In the Interest of C.W., Minor Child

• Court: Court of Appeals of Iowa
• Decided: February 5, 2020
• Docket: 19-1658
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-1658 Filed February 5, 2020

IN THE INTEREST OF C.W., Minor Child,

J.G., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Harrison County, Jennifer A. Benson,

District Associate Judge.

A father appeals the termination of his parental rights to his minor child.

AFFIRMED.

Ryan M. Dale, Council Bluffs, for appellant father.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Abby Davison of Public Defender’s Office, Council Bluffs, attorney and

guardian ad litem for minor child.

Considered by Tabor, P.J., and Mullins and Schumacher, JJ. 2

MULLINS, Judge.

A father appeals the termination of his parental rights to his minor child,

C.W., born in February 2018. He argues: (1) the juvenile court abused its

discretion and violated his due process rights in denying his motions to continue

the termination hearing, (2) the court erred “in denying [his] motion for records from

the Department of Corrections” (DOC), (3) the court erred in taking judicial notice

of a prior child-welfare case as well as two criminal cases, (4) the State provided

insufficient evidence to support termination, (5) termination is not in the child’s best

interests because he loves the child “and there is a closeness there,” and (6) the

Iowa Department of Human Services (DHS) failed to make reasonable efforts at

reunification.1

I. Background Facts and Proceedings

The father has a long history of substance abuse and engaging in criminal

activity. He has been in and out of prison and jail throughout his life, including a

fifteen-year stint in federal prison from 1994 through 2009. He has had his parental

rights terminated as to three of his other children. The family came to DHS’s

attention in August 2018 upon concerns for the parents’ use of drugs while caring

1The State moved to strike the father’s petition on appeal for failure to comply with appellate rules, namely the twenty-page limit. See Iowa R. App. P. 6.201(1)(c). The supreme court granted the motion and directed the father to file an amended petition. The father moved for reconsideration, generally arguing the limitation would prevent him from presenting all of his arguments and would violate due process. The grant of the State’s motion to strike was confirmed by a three-justice panel. The panel noted our ability to set the matter for full briefing. See Iowa R. App. P. 6.205(1) In his petition on appeal, the father requests we set the matter for full briefing because “20 pages is not enough to discuss and argue all of these issues.” Upon our de novo review, we find the limit to be adequate and deny the request. 3

for C.W. and domestic violence in the child’s presence. The child was removed

from the parents’ care and was ultimately placed with the maternal grandfather. It

was later discovered the mother was pregnant with another child. Investigation

revealed a history of domestic violence between the parents. The father was

arrested in September upon two counts of domestic abuse assault, one causing

bodily injury and involving strangulation, and the other while displaying a

dangerous weapon. The child was adjudicated a child in need of assistance

(CINA). A protective order was entered prohibiting the father from contact with the

mother and child.

By the time of the dispositional hearing in November, the child was placed

with the mother in inpatient treatment. The father had yet to engage in services.

By January 2019, the mother was bedridden in a hospital due to complications with

her pregnancy. The maternal grandfather took over caring for the child. The same

month, the father pled guilty to one count of domestic abuse assault and was

sentenced to probation. The mother gave birth to the new baby in March. By the

time of the review hearing the same month, the father still had not begun to

meaningfully participate in services. Around the time of the review hearing, the

mother was released from the hospital with her new baby and resumed care of

C,W. In April, however, the mother was diagnosed with cancer and returned to the

hospital, where she reported she would remain indefinitely. The child returned to

the care of family members.

In light of the mother’s illness, the father reported his desire to begin

engaging in services. By this point, however, DHS had modified its permanency-

goal recommendation to termination as to the father. The father did not follow 4

through on his stated desire to engage in services. Following a permanency

hearing, the court directed the State to initiate termination proceedings as to the

father. Following the State’s termination petition, the court set the matter for trial

on June 19. The father was arrested on new charges in May. He remained in jail

through the time of the termination trial.

