In the Interest of D.C., Minor Child

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).
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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.
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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
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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.
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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,
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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
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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.

AFFIRMED.