IN THE INTEREST OF L.R.B. and L.J.B., Minor Children, L.E.B., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-633 / 07-1289
Filed September 6, 2007
IN THE INTEREST OF L.R.B. and L.J.B.,
Minor Children,
L.E.B., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Constance Cohen,
Associate Juvenile Judge.
A father appeals from the order terminating his parental rights.
AFFIRMED.
Jesse A. Macro, Jr., Des Moines, for appellant father.
Nancy Pietz, Des Moines, for mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Stephanie Brown,
Assistant County Attorney, for appellee State.
Nicole Garbis Nolan of the Youth Law Center, Des Moines, for minor
children.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
2
MAHAN, P.J.
Lawrence appeals from the order terminating his parental rights to his twin
daughters, L.R.B. and L.J.B. We affirm.
I. Background Facts and Prior Proceedings
L.R.B. and L.J.B. were born in February 2006. At the time of their birth,
Lawrence was serving a nineteen-year prison sentence for possession of crack
cocaine with intent to deliver. 1
The twin girls came to the attention of the Iowa Department of Human
Services in August 2006 when their mother tested positive for PCP. The children
were immediately removed from their mother’s care and adjudicated children in
need of assistance on October 19, 2006. The children were eventually placed
with the mother’s aunt.
The State filed a petition to terminate parental rights on May 31, 2007.
The mother consented to the termination of parental rights. Lawrence testified at
the hearing and resisted the termination. He testified that he has only met these
children on one occasion, but he planned to establish a relationship with them
when he was paroled within the next thirty to forty-five days. He also revealed
that he has child support obligations for four other children from a previous
relationship.
After a full hearing, the State terminated Lawrence’s parental rights
pursuant to Iowa Code sections 232.116(1)(d), (g), and (h) (2007).
appeals.
1
Lawrence has been incarcerated since September 2005.
He now
3
II. Standard of Review
We review termination of parental rights de novo. In re J.E., 723 N.W.2d
793, 798 (Iowa 2006). Our primary concern is the best interests of the children.
Id.
III. Merits
Lawrence concedes there was clear and convincing evidence to sustain
the statutory elements for termination. He only claims the termination should
have been avoided under Iowa Code section 232.116(3)(a) because a relative
had legal custody of the children and “[b]y terminating the parental rights of an
able bodied member of society, the court in essence has created financial
orphans of these children.”
We disagree. Under section 232.116(3)(a), the juvenile court “need not”
terminate parental rights if a relative has legal custody of the child. Section
232.116(3) is a permissive, not a mandatory statute. In re J.L.W., 570 N.W.2d
778, 781 (Iowa Ct. App. 1997). It is within the sound discretion of the juvenile
court, based upon the unique circumstances before it and the best interests of
the children, whether to apply this section. Id. Furthermore, the “determination
to terminate a parent-child relationship is not to be countermanded by the ability
and willingness of a family member to take the child [because the child’s] best
interests always remain the first consideration.” In re C.K., 558 N.W.2d 170, 174
(Iowa 1997). Upon our de novo review of the record we find that Iowa Code
section 232.116(3)(a) should not be applied in these circumstances.
We also do not agree that termination will make these children “financial
orphans.”
To date, Lawrence has made only meager financial contributions
4
toward their care. While his eventual release from prison may lead to larger
support payments, his current child support obligations to four other children and
his history of previous criminal activity will likely limit his ability to adequately
provide for these children. On the other hand, their maternal great aunt is willing
to adopt both children and assume the corresponding financial responsibility.
Lawrence has been incarcerated for the duration of these children’s lives.
Based on his prior behaviors, there is a strong possibility he may never be able
to provide for their basic needs. See J.E., 723 N.W.2d at 798 (noting a parent’s
past performance is indicative of the quality of care the parent will provide in the
future). On the other hand, both girls have thrived in the care of their maternal
great aunt. Waiting for Lawrence to be released from prison and waiting for him
to learn how to be a parent does not advance their immediate or long-range best
interests. They deserve permanency now. See id. at 801 (Cady, J., concurring
specially) (“A child’s safety and the need for a permanent home are now the
primary concerns when determining a child’s best interests.”). Termination is in
their best interests.
Accordingly, the juvenile court’s order terminating
Lawrence’s parental rights to L.R.B. and L.J.B. is affirmed.
AFFIRMED.
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