IN THE COURT OF APPEALS OF IOWA
No. 21-0308 Filed June 30, 2021
IN RE THE INTEREST OF D.C., Minor Child,
P.D., Father, Appellant.
Appeal from the Iowa District Court for Polk County, Romanda Belcher,
District Associate Judge.
A father appeals the district court order terminating his parental rights.
AFFIRMED.
Nancy L. Pietz, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Paul White of Juvenile Public Defender, Des Moines, attorney and
guardian ad litem for minor child.
Considered by Bower, C.J., Schumacher, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021). 2
SCHUMACHER, Judge.
A father appeals the district court order terminating his parental rights to his
young son, D.C. We find the father’s arguments as to the statutory grounds relied
on by the district court to be unpreserved. On our de novo review, we determine
termination of the father’s parental rights is in D.C.’s best interests and a
permissive exception should not be applied. We affirm the decision of the district
court.
I. Standard of Review
Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d
764, 773 (Iowa 2012). The State must prove its allegations for termination by clear
and convincing evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). “‘Clear
and convincing evidence’ means there are no serious or substantial doubts as to
the correctness [of] conclusions of law drawn from the evidence.” Id. Our primary
concern is the best interests of the child. In re J.S., 846 N.W.2d 36, 40 (Iowa
2014).
II. Background Facts & Proceedings
D.C., born in late November 2019, came to the attention of the Iowa
Department of Human Services (DHS) at birth due to DHS involvement with his
three-year-old brother. D.C. was removed from parental custody on November 27,
2019. He has never returned home and there have been no trial home placements.
While originally placed in foster care, he was moved to his paternal grandmother’s
home approximately five months after removal, where he remains. At the time of
the termination hearing, D.C.’s legal custody had been placed with his paternal
grandmother. 3
D.C. was adjudicated to be a child in need of assistance (CINA) on
December 7, 2018. A dispositional hearing was held on April 16, 2020. Following
a permanency hearing held on December 4, the district court directed the State to
initiate termination proceedings.
The father’s mental health dominated concerns throughout the underlying
CINA proceeding. He was hospitalized on several occasions for mental-health
concerns. He relocated to different shelters, group homes, and other placements
during the CINA case. At the time of the termination hearing, his most recent
placement was in a group home in Ames. However, he was dismissed from such
placement due to uncontrollable behaviors and damage to the facility. The father
refused to sign releases, which would have allowed DHS to communicate with his
previous placements and providers. Further, the father was unstable at visits. He
displayed aggressive behaviors at a family team meeting. Law enforcement
notified DHS there was an active warrant for the father’s arrest due to the father
tampering with a gas stove in his apartment, thus creating a danger for himself and
others in the complex. Additionally, during visits with D.C., the father would
become upset. During one visitation session, the father threatened to bring a
weapon to DHS.
The father signed a sixteen-paragraph written consent to termination of
parental rights on January 13, 2021, prior to the termination hearing held on
February 2, which acknowledged D.C. could not be placed with the father. At the
termination hearing, the father initially waffled when questioned if he understood
everything contained in the executed written consent. The district court granted a
recess to allow the father an additional opportunity to discuss the release with his 4
counsel.1 Following the recess, a record was made wherein the father confirmed
his consent to termination, with the father’s attorney walking the father through the
consent.2 The father requested the court accept his consent to the termination.
The district court terminated the father’s parental rights pursuant to Iowa Code
section 232.116(1)(a) and (h) (2021).3
III. Analysis
A. Statutory Grounds
“When the juvenile court terminates parental rights on more than one
statutory ground, we may affirm the juvenile court’s order on any ground we find
supported by the record.” A.B., 815 N.W.2d at 774. In the instant appeal, both
grounds attacked by the father on appeal are resolved by a lack of error
preservation.
In the father’s brief, with respect to both statutory grounds, the father recites
error was preserved “when the Notice of Appeal was filed on March 8, 2021.” We
disagree. The father has failed to preserve his claim for our review on appeal. He
attacks the consent, alleging for the first time on appeal such was not a voluntary
and intelligent consent on his behalf. This is insufficient. “It is a fundamental
doctrine of appellate review that issues must ordinarily be both raised and decided
1 The father’s appellate counsel represented the father at the hearing on the State’s petition for termination of parental rights. At hearing, she indicated she had extensive communication with the father prior to his execution of the written release. 2 The father was the sole witness at the termination hearing. The State’s exhibits
were offered and admitted without objection from any party. No other party offered exhibits. The district court took judicial notice of the father’s written consent to termination without objection. 3 The mother’s parental rights were terminated. She does not appeal. 5
by the district court before we decide them on appeal.” Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002); see also A.B., 815 N.W.2d at 773 (“[T]he general
rule that appellate arguments must first be raised in the trial court applies to CINA
and termination of parental rights cases.”). Error is not preserved on this issue, as
the father asserts in his petition on appeal, by filing a timely notice of appeal. See
In re K.W., No. 15-0790, 2015 WL 4642786, at *1 (Iowa Ct. App. Aug. 5, 2015);
see also Thomas A. Mayes & Anuradha Vaitheswaran, Error Preservation in Civil
Appeals in Iowa: Perspectives on Present Practice, 55 Drake L. Rev. 39, 48 (2006)
(“While this is a common statement in briefs, it is erroneous, for the notice of appeal
has nothing to do with error preservation.” (footnote omitted)).
