                     IN THE COURT OF APPEALS OF IOWA

                                    No. 18-2112
                                Filed March 6, 2019


IN THE INTEREST OF O.C.-M.,
Minor Child,

D.C., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Colin J. Witt, District

Associate Judge.



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

AFFIRMED.



       Deborah L. Johnson of Deborah L. Johnson Law Office, P.C., Altoona, for

appellant father.

       Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

       Paul White of Juvenile Public Defender, Des Moines, attorney and guardian

ad litem for minor child.



       Considered by Mullins, P.J., McDonald, J., and Carr, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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CARR, Senior Judge.

        The father appeals the termination of his parental rights to O.C.-M. He

argues the district court should have established a guardianship rather than

terminating his parental rights because termination is not in the best interests of

the child and a relative’s legal custody of the child precluded termination. Due to

a no-contact order that remains in effect until 2023 and the child’s need for

permanency, we find termination is in the best interests of the child and there is

nothing precluding termination.

   I. Background Facts and Proceedings

        The Iowa Department of Human Services first became involved with this

family at the time of O.C.-M.’s birth in July 2017 due to concerns the mother used

drugs during the pregnancy. On or about December 5, the mother called police to

report the father threatened to kill himself and O.C.-M. Police responded and

discovered O.C.-M. with facial injuries. Two days later, the mother took O.C.-M.

to the hospital with bruises on his face and abdomen, and he was diagnosed with

skull fractures and hematoma.      The father admitted to shaking O.C.-M. on

December 5 and abusing various drugs. In addition, the mother reported the father

has abused the child previously, including incidents when O.C.-M. was one month

and four months old. On December 8, O.C.-M. was removed from his parents’

care.   Both parents were charged with felonies and no-contact orders were

initiated. The no-contact orders remain in effect and are set to expire in 2023.

        Originally, O.C.-M. was placed in foster care; however, his maternal

grandfather intervened and custody was transferred to him and his partner in July

2018. On September 20, the State filed a petition to terminate parental rights. At
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the November 7 hearing, both parents stipulated that the grounds for termination

alleged under Iowa Code section 232.116(1)(h) (2018) existed, but they argued

the district court should establish a guardianship with the maternal grandfather

rather than terminate their parental rights. On November 26, the district court

terminated both parents’ parental rights. The father appeals.1

    II. Standard of Review

       Our review of termination-of-parental-rights proceedings is de novo. In re

P.L., 778 N.W.2d 33, 40 (Iowa 2010). “We will uphold an order terminating parental

rights if there is clear and convincing evidence of grounds for termination under

Iowa Code section 232.116.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).

“‘Clear and convincing evidence’ means there are no serious or substantial doubts

as to the correctness [of] conclusions of law drawn from the evidence.” In re C.B.,

611 N.W.2d 489, 492 (Iowa 2002).

    III. Best Interests

       The father argues termination is not in the best interests of the child.2 He

asserts he has participated in the case in “every way possible and has continued

to express an ongoing love and affection for his son.” The State asserts the father

has failed to “discuss any of the statutory factors” and termination is in the best

interests of the child because O.C.-M. is young and needs permanency. “In



1
  The mother initially appealed, but she voluntarily dismissed her appeal on December 17,
2018.
2
  At the termination hearing, the father stipulated to the ground for termination under Iowa
Code section 232.116(1)(h). Moreover, on appeal, the father does not raise an argument
that the ground was not met. Therefore, we need not consider this step. See P.L., 778
N.W.2d at 40 (providing the court need not consider the existence of the grounds for
termination under Iowa Code section 232.116(1) because the parent did not dispute the
issue).
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considering whether to terminate the rights of a parent . . . , the court shall 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.” Iowa Code § 232.116(2). However,

“we cannot deprive a child of permanency after the State has proved a ground for

termination under [Iowa Code] section 232.116(1) by hoping someday a parent will

learn to be a parent and be able to provide a stable home for the child.” P.L., 778

N.W.2d at 41.

       In the termination ruling, the district court stated,

       While it may be true that [O.C.-M.] will be in his maternal
       grandfather’s physical custody regardless of whether the court
       chooses to terminate parental rights or appoint the maternal
       grandfather as guardian, [O.C.-M.] deserves the stability that comes
       from being adopted by his maternal grandfather. If the court chose
       not to terminate parental rights, [O.C.-M.]’s future placement would
       be unforeseeable (or at least less certain) for the next five years and
       potentially years beyond.

Because of the no-contact order, the father is unable to contact O.C.-M. until 2023.

Even after the order expires, there is no guarantee the father will be able to regain

custody of the child. We agree with the district court that termination is appropriate

because having a permanent and stable home is in the best interests of the child.

See In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially)

(noting the child’s safety and need for a permanent home are the “defining

elements” when determining the best interests of the child).

   IV. Preclusion of Termination

       Next, the father argues the district court should have precluded termination

under Iowa Code section 232.116(3)(a) because a relative had legal custody of
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O.C.-M. He further asserts “[t]he court could have established [a] guardianship

with [the] maternal grandfather instead of the harsh and final option of termination

of parental rights.” The State asserts the district court appropriately found nothing

precludes termination and O.C.-M. “should not face the uncertainty of future

guardianship proceedings.”

          Once the State has proved grounds for termination exist, the parent

resisting termination bears the burden of proof to establish a permissive factor

precludes termination under Iowa Code section 232.116(3).           In re A.S., 906

N.W.2d 467, 476 (Iowa 2018). Iowa Code section 232.116(3)(a) states a court

may decline to terminate parental rights if “[a] relative has legal custody of the

child.”    However, “[a]n appropriate determination to terminate a parent-child

relationship is not to be countermanded by the ability and willingness of a family

relative to take the child.   The child’s best interests always remain the first

consideration.” In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). “[A] guardianship is

not a legally preferable alternative to termination.”    A.S., 906 N.W.2d at 477

(quoting In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App. 2017)). As previously stated,

with the no-contact order in effect, the father is unable to provide any care to

O.C.-M. until 2023 and O.C.-M. deserves permanency. Therefore, we find the

maternal grandfather’s custody of the child does not preclude termination.

   V. Conclusion

          We conclude termination is in the best interests of the child and the

relative’s legal custody of the child does not preclude termination.

          AFFIRMED.
