In the Interest of N.H., Minor Child, S.H., Father

IN THE COURT OF APPEALS OF IOWA

No. 15-0691
Filed September 23, 2015

IN THE INTEREST OF N.H.,
Minor Child,

S.H., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Daniel L.

Block, Associate Juvenile Judge.

The father appeals the termination of his parental rights to his child, N.H.

AFFIRMED.

Mark Milder, Waverly, for appellant father.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant

Attorney General, Linda Fangman, County Attorney, and Steven Halbach and

Kathleen Hahn, Assistant County Attorneys, for appellee State.

Melissa Anderson Seeber of the Waterloo Juvenile Public Defender,

Waterloo, attorney and guardian ad litem for minor child.

Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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VOGEL, Judge.

The father appeals the termination of his parental rights to his daughter,

N.H. While conceding the grounds for termination under Iowa Code section

232.116(1)(h) (2015) were proved, he asserts the court should have granted his

request to be personally or telephonically present at the hearing, and that

termination is not in the child’s best interests. He further argues the court

improperly denied his request for a deferral of permanency or, alternatively, the

entry of a guardianship order. We conclude no constitutional rights were

violated, as the court offered him the opportunity to testify telephonically, which

he declined; furthermore, our case law does not require the parent to be present

to satisfy due process. Additionally, due to the history of domestic violence

perpetrated against the mother by the father, as well as the violence directed at

N.H., termination of the father’s parental rights is in N.H.’s best interests.

Consequently, we affirm the order of the district court.

I. Factual and Procedural Background

N.H., born August 2013, first came to the attention of the Department of

Human Services (DHS) due to allegations of domestic violence in the home. The

father alleged the mother had attacked him. DHS investigated and found the

father had perpetrated the domestic violence, not the mother.

The mother, the father, and N.H. were residing together along with the

mother’s two older children, M.G. and B.G.,1 who have a different biological

father. On July 9, 2014, the mother’s body was found and it was determined she

1
M.G., born March 2006, and B.G., born November 2007, were removed at the same
time as N.H. They are also residing in the care of the maternal relatives.
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was murdered. M.G. and B.G. reported being present at the time of the

homicide, and that N.H.’s father killed the mother. The DHS worker also testified

the father’s relatives had informed her that the father had come to their home and

told them he had killed the mother. The father was taken into police custody, and

the State charged him with first-degree murder. As of the date of the termination

hearing, there was no disposition of the criminal charges. At all times during the

pendency of these proceedings, the father has remained in jail and has had no

contact with N.H.

N.H. was removed from the home on July 10, 2014, and placed in foster

care. DHS then identified relatives who could care for N.H., and she was moved

to the care of her maternal relatives, where she remained at the time of the

termination hearing. She was adjudicated in need of assistance (CINA) on

August 14, 2014. A permanency hearing was held on January 15, 2014, and the

district court directed the State to file a petition for termination of the father’s

parental rights.

The State’s petition was filed on February 9, 2015. The termination of

parental rights hearing was held on March 12, 2015, following the denial of the

father’s motion for a continuance and a request to appear personally or

telephonically. The father was represented by counsel throughout the hearing;

additionally, the father declined the court’s offer to allow him to testify. On April

3, 2015, the district court entered an order terminating the father’s parental rights

pursuant to Iowa Code section 232.116(1)(e) and (h). The father appeals.
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II. Standard of Review

We review termination proceedings de novo. In re S.R., 600 N.W.2d 63,

64 (Iowa Ct. App. 1999). The grounds for termination must be proved by clear

and convincing evidence. Id. Our primary concern is the child’s best interest. Id.

When the court terminates parental rights on more than one statutory ground, we

only need to find grounds to terminate under one of the sections cited by the

court to affirm. Id. To the extent we are reviewing a ruling on the father’s motion,

our review is for an abuse of discretion, though our review of constitutional claims

is de novo. See In re E.H., III, 578 N.W.2d 243, 245–46 (Iowa 1998).

III. Termination

The father does not contest that N.H. cannot be returned to his care,

pursuant to Iowa Code section 232.116(1)(h). Consequently, we affirm the

district court’s termination of the father’s parental rights under paragraph (h).

See S.R., 600 N.W.2d at 64.