On May 22, the father moved for a continuance of the trial, citing the

mother’s illness. Thereafter, the mother passed away. On June 4, he filed a

motion requesting the court to enter an order directing the DOC to provide him

records concerning mental-health and substance-abuse evaluations he allegedly

underwent while he was in a residential correctional facility between February and

April of 2018. The court set both motions for hearing on June 7. The court denied

the motion to continue and the father’s request that the DOC be ordered to provide

records. As to the records request, the court concluded the records related to

before the initiation of the CINA proceeding and, after initiation, the father declined

to obtain new evaluations as ordered. The court found no relevance in the stale

evaluations.2

The father’s lack of participation in services continued, after which he

requested he be provided services in jail. The matter proceeded to trial as

scheduled on June 19. The morning thereof, the father’s counsel moved for a

continuance. Counsel based the motion on (1) the father recently identifying

witnesses, his mother, adult daughter, and “possibly a third witness”; (2) his

2The telephonic hearing was unreported and a ruling on the motions was not documented at that time. The court stated its reasons for the rulings on the motions during the termination trial and in its termination order, and documented it had ruled during the telephonic hearing. 5

inability to consult with his client given the venue of the trial; (3) uncertainty

concerning the father’s “legal situation as far as his criminal charges”; and (4) his

desire to file a recent mental-health evaluation and allow the father to undergo a

substance-abuse evaluation. All other parties resisted. The court denied the

motion.

Thereafter, the father’s counsel asked for the county attorney to make a

clarification as to her petition for termination, noting the petition alleged termination

to be appropriate under Iowa Code section 232.116(1)(f) (2019), which requires

proof a child is four years of age or older, and pointing out the child had yet to

reach that age. The State moved to amend its petition to allege termination under

section 232.116(1)(h), which has a similar elementary makeup to paragraph (f),

with the exception of the age of the child and the required duration of removal. The

father’s counsel responded the amendment would be a “radically different” and

“substantial change” that he had not prepared to defend against and renewed his

request for a continuance on due process grounds for lack of adequate notice.

The court rejected the motion and allowed the amendment.

Thereafter the State requested the court to take judicial notice of a number

of court files. Among them were a proceeding in which the father’s parental rights

were terminated as to another child. The father objected on relevance grounds.

The court overruled the objection. The State then requested the court to take

judicial notice of the criminal file resulting in the father’s January 2019 conviction

of domestic abuse assault. The father’s relevancy objection was overruled.

Finally, the State requested the court to judicially notice a pending felony criminal 6

case. The father objected on the ground that the matter was “hearsay, it’s

unproven, and it’s not relevant.” Again, the court overruled the objection.

The father was unable to complete the presentation of his evidence in the

time allotted for the hearing. As a result, the trial was continued until July 24. On

the second day of trial, the father’s mother and adult daughter testified on his

behalf.

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

Code section 232.116(1)(e) and (h). Other than the periods in which the child was

in the mother’s care during the proceedings, the child has remained in the care of

her maternal grandfather, where she is thriving. The child is integrated into the

home, and the maternal grandfather is willing and able to adopt. As noted, the

father appeals.

II. Standard of Review

We review termination-of-parental-rights proceedings 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, 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).

III. Analysis

A. Denial of Motions to Continue

We review denials of continuance motions for discretionary abuse “and will

only reverse if injustice will result to the party desiring the continuance.” In re C.W.,

554 N.W.2d 279, 281 (Iowa Ct. App. 1996). “Denial of a motion to continue must

be unreasonable under the circumstances before we will reverse.” Id. A finding 7

of unreasonableness will only surface when the “court exercises its discretion ‘on

grounds or for reasons clearly untenable or to an extent clearly unreasonable.’”

See State v. Walker, 935 N.W.2d 874, 877 (Iowa 2019) (citation omitted). Because

“nonprejudicial error is never ground for reversal on appeal,” reversal is not

required if an abuse of discretion occurred but was harmless. Struve v. Struve,

930 N.W.2d 368, 378 (Iowa 2019) (citation omitted).

As to the court’s denial of his motions to continue the morning of trial, the

father argues such was unreasonable for the following reasons:

The court had an attorney telling it that the attorney needed more time to gather evidence and witnesses on behalf of his client, a completely different ground was being added to the petition on the day of trial, the State was asking for the court to take judicial notice of cases that counsel had not reviewed and did not know anything about . . . , the trial was being held in judge’s chambers so counsel could not privately talk to his client, and [the father’s] wife had just died.

