In the Interest of D.M.-N., Minor Child

• Court: Court of Appeals of Iowa
• Decided: August 17, 2022
• Docket: 22-0886
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0886 Filed August 17, 2022

IN THE INTEREST OF D.M.-N., Minor Child,

M.M., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Mary Jane

Sokolovske, Judge.

A father appeals the termination of his parental rights. AFFIRMED.

John S. Moeller of John S. Moeller, P.C., Sioux City, for appellant father.

Thomas J. Miller, Attorney General, and Chandlor Collins, Assistant

Attorney General, for appellee State.

Joseph Kertels of Juvenile Law Center, Sioux City, attorney and guardian

ad litem for minor child.

Considered by Badding, P.J., Chicchelly, J., and Gamble, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022). 2

GAMBLE, Senior Judge.

A father appeals the termination of his parental rights to his child, D.M.-N.

He challenges the statutory grounds authorizing termination and argues

termination is not in D.M.-N.’s best interest. We affirm.

We review termination proceedings de novo. In re Z.P., 948 N.W.2d 518,

522 (Iowa 2020). “We will uphold an order terminating parental rights where there

is clear and convincing evidence of the statutory grounds for termination. Evidence

is clear and convincing when there is no serious or substantial doubt as to the

correctness of the conclusions of law drawn from the evidence.” In re T.S., 868

N.W.2d 425, 431 (Iowa Ct. App. 2015) (internal citation omitted).

We generally use a three-step analysis to review the termination of a

parent’s rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). We consider:

(1) whether grounds for termination have been established, (2) whether

termination is in the children’s best interests, and (3) whether we should exercise

any of the permissive exceptions to termination. Id. at 472–73.

First, we consider the father’s challenge to the statutory grounds authorizing

termination. Here, the juvenile court terminated the father’s rights to D.M.-N. under

Iowa Code section 232.116(1)(b) and (h) (2022). When the juvenile court

terminates under multiple statutory grounds, as occurred here, we may affirm on

any ground satisfied. In re J.D., No. 21-0391, 2021 WL 3379037, at *1 (Iowa Ct.

App. Aug. 4, 2021). We choose to address paragraph (h). Section 232.116(1)(h)

authorizes termination when:

(1) The child is three years of age or younger. (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96. 3

(3) The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time.

The father limits his challenge to the fourth element, whether D.M.-N. can

be safely returned to his care. Iowa Code § 232.116(1)(h)(4). This element is

satisfied when the State establishes the child cannot be safely returned to the

parent at the time of the termination hearing. See In re T.W., No. 20-0145, 2020

WL 1881115, at *2–3 (Iowa Ct. App. Apr. 15, 2020). Here, D.M.-N. clearly could

not be returned to the father’s care at the time of the termination hearing because

the father was incarcerated.1 See In re C.D., No. 20-0743, 2020 WL 4516081, at

*1 (Iowa Ct. App. Aug. 5, 2020) (“Because C.D.’s father was incarcerated at the

time of the termination trial, the child could not be returned to him.”). So a statutory

ground for termination is satisfied.

Next, we address our steps two and three in tandem. Step two centers on

the child’s best interest. See Iowa Code § 232.116(2). When making a best-

interest determination, we “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.” In re P.L.,

778 N.W.2d 33, 40 (Iowa 2010) (quoting Iowa Code § 232.116(2)). “It is well-

settled law that we cannot deprive a child of permanency after the State has proved

a ground for termination under section 232.116(1) by hoping someday a parent will

1The father testified that, at the earliest, he would get out in another six, seven, or eight months. He is also facing pending federal charges. 4

learn to be a parent and be able to provide a stable home for the child.” Id. at 41.

Step three permits the court to apply permissive exceptions to forgo termination in

certain circumstances. See Iowa Code § 232.116(3). However, the burden of

establishing an exception rests with the parent. See A.S., 906 N.W.2d at 476.

Here, the father argues termination is not in D.M.-N.’s best interest because

he lived with D.M.-N. for seven months prior to his incarceration and has a bond

with D.M.-N. See Iowa Code § 232.116(3)(c) (recognizing a strong parent-child

bond may preclude termination). But D.M.-N. is integrated into her foster home

with the intention that they adopt her. See id. § 232.116(2)(b). Even the father

said at the termination hearing that the foster family “really really love[s] her. It’s a

very good environment, and [he] most definitely approve[s] of her being placed

there.” We think D.M.-N. will best find stability and permanency through

termination and adoption. So we conclude termination is in D.M.-N.’s best interest

and decline to apply a permissive exception to termination.

AFFIRMED.