Furthermore, we do not agree with the father’s contention that termination

of his parental rights is not in N.H.’s best interests. Not only is the father in jail,

charged with the murder of the mother, he has perpetrated violence on N.H. as

well as the other children in the home. As the district court noted:

The older girls often cry out for their mother at times and express
extreme fear of [the father], and other members of his family.
[M.G.] reports being physically abused by [the father]. She has
stated that [the father] would hit her when she wet the bed and also
on the night of the murder. [M.G.] reports that [the father] smacked
her when she was crying after seeing [the father] strike her mother
down in the road. Both older girls express witnessing additional
acts of domestic violence between [the father] and their mother.
The older children also report observing [the father] throwing [N.H.]
in the air and shaking [N.H.] to try and get her to stop crying.
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Termination proceedings are meant to protect the children from future

harm. See In re M.M., 483 N.W.2d 812, 815 (Iowa 1992). The father has

demonstrated he is a violent individual who cannot care for N.H. without

subjecting her to harm. See id. at 814 (noting a parent’s past behavior is

indicative of his future actions). Though he claims termination would preclude

contact with his relatives, permanency, in the form of termination of his rights, is

nonetheless in N.H.’s best interests. See Iowa Code § 232.116(2).

IV. Due Process

The father also contends that his constitutional rights were violated when

the district court denied his request to appear personally, or to be present

telephonically throughout the hearing. Iowa Code section 232.38 governs the

presence of parents at a juvenile hearing, and states:

Any hearings or proceedings under this division subsequent
to the filing of a petition shall not take place without the presence of
one or both of the child’s parents, guardian or custodian except that
a hearing or proceeding may take place without such presence if
the parent, guardian or custodian fails to appear after reasonable
notification, or if the court finds that a reasonably diligent effort has
been made to notify the child’s parent, guardian, or custodian, and
the effort was unavailing.
In any such hearings or proceedings the court may
temporarily excuse the presence of the parent, guardian or
custodian when the court deems it in the best interests of the child.
Counsel for the parent, guardian or custodian shall have the right to
participate in a hearing or proceeding during the absence of the
parent, guardian or custodian.

Iowa Code § 232.38(1)–(2); see also id. § 232.91(1) (“Any hearings or

proceedings under this division subsequent to the filing of a petition shall not take

place without the presence of the child’s parent, guardian, custodian, or guardian

ad litem in accordance with and subject to section 232.38.”). Regarding the due-
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process analysis of these sections, our court has held: “Where a parent receives

notice of the petition and hearing, is represented by counsel, counsel is present

at the termination hearing, and the parent has an opportunity to present

testimony by deposition, we cannot say the parent has been deprived of

fundamental fairness.” In re J.S., 470 N.W.2d 48, 52 (Iowa Ct. App. 1991); see

also In re A.M.H., 516 N.W.2d 867, 870–71 (Iowa 1994) (noting that, in juvenile

proceedings, due process must be satisfied, which generally encompasses the

opportunity to be heard).

These due-process requirements were satisfied in the underlying

proceedings. The father does not contest that he received notice of the petition

to terminate, and the grounds on which the State was seeking termination;

consequently, he was able to adequately assist counsel in preparing for the

hearing. In the hearing, the father was given the opportunity to testify by phone,

but declined. Additionally, he was represented by counsel, who was present

throughout the hearing, cross-examined witnesses, and presented the father’s

case to the juvenile court. Pursuant to our statutes and case law, the

proceedings were fundamentally fair; therefore, no due-process violations

occurred. See J.S., 470 N.W.2d at 52 (holding a parent does not have a

constitutional, due-process right to be physically present at the termination

hearing when he is incarcerated); see also In re S.P., 672 N.W.2d 842, 846 (Iowa

2003) (noting that, in termination proceedings, due process requires notice and
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an opportunity to be heard).2 Nor was the father prejudiced when the court

denied his motion to continue. See In re L.L., 459 N.W.2d 489, 495 (Iowa 1990)

(noting a court is not under an obligation to grant a continuance, given it is

important the child achieve permanency within a reasonable amount of time).

For these reasons, we affirm the order of the district court terminating the

father’s parental rights to his child, N.H.

AFFIRMED.

2
Though this holding is in line with our statutory scheme and case law, we nonetheless
note that best practices should allow for the parent to be present—either in person,
telephonically, or through video conferencing—whenever practically feasible.