He also argues his due process rights were violated when the court allowed the

State to amend its petition and denied his motion to continue on the ground that

he was not prepared to defend against the new allegation.

Long story short, the pouring over of the trial to a second day more than a

month later renders any alleged abuse of discretion harmless. The State

presented its case on paper. Then the father began his case-in-chief but did not

complete it the first day of trial. Over objections by the State and guardian ad litem,

the court allowed the father a second day of trial. The father and counsel had more

time to compile evidence and ultimately offered the specific evidence they stated

their desire to present, testimony from his mother and adult daughter. He certainly

had sufficient time to prepare a defense as to the amended statutory ground for 8

termination, which only minimally differed from the initially alleged ground. As to

the judicially-noticed files, while he objected to the files being considered by the

court, the father did not request a continuance to review the files. Even if he had,

the additional month provided ample time to review the files. His complaint about

the venue of the hearing is likewise rejected. The county attorney and court

assured counsel and the father privacy would be afforded if necessary. Finally,

the father made no request for a continuance on the basis his wife just died. Even

if he had, she passed weeks prior, and the pair had discontinued their relationship

several months before the hearing. He did note the mother’s death was a “game

changer,” but the additional month of time was likewise sufficient for him to prepare

to address that circumstance. At the end of the day, the hearing was continued to

a second day, thus allowing the father further time to complete the tasks he

complains he was denied the opportunity of completing.

Without deciding whether the court abused its discretion, we conclude if

there was any error, it was harmless, as the father was not prejudiced. See Id.;

C.W., 554 N.W.2d at 281. We thus affirm the juvenile court’s denials of the father’s

motions to continue.

B. Denial of Motion for Records

Next, the father argues the court erred in denying his motion for records

from the DOC. He argues the denial violated his due process rights. We have no

record3 of the constitutional argument being raised or decided below, so error is

3 The hearing on the father’s motion for the records was not reported. As the appellant, it was the father’s “duty to provide a record on appeal affirmatively disclosing the alleged error relied upon,” and we will not speculate as to what went on at the hearing. In re F.W.S., 698 N.W.2d 134, 136 (Iowa 2005). 9

not preserved. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a

fundamental doctrine of appellate review that issues must ordinarily be both raised

and decided by the district court before we will decide them on appeal.”); In re B.E.,

875 N.W.2d 181, 186 (Iowa Ct. App. 2015) (noting error-preservation obligation

applies to constitutional issues). The father’s request was essentially a discovery

motion.4 We review rulings on such motions for an abuse of discretion. In re A.M.,

856 N.W.2d 365, 370 (Iowa 2014). As noted, an abuse of discretion occurs when

the “court exercises its discretion ‘on grounds or for reasons clearly untenable or

to an extent clearly unreasonable.’” Walker, 935 N.W.2d at 877 (citation omitted).

In his motion, the father alleged he “received a mental health evaluation

and/or a substance abuse evaluation when he resided” in a residential facility

between February and April of 2018. He argued the records would be relevant to

his defense. The juvenile court disagreed, noting the evaluations allegedly

occurred before the initiation of the CINA case and the father refused to obtain

new evaluations as ordered. Upon our review, we are unable to say the court

exercised its discretion on clearly untenable reasons or to an extent clearly

unreasonable. Assuming the evaluations occurred—which is unclear, given his

inability to provide any concrete evidence they occurred other than bare

allegations—they would have occurred four to six months before the initiation of

the CINA proceeding. The existence of the evaluations would not have changed

the fact that the father wholly failed to engage in services and obtain new

4 Because the DOC was not a party to the proceeding, we question whether the discovery motion was a proper vehicle to obtain the records. No party raised that issue, and the court resolved the motion on other grounds. 10

evaluations in light of ongoing concerns regarding his suitability as a parent. We

affirm the denial of the father’s motion.

C. Judicial Notice

The father next complains of the juvenile court taking judicial notice of the

extraneous court files. He again claims said notice violated his due process rights.