The error preservation rule is based on the notion that
[i]t is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider.
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IN THE COURT OF APPEALS OF IOWA
No. 21-0308 Filed June 30, 2021
IN RE THE INTEREST OF D.C., Minor Child,
P.D., Father, Appellant.
Appeal from the Iowa District Court for Polk County, Romanda Belcher,
District Associate Judge.
A father appeals the district court order terminating his parental rights.
AFFIRMED.
Nancy L. Pietz, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Paul White of Juvenile Public Defender, Des Moines, attorney and
guardian ad litem for minor child.
Considered by Bower, C.J., Schumacher, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021). 2
SCHUMACHER, Judge.
A father appeals the district court order terminating his parental rights to his
young son, D.C. We find the father’s arguments as to the statutory grounds relied
on by the district court to be unpreserved. On our de novo review, we determine
termination of the father’s parental rights is in D.C.’s best interests and a
permissive exception should not be applied. We affirm the decision of the district
court.
I. Standard of Review
Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d
764, 773 (Iowa 2012). The State must prove its allegations for termination by clear
and convincing evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). “‘Clear
and convincing evidence’ means there are no serious or substantial doubts as to
the correctness [of] conclusions of law drawn from the evidence.” Id. Our primary
concern is the best interests of the child. In re J.S., 846 N.W.2d 36, 40 (Iowa
2014).
II. Background Facts & Proceedings
D.C., born in late November 2019, came to the attention of the Iowa
Department of Human Services (DHS) at birth due to DHS involvement with his
three-year-old brother. D.C. was removed from parental custody on November 27,
2019. He has never returned home and there have been no trial home placements.
While originally placed in foster care, he was moved to his paternal grandmother’s
home approximately five months after removal, where he remains. At the time of
the termination hearing, D.C.’s legal custody had been placed with his paternal
grandmother. 3
D.C. was adjudicated to be a child in need of assistance (CINA) on
December 7, 2018. A dispositional hearing was held on April 16, 2020. Following
a permanency hearing held on December 4, the district court directed the State to
initiate termination proceedings.
The father’s mental health dominated concerns throughout the underlying
CINA proceeding. He was hospitalized on several occasions for mental-health
concerns. He relocated to different shelters, group homes, and other placements
during the CINA case. At the time of the termination hearing, his most recent
placement was in a group home in Ames. However, he was dismissed from such
placement due to uncontrollable behaviors and damage to the facility. The father
refused to sign releases, which would have allowed DHS to communicate with his
previous placements and providers. Further, the father was unstable at visits. He
displayed aggressive behaviors at a family team meeting. Law enforcement
notified DHS there was an active warrant for the father’s arrest due to the father
tampering with a gas stove in his apartment, thus creating a danger for himself and
others in the complex. Additionally, during visits with D.C., the father would
become upset. During one visitation session, the father threatened to bring a
weapon to DHS.
The father signed a sixteen-paragraph written consent to termination of
parental rights on January 13, 2021, prior to the termination hearing held on
February 2, which acknowledged D.C. could not be placed with the father. At the
termination hearing, the father initially waffled when questioned if he understood
everything contained in the executed written consent. The district court granted a
recess to allow the father an additional opportunity to discuss the release with his 4
counsel.1 Following the recess, a record was made wherein the father confirmed
his consent to termination, with the father’s attorney walking the father through the
consent.2 The father requested the court accept his consent to the termination.
The district court terminated the father’s parental rights pursuant to Iowa Code
section 232.116(1)(a) and (h) (2021).3
III. Analysis
A. Statutory Grounds
“When the juvenile court terminates parental rights on more than one
statutory ground, we may affirm the juvenile court’s order on any ground we find
supported by the record.” A.B., 815 N.W.2d at 774. In the instant appeal, both
grounds attacked by the father on appeal are resolved by a lack of error
preservation.
