In the Interest of E.B., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 18-0486
Filed June 6, 2018

IN THE INTEREST OF E.B.,
Minor Child,

J.R., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor,

District Associate Judge.

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

AFFIRMED.

Martha L. Cox, Bettendorf, for appellant father.

Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant

Attorney General, for appellee State.

Marsha J. Arnold, Davenport, guardian ad litem for minor child.

Considered by Danilson, C.J., and Mullins and McDonald, JJ. Tabor, J.,

takes no part.
2

MULLINS, Judge.

A father appeals the termination of his parental rights to his child.1 He

challenges the grounds for termination of his parental rights and contends the

juvenile court erred in refusing to consider his motion to modify placement prior to

termination.2

The parents of the child in interest have a history of founded abuse reports,

domestic violence, and anger-management and mental-health issues. The Iowa

Department of Human services has been providing services to these parents since

2015 in relation to a number of their children. The child in interest was born in

January 2017. At the time of the child’s birth, the State had previously petitioned

to terminate the mother’s parental rights as to two of the child’s siblings. 3 Two

1
Regular readers of the opinions of this court will notice striking similarities between the
legal analysis contained in this opinion and that contained in another being filed
simultaneously. Cf. In re C.R., No. 18-0592, 2018 WL _____ (Iowa Ct. App. June 6, 2018).
This is because these cases share the same appellant who forwards the same— largely
verbatim—arguments in the separate cases. Although the factual and procedural histories
of the separate cases vary, albeit minimally, and we limit our analysis of each case to its
record alone, the legal principles employed still apply equally to each case.
2
As he did in a separate appeal concerning termination of his parental rights to another
of his children, the father also contends the juvenile court “erred when it did not consider
the evidence for purposes of a permanency hearing and only a termination of parental
rights hearing, therefore waiving the father’s right to request six more months to reunify
with his child.” As we do in the other appeal, we find no merit in the father’s argument that
the juvenile court’s decision to conduct the termination hearing prior to a permanency
hearing effectually foreclosed his right to request a six-month extension, as such a request
may be made in a termination hearing and in fact was made by the father at the termination
hearing in this case. See Iowa Code § 232.117(5) (2017) (providing if, following a
termination hearing, the court does not terminate parental rights but finds there is clear
and convincing evidence that the child is a child in need of assistance, the court may enter
an order in accordance with section 232.104(2)(b)); see also id. § 232.104(2)(b) (affording
the juvenile court the option to continue placement of a child for an additional six months
if the court finds “the need for removal . . . will no longer exist at the end of the additional
six-month period”).
3
The mother’s parental rights to the two siblings were terminated later that month. The
appellant, J.R., is the biological father of one of these children, and his parental rights to
that child were also terminated. The father also consented to the termination of his
parental rights as to two of his other children in March 2017.
3

days after the child’s birth, the mother executed a voluntary placement agreement

placing the child in foster care with her siblings. In March, the juvenile court

adjudicated the child to be a child in need of assistance and continued the foster-

care placement.4 Following a dispositional hearing in April, the court again

continued the foster-care placement. The child has been in the same foster-to-

adopt home all of her life and is bonded with her foster parents.

Beginning in April, the father was allowed visitation with the child three times

per week. In May, the father was arrested on a charge of domestic abuse assault

with the use or display of a weapon. Between the commencement of visitation and

the father’s arrest, he only attended three visitations with the child. The father

made no attempts to contact the child after the commencement of his

incarceration. At the time of the termination hearing in February 2018, the father

was still incarcerated. The father testified his discharge date was to be in

November 2018, but he expected to be paroled in April. However, another witness

testified the father is to remain incarcerated until October 2019. This is the father’s

fourth term of imprisonment since 2009.

In June 2017, the State filed a petition to terminate the parental rights of

both parents. On December 20, the father filed a motion to “modify disposition

and/or modify placement.” In his motion, the father stated his mother and her

husband are licensed foster parents and requested that the child be placed with

them. A hearing was scheduled to consider the termination petition, permanency,

and the father’s modification motion. At the commencement of the hearing in

4
At the time of the adjudicatory order, the father was one of two putative fathers. Paternity
testing in late March identified him as the child’s biological father.
4

February 2018, the juvenile court noted its intention to begin with the termination

issue, noting the outcome on that issue would impact whether a permanency

hearing and consideration of the father’s modification motion would be necessary.

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

Code section 232.116(1)(e), (g), and (h). The father filed a motion to reconsider,

enlarge, or amend requesting the court to allow him an additional six months

toward reunification and to grant his motion to modify placement. The juvenile

court denied the motion, and the father appealed.5

Appellate review of termination-of-parental-rights proceedings is de novo.