Again, the due process claim was not raised or decided below and is thus not

preserved. See Meier v. 641 N.W.2d at 537; B.E., 875 N.W.2d at 186. He also

echoes his argument the files were not relevant. The juvenile court specifically

noted it did not consider the two criminal files. As such, taking judicial notice of

them was harmless. The court also noted it reviewed the prior termination-of-

parental-rights file “for the limited purpose of determining the code sections that

[the other child] was adjudicated under.” That matter was certainly relevant to the

State’s allegation termination was appropriate under section 232.116(1)(d). See

Iowa Rs. Evid. 5.401, .402. In any event, we find no reversible error because we

arrive at the same result without resort to the judicially noticed files. See In re

Adkins, 298 N.W.2d 273, 278 (Iowa 1980).

D. Sufficiency of the Evidence

The father challenges the sufficiency of the evidence supporting the

statutory grounds for termination cited by the juvenile court, Iowa Code section

232.116(1)(e) and (h). “On appeal, we 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 section

232.116(1)(h), the father only challenges the State’s establishment of the final

element of that provision—that the child could not be returned to his care at the 11

time of the termination hearing. See Iowa Code § 232.116(1)(h)(4) (requiring clear

and convincing evidence that the child cannot be returned to the custody of the

child’s parents at the present time); D.W., 791 N.W.2d at 707 (interpreting the

statutory language “at the present time” to mean “at the time of the termination

hearing”).

The evidence was clear and convincing the child could not be returned to

the father’s care at the time of the termination hearing. First, he was incarcerated

at the time. The child obviously could not be placed with him in jail. Further, the

father has a long history of substance abuse and engaging in criminal activities.

He wholly failed to participate in services to remedy the ongoing concerns

regarding his suitability as a parent. We find the evidence sufficient.

E. Best Interests

The father argues termination is not in the child’s best interests because he

loves the child “and there is a closeness there.” The father does not address the

factors we consider in determining whether termination is in a child’s best interests.

Having given “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),

we conclude termination is in the child’s best interests. The father has been given

ample time to get his affairs in order, and this 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) (“It is simply not in the best interests of children to continue to keep

them in temporary foster homes while the natural parents get their lives together.”

(quoting In re C.K., 558 N.W.2d 170, 175 (Iowa 1997))). The child is in a relative 12

placement that is willing to adopt. The child is integrated into this familial setting

and is thriving. Continued stability and permanency in this home are in this child’s

best interests. See Iowa Code § 232.116(2)(b); cf. In re M.W., 876 N.W.2d 212,

224–25 (Iowa 2016) (concluding termination was in best interests of children where

children were well-adjusted to placement, the placement parents were “able to

provide for their physical, emotional, and financial needs,” and they were prepared

to adopt the children).

To the extent the father argues for application of the permissive statutory

exception to termination contained in section 232.116(3)(c), we find the evidence

insufficient to show “termination would be detrimental to the child . . . due to the

closeness of the parent-child relationship.” See In re A.S., 906 N.W.2d 467, 476

(Iowa 2018) (noting parent bears burden to establish exception to termination).

F. Reasonable Efforts

Finally the father argues the State failed to make reasonable efforts at

reunification. We bypass the State’s error-preservation concern and proceed to

the merits. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999). DHS “shall make

every reasonable effort to return the child to the child’s home as quickly as possible

consistent with the best interests of the child.” Iowa Code § 232.102(9). “A child’s

health and safety shall be the paramount concern in making reasonable efforts.”

Id. § 232.102(12)(a). Our focus is on the services provided and the father’s

response, not on services he now complains were not provided. In re C.B., 611

N.W.2d 489, 494 (Iowa 2000). DHS need only provide those services that are

reasonable under the circumstances. See In re S.J., 620 N.W.2d 522, 525 (Iowa

Ct. App. 2000). Here, the State offered reasonable reunification services. The 13

father failed to participate in them. Further, a no-contact order was in place, and

the juvenile court ordered the father to have no contact with the child until he

engaged in services. The father did not do so. The father largely complains he

was not allowed visitation. The orders for no contact prevented DHS from allowing

visitation. We reject the father’s reasonable-efforts challenge.

IV. Conclusion

We affirm the termination of the father’s parental rights.