IN THE INTEREST OF K.S. Jr., J.S., and L.S., Minor Children, K.W.S. Sr., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-351 / 06-1359
Filed June 13, 2007
IN THE INTEREST OF K.S. Jr., J.S., and L.S.,
Minor Children,
K.W.S. Sr., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Louise Jacobs,
District Associate Judge.
A father appeals from the order terminating his parental rights.
AFFIRMED.
Jesse A. Macro, Jr., Des Moines, for appellant father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Corey McClure,
Assistant County Attorney, for appellee State.
David Backstrom, Assistant Public Defender, Des Moines, for minor child.
Considered by Mahan, P.J., and Eisenhauer and Baker, JJ.
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MAHAN, P.J.
A father appeals the termination of his parental rights to his three children.
The father, Kevin, claims there were insufficient statutory grounds for termination
and that the court should not have terminated his parental rights because the
children were placed with a relative. We affirm.
I. Facts and Prior Proceedings
K.S. Jr., J.S., and L.S. were removed by temporary order from their
parents’ care in April of 2005 amidst allegations of child abandonment and
substance abuse. At the time of removal, Kevin was not living in the family
home. The children were adjudicated children in need of assistance (CINA) on
June 28, 2005, based on the mother’s unresolved substance abuse issues and
also because Kevin was, at that time, incarcerated. Kevin was released from jail
shortly after the date of adjudication, but he only saw his children once during the
time between removal and the termination hearing.
At the time of the termination proceeding, the children were living with
their maternal aunt, and the mother consented to the termination of her parental
rights. After a full hearing, the court terminated Kevin’s parental rights pursuant
to sections 232.116(1)(d), (e), and (f) of the Iowa Code (2005).
II. Standard of Review
We review termination proceedings de novo. In re K.N., 625 N.W.2d 731,
733 (Iowa 2001). Although we give weight to the juvenile court’s factual findings,
we are not bound by them. Id. The State must prove the grounds for termination
by clear and convincing evidence. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App.
1999). Our primary concern is the best interests of the children. Id.
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III. Merits
Kevin contends the evidence does not support termination under sections
232.116(1)(d), (e), or (f).
Because we find statutory grounds for termination
under section 232.116(1)(f), we need not address the arguments pertaining to
the other statutory grounds listed by the district court. See S.R., 600 N.W.2d at
64 (“When the juvenile court terminates parental rights on more than one
statutory ground, we need only find grounds to terminate under one of the
sections cited by the juvenile court to affirm.”).
Section 232.116(1)(f) provides that parental rights can be terminated if the
State proves by clear and convincing evidence that the children are four years of
age or older; that the children have been adjudicated CINA; the children have
been removed from the physical custody of their parents for at least twelve of the
last eighteen months or for the last twelve consecutive months and any trial
period at home has been less than thirty days; and there is clear and convincing
evidence that at the present time the children cannot be returned to the custody
of the parents as provided in section 232.102. The first three elements were
clearly proved and are not in dispute.
On appeal, Kevin claims that, “within a reasonable time, he would have a
home and a safe place to have the children.” At the time of the termination
hearing, Kevin was incarcerated on charges of domestic abuse against the
children’s mother.
The following colloquy between Kevin and the assistant
county attorney illustrates Kevin’s position at the termination proceeding:
Q. What is it you’re proposing the Court do today with
regard to your parental rights? A. I want to keep my rights. I do
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not mind [the relative] having my children. I was kind of going to
insist upon that. I’ve always respected her.
Q. So you would like the children to stay with [the relative]
through the future? A. Yes, yes, I really would.
Q. And you’re not asking the Court to return the children
today to you? A. No, I’m not, because I’m not prepared for it at the
moment.
....
Q. You’re not asking the Court when you are discharged
from jail in July to have the children placed with you, are you? A. I
want to have custody and have them placed with me right now. I’m
just not prepared.
Kevin also confirmed that he had previously told a social worker that he could not
raise a girl and that the boys would not need him until they were fourteen years
old. 1
Our inquiry under section 232.116(1)(f) is whether the children can be
returned to his care “at the present time.” By his own admission, Kevin was not
prepared to have the children returned to his care at the time of the termination
proceeding. We therefore affirm the termination of his parental rights under the
statutory grounds set forth in section 232.116(1)(f). See in re M.Z., 481 N.W.2d
532, 536 (Iowa Ct. App. 1991) (“Termination should occur if the statutory time
period has elapsed and the parent is still unable to care for the child.”).
Kevin also contends termination was not appropriate under Iowa Code
section 232.116(3)(a) 2 because the children were residing with a relative and
could continue to live there until he was able to provide for their care. Placement
with relatives is not presumptively preferred over termination of parental rights.
In re L.M.F., 490 N.W.2d 66, 67 (Iowa Ct. App. 1992).
The exceptions to
termination set forth in section 232.116(3) are permissive, not mandatory. In re
1
Two of the children were boys, and one was a girl. All three children were less than
thirteen years old at the time of the termination hearing.
2
Under section 232.116(3)(a), “The court need not terminate the relationship between
the parent and child if . . . [a] relative has legal custody of the child.”
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C.L.H., 500 N.W.2d 449, 454 (Iowa Ct. App. 1993).
It is within the juvenile
court’s sound discretion based upon the unique circumstances of the case before
it and the best interests of the children whether to apply a factor in section
232.116(3).
Id.
The trial court’s stated reasons for rejecting the father’s
proposed placement include the following:
The father’s belief that his real responsibilities as a parent
would likely begin when the kids reached adolescence and the
demonstration of that belief in his failure to assume basic
responsibilities of a parent up to this point in time clearly establish
that there is no significant parental relationship between the father
and the children. . . . There is no significant bond that must be or
should be protected.
The father’s poor decision making as demonstrated by his
lengthy criminal record indicates that he is not likely to be a positive
role model for the children. His instability, both in frequent jail stays
and in his failure to maintain stable housing, are detrimental to the
children’s need for stability. There is no reasonable likelihood that
the children could be placed with their father within six months. No
compelling reasons exist not to terminate.
. . . There is no reason or basis to believe that termination
would be detrimental to the children. The evidence establishes
that, in fact, it would [be] a detriment to the children to not terminate
the parental rights of the father as it would interfere with their ability
to become a part of a forever family.
We agree with the juvenile court’s conclusion that long-term relative
placement or a guardianship is not in the children’s best interests.
These
children deserve stability and permanency, which Kevin cannot provide. See In
re J.E., 723 N.W.2d 793, 801 (Iowa 2006) (Cady, J., concurring) (“A child’s safety
and the need for a permanent home are now the primary concerns when
determining a child’s best interests.”). The children have been placed outside of
the family home for more than a year with limited contact from their father. They
should not be made to wait any longer for their father to become a responsible
parent. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997). The maternal
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aunt would like to adopt the children, and all parties agree she would provide a
safe and loving environment. We conclude the court did not abuse its discretion
by not applying section 232.116(3)(a) to save the parent-child relationship and
conclude termination of Kevin’s parental rights is in the children’s best interests.
AFFIRMED.
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