In the father’s brief, with respect to both statutory grounds, the father recites
error was preserved “when the Notice of Appeal was filed on March 8, 2021.” We
disagree. The father has failed to preserve his claim for our review on appeal. He
attacks the consent, alleging for the first time on appeal such was not a voluntary
and intelligent consent on his behalf. This is insufficient. “It is a fundamental
doctrine of appellate review that issues must ordinarily be both raised and decided
1 The father’s appellate counsel represented the father at the hearing on the State’s petition for termination of parental rights. At hearing, she indicated she had extensive communication with the father prior to his execution of the written release. 2 The father was the sole witness at the termination hearing. The State’s exhibits
were offered and admitted without objection from any party. No other party offered exhibits. The district court took judicial notice of the father’s written consent to termination without objection. 3 The mother’s parental rights were terminated. She does not appeal. 5
by the district court before we decide them on appeal.” Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002); see also A.B., 815 N.W.2d at 773 (“[T]he general
rule that appellate arguments must first be raised in the trial court applies to CINA
and termination of parental rights cases.”). Error is not preserved on this issue, as
the father asserts in his petition on appeal, by filing a timely notice of appeal. See
In re K.W., No. 15-0790, 2015 WL 4642786, at *1 (Iowa Ct. App. Aug. 5, 2015);
see also Thomas A. Mayes & Anuradha Vaitheswaran, Error Preservation in Civil
Appeals in Iowa: Perspectives on Present Practice, 55 Drake L. Rev. 39, 48 (2006)
(“While this is a common statement in briefs, it is erroneous, for the notice of appeal
has nothing to do with error preservation.” (footnote omitted)).
The error preservation rule is based on the notion that
[i]t is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider. Furthermore, it is unfair to allow a party to choose to remain silent in the trial court in the face of error, taking a chance on a favorable outcome, and subsequently assert error on appeal if the outcome in the trial court is unfavorable.
State v. Waterland, No. 19-0076, 2020 WL 824114, at *3 (Iowa Ct. App. Feb. 19,
2020) (quoting DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002)). We find any
alleged error concerning the statutory grounds relied on by the district court was
not preserved.
B. Best Interests and Permissive Exception
On appeal, the father, for the first time, also alleges termination was not in
the child’s best interests and alleges a permissive exception to termination should
be applied pursuant to Iowa Code section 232.116(3)(a), as a relative has custody
of the child. See In re T.N.M., 542 N.W.2d 574, 576 (Iowa Ct. App. 1995) (finding, 6
when a parent voluntarily and intelligently consents to the termination of her
parental rights at the time of the termination hearing, the consent is “binding if it is
in the best interest[s] of the child”).
The district court addressed both D.C.’s best interests and permissive
exceptions to termination pursuant to Iowa Code section 232.116(2) and (3) in the
termination order. In seeking out those best interests, we look to the child’s long-
range as well as immediate interests. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990).
This requires considering what the future holds for the child if returned to the
parents. Id. at 493–94. When making this decision, we look to the parents’ past
performance because it may indicate the quality of care the parent is capable of
providing in the future. Id. at 494. In considering the application of a permissive
factor pursuant to Iowa Code section 232.116(3), we note these factors “are
permissive, not mandatory.” In re A.M., 843 N.W.2d 100, 113 (Iowa 2014) (quoting
In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App. 2011)). “[O]ur consideration
must center on whether the child will be disadvantaged by termination, and
whether the disadvantage overcomes [the parent’s] inability to provide for [the
child’s] developing needs.” In re D.W., 791 N.W.2d 703, 709 (Iowa 2010).
At hearing, the father did not offer evidence to rebut the State’s exhibits,
which contained facts supporting the district court’s best interests findings. The
father did not request the court to consider the application of a permissive
exception to termination. The record is void of any evidence D.C. would be
disadvantaged by the termination of the father’s parental rights. The evidence
offered by the State supports a finding that termination is in D.C.’s best interests
and that a permissive exception should not be applied. D.C. is very young. He 7
has been out of parental custody since birth, a period of over a year at the time of
the February 2021 termination hearing. While he is in a relative placement, this
current placement desires to adopt the child. D.C. is described as attached to this
placement, his grandmother. A permanent home for D.C. is an advantage that
could not be assured by applying a permissive exception. We reject the father’s
arguments concerning best interests and the application of a permissive exception
to termination.
IV. Conclusion
The father’s arguments concerning the statutory grounds relied on by the
district court are unpreserved. Termination is in D.C.’s best interests and a
permissive exception should not be applied under these facts. We affirm the
termination of the father’s parental rights.