive a child of permanency after the State has proved a ground for
termination under [Iowa Code] section 232.116(1) by hoping someday a parent will
learn to be a parent and be able to provide a stable home for the child.” P.L., 778
N.W.2d at 41.
In the termination ruling, the district court stated,
While it may be true that [O.C.-M.] will be in his maternal
grandfather’s physical custody regardless of whether the court
chooses to terminate parental rights or appoint the maternal
grandfather as guardian, [O.C.-M.] deserves the stability that comes
from being adopted by his maternal grandfather. If the court chose
not to terminate parental rights, [O.C.-M.]’s future placement would
be unforeseeable (or at least less certain) for the next five years and
potentially years beyond.
Because of the no-contact order, the father is unable to contact O.C.-M. until 2023.
Even after the order expires, there is no guarantee the father will be able to regain
custody of the child. We agree with the district court that termination is appropriate
because having a permanent and stable home is in the best interests of the child.
See In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially)
(noting the child’s safety and need for a permanent home are the “defining
elements” when determining the best interests of the child).
IV. Preclusion of Termination
Next, the father argues the district court should have precluded termination
under Iowa Code section 232.116(3)(a) because a relative had legal custody of
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O.C.-M. He further asserts “[t]he court could have established [a] guardianship
with [the] maternal grandfather instead of the harsh and final option of termination
of parental rights.” The State asserts the district court appropriately found nothing
precludes termination and O.C.-M. “should not face the uncertainty of future
guardianship proceedings.”
Once the State has proved grounds for termination exist, the parent
resisting termination bears the burden of proof to establish a permissive factor
precludes termination under Iowa Code section 232.116(3). In re A.S., 906
N.W.2d 467, 476 (Iowa 2018). Iowa Code section 232.116(3)(a) states a court
may decline to terminate parental rights if “[a] relative has legal custody of the
child.” However, “[a]n 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. The child’s best interests always remain the first
consideration.” In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). “[A] guardianship is
not a legally preferable alternative to termination.” A.S., 906 N.W.2d at 477
(quoting In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App. 2017)). As previously stated,
with the no-contact order in effect, the father is unable to provide any care to
O.C.-M. until 2023 and O.C.-M. deserves permanency. Therefore, we find the
maternal grandfather’s custody of the child does not preclude termination.
V. Conclusion
We conclude termination is in the best interests of the child and the
relative’s legal custody of the child does not preclude termination.
AFFIRMED.