In the Interest of A.S.-g., Minor Child, D.C., Father

• Court: Court of Appeals of Iowa
• Decided: March 9, 2016
• Docket: 15-1537
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-1537 Filed March 9, 2016

IN THE INTEREST OF A.S.-G., Minor Child,

D.C., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

District Associate Judge.

An incarcerated father appeals the termination of his parental rights.

AFFIRMED.

Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant father.

Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant

Attorney General, for appellee State.

Charles S. Fuson of the Youth Law Center, Des Moines, for minor child.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2

VAITHESWARAN, Presiding Judge.

An incarcerated father appeals the termination of his parental rights to his

child, born in 2014. He argues the State failed to prove the grounds for

termination cited by the district court. On our de novo review, we disagree.

The State filed a child-in-need-of-assistance petition alleging the mother of

the child had unresolved substance abuse issues and three other children

already had been removed from her custody. The State did not recommend

removal of this child from the mother’s care but asserted the child would need

services and the mother’s care of the child would need to be monitored. The

petition further alleged the father had a criminal history and “ha[d] not been

involved during the pregnancy of this child.”

The district court adjudicated the child in need of assistance and placed

him in the mother’s legal custody under the protective supervision of the Iowa

Department of Human Services. The court ordered visitation with the father in

the discretion of the department.

Meanwhile, the father, who was incarcerated throughout the child’s life,

pled guilty to second-degree robbery and was given a ten-year prison sentence

with a seven-year mandatory minimum term. He testified the soonest he could

be released on parole would be 2021. When asked about the child at the

termination hearing, the father could not recall his middle name or date of birth.

He admitted he “would not be able to have custody [of the child] at this time or

take care of him.”

The district court terminated the father’s parental rights pursuant to Iowa

Code sections 232.116(1)(b) (abandonment or desertion), (e) (absence of 3

significant and meaningful contact), (h) (child cannot be returned to parent’s

custody), and (j) (imprisonment) (2015). We may affirm if we find clear and

convincing evidence to support any of the grounds cited by the district court. See

In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999).

Section 232.116(1)(h) was satisfied. This provision requires proof of

several elements. The father only challenges the element requiring removal from

the child’s parents. He asserts the court “never entered a removal order.” To the

contrary, the court explicitly ruled, “Placement outside the Father’s parental home

is necessary because continued placement in or a return to the home would be

contrary to the child’s welfare due to his unresolved substance abuse and

domestic violence issues.” Although the statement appeared in an adjudication

order rather than a “removal order,” it had the same effect. See In re P.S., No.

15-1476, 2015 WL 7075850, at *2 (Iowa Ct. App. Nov. 12, 2015) (noting

adjudication order removed child from parents’ custody); see also In re J.P., No.

15-1084, 2015 WL 5309113, at *3 (Iowa Ct. App. Sept. 10, 2015) (“[I]t is clear to

us that under section 232.116(1)(h) one parent may have parental rights

terminated while a child remains in the care of the other parent.”). We conclude

the district court appropriately terminated the father’s parental rights pursuant to

Iowa Code section 232.116(1)(h).

We affirm the termination of the father’s parental rights to this child.