In re A.S., 906 N.W.2d 467, 472 (Iowa 2018) (quoting In re A.M., 843 N.W.2d 100,

110 (Iowa 2014)). Our primary consideration is the best interests of the child. In

re J.E., 723 N.W.2d 793, 798 (Iowa 2006).

First, the father challenges the grounds for termination of his parental rights

under section 232.116(1)(e), (g), 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 paragraph (h), the father does not challenge the sufficiency of the

evidence, argue termination is not in the best interests of the child, or contend a

statutory exception should be applied to preclude termination. See Iowa Code

§ 232.116(1)–(3). He only argues he was denied due process when the juvenile

court held a combined termination and permanency hearing and the circumstances

5
The mother’s parental rights were also terminated. She does not appeal.
5

render termination under paragraph (h) inappropriate. He states his argument as

follows:

[W]hen any Termination of Parental Rights Hearing is combined with
a Permanency Hearing, it renders the request for six more months
to reunify, as permitted by Iowa Code Section 232.104(2)(b),
meaningless because, if the child cannot be returned to the parent’s
custody that day, a ground for termination of parental rights exists.
In order to afford parents the right to request more time to reunify, as
permitted by Iowa Code Section 232.104(2)(b), Permanency
hearings cannot be combined with Termination of Parental Rights
Hearings. Combining such hearings violates a parent’s right to due
process of law.
Therefore, the district court erred when it terminated the
father’s parental rights pursuant to Iowa Code Section
232.116[(1)](h) because he was not afforded due process of law.

However, this due process argument was neither raised in, nor decided by, the

juvenile court. The argument is therefore not preserved for our review. 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 decided them on appeal.”); State v. Mulvany, 600

N.W.2d 291, 293 (Iowa 1999) (“[W]e require error preservation even on

constitutional issues.”). Furthermore, the father has failed to provide us with any

legal authority to support his position. Therefore, we alternatively deem the

argument waived. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in

support of an issue may be deemed waiver of that issue.”); see also In re C.B.,

611 N.W.2d 489, 492 (Iowa 2000) (“A broad, all encompassing argument is

insufficient to identify error in cases of de novo review.”); Ingraham v. Dairyland

Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974) (“To reach the merits of this case

would require us to assume a partisan role and undertake the appellant’s research

and advocacy. This role is one we refuse to assume.”).
6

Because the father’s challenge to termination under paragraph (h) is both

waived and not preserved and the father does not challenge the sufficiency of the

evidence, argue termination is not in the best interests of the child, or contend a

statutory exception should be applied to preclude termination, we affirm the

termination of his parental rights pursuant to section 232.116(1)(h), the grounds

for which we find supported by clear and convincing evidence. See In re P.L., 778

N.W.2d 33, 40 (Iowa 2010) (indicating that if a party does not challenge a particular

step in the three-step termination framework, appellate courts need not address

the issue).

Next, the father contends the juvenile court erred in refusing to consider his

motion to modify placement prior to termination. He argues placing the child with

his mother, a relative, is less restrictive than continuing the placement of the child

in her foster-to-adopt home, where she has resided all of her life.

We acknowledge that “chapter 232 favors relative placements over

nonrelative placements.” In re N.M., 528 N.W.2d 94, 97 (Iowa 1995). Had the

father moved for modification of placement earlier in the case, he would be in a

better position to argue on appeal that the juvenile court was required to consider

the motion prior to termination. Here, however, the father did not move to modify

placement until roughly six months after the initiation of termination proceedings

and less than two months before the termination hearing. At the termination

hearing, after the father’s counsel requested the court to “start with the

permanency” issue, the juvenile court noted its intention to receive evidence on

the termination issue, noting the outcome on that issue would impact whether a

permanency hearing and consideration of the father’s modification motion would
7

be necessary. The court made the necessary findings for termination and

thereafter denied the father’s post-hearing motion to reconsider the modification

motion.

We find the juvenile court’s decision to reserve ruling on the modification

motion pending termination was not inappropriate. See In re D.S., 806 N.W.2d

458, 472 (Iowa Ct. App. 2011) (concluding juvenile court acted appropriately in

declining to address placement issue until after termination hearing where issue of

placement was not raised until well after removal and after termination proceedings

had been initiated). Furthermore, “[w]hen a court terminates parental rights, there

is no statutory preference for placement with a relative.” A.S., 906 N.W.2d at 477.

We affirm the juvenile court.

AFFIRMED.