In the Interest of K.O., Minor Child

• Court: Court of Appeals of Iowa
• Decided: September 2, 2020
• Docket: 20-0832
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0832 Filed September 2, 2020

IN THE INTEREST OF K.O., Minor Child,

A.O., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Susan Cox, District

Associate Judge.

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

AFFIRMED.

Thomas Hurd of Law Office of Thomas Hurd, Des Moines, for appellant

father.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Sarah Elizabeth Dewein, Urbandale, attorney and guardian ad litem for

minor child.

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

VAITHESWARAN, Presiding Judge.

A father appeals the termination of his parental rights to a child born in 2018.

He contends (1) “[t]he District Court failed to apply the clear and convincing

evidence standard when finding the underlying facts in its decision to terminate

parental rights as required by Iowa Code 232.117(2) and (3)” (2019) and (2) the

State failed to prove “a nexus between [his] struggles and his ability and

willingness to be a safe parent.” The State responds that this court lacks

jurisdiction because the notice of appeal was not timely filed.

We begin with the jurisdictional issue. “A notice of appeal from a final order

or judgment entered in Iowa Code chapter 232 termination-of-parental-rights or

child-in-need-of-assistance proceedings must be filed within 15 days after the filing

of the order or judgment.” Iowa R. App. P. 6.101(1)(a). The father’s notice of

appeal was concededly not filed within that time period, and counsel agreed the

omission was his error.

In the wake of the error, counsel moved for a delayed appeal. The State

filed a resistance and motion to dismiss. The supreme court ordered the motions

submitted with the appeal.

After reviewing the motion and affidavits filed by the father and his attorney,

as well as the State’s response, we exercise our inherent authority to grant the

motion for delayed appeal. See In re C.J.P., No. 15-1814, 2016 WL 5930836, at

*2 (Iowa Ct. App. Oct. 12, 2016) (“Our court has held the inherent power to grant

a delayed appeal extends to termination of parental rights cases under chapter

232.” (citing In re A.B., No. 99-0227, 1999 WL 976097, at *3 (Iowa Ct. App. Oct.

27, 1999))). We proceed to the merits. 3

As noted, the father preliminarily contends the district court failed to apply

the “clear and convincing” standard to its fact findings. We are unpersuaded by

the argument because it is not the district court’s obligation to apply the standard

but the State’s obligation to prove the grounds for termination by that standard.

See In re A.S., 906 N.W.2d 467, 476 (Iowa 2018) (quoting In re J.W.D., 456

N.W.2d 214, 217 (Iowa 1990)). The father’s attorney conceded as much, asserting

in his opening statement to the district court that “the burden is on the State to

prove by clear and convincing evidence that the child cannot be returned to the

home of” the father.

We turn to the father’s second argument, which is essentially a challenge

to the evidence supporting the ground for termination cited by the district court.

That ground, Iowa Code section 232.116(1)(h), requires proof of several elements,

including proof the child cannot be returned to parental custody.

There is little dispute about the facts. The child tested positive for cocaine

at birth. The child’s mother had a history of substance abuse.1 The father was a

registered sex offender as a result of a conviction for aggravated criminal sexual

abuse of a child between the ages of thirteen and sixteen. He lived with the child’s

mother, in contravention of a requirement precluding contact with children. He also

had several convictions for assault causing injury, and the record is replete with

evidence of assaults he committed on the child’s mother and on other women with

whom he lived. The father’s criminal history also includes several convictions for

operating while intoxicated.

1 The district court terminated her parental rights, and she has not appealed. 4

The State sought and obtained the child’s removal from parental care. The

child remained out of the father’s care throughout the child-in-need-of-assistance

and termination proceedings.

At the time of the termination hearing, the father was jailed on new charges.

He appeared at the hearing but did not testify. The department social work

supervisor overseeing the case reported that the father “had minimal interactions

with [the child] due to his incarceration throughout this case.” She noted that he

“ha[d] been in and out of custody” and was “not available to parent [the child] and

ha[d] not demonstrated his parental capacity to safely care for his child.” The

supervisor expressed concern that “his underlying substance abuse needs [were

not] addressed and he [was] at continued risk of abuse of substances.” She

concluded that “it [was] not reasonably likely that” he would “adequately address”

his “mental health, substance abuse, domestic violence or parenting needs” or

“successfully demonstrate the stability” needed for the child. A court appointed

special advocate expressed similar concerns. She noted that the father “blew

positive” on a preliminary breath test “and then fled” and he was “incarcerated four

times in the [previous] six months.” She recommended termination of his parental

rights.

On our de novo review, we agree with the district court’s determination that

the father “continues to struggle with violence, substance abuse, criminality,

incarceration, and instability.” We also conclude that the State established the

requisite nexus between the father’s behaviors and his ability to parent the child

and have the child returned to his custody.