IN THE INTEREST OF D.G.-M. and M.M., Minor Children, D.G.-M. and M.M., Minor Children, Appellants.
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IN THE COURT OF APPEALS OF IOWA
No. 7-882 / 07-1713
Filed November 29, 2007
IN THE INTEREST OF D.G.-M. and M.M.,
Minor Children,
D.G.-M. and M.M., Minor Children,
Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joe E. Smith, District
Associate Judge.
Attorney/guardian ad litem for children appeals district court order
dismissing the State’s petition to terminate parental rights. AFFIRMED.
Kimberly Ayotte of the Youth Law Center, Des Moines, for appellant
children.
Angela Gruber-Gardner, Des Moines, for mother.
Aaron Ginkens, West Des Moines, for father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Michelle Chenoweth,
Assistant County Attorney, for State.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
2
MAHAN, J.
The attorney/guardian ad litem for two children appeals the district court
order dismissing the State’s petition to terminate their parents’ parental rights.
Our review is de novo. In re M.S., 519 N.W.2d 398, 399 (Iowa 1994)
I. Background Facts and Prior Proceedings
Since birth, three-year-old M.M. has lived with her mother, Maria, and her
step-father, Juan.
The whereabouts of her biological father, J.B.H., are
unknown. One-year-old D.G.-M. has also spent his entire life with M.M., Maria,
and his biological father, Juan.
On January 22, 2007, Juan and Maria were arrested when they sold
methamphetamine to an undercover police officer. Because M.M. and D.G.-M.
were present at the time of the transaction, both were removed by authorities,
placed in foster care, and eventually placed with relatives. Juan and Maria have
remained incarcerated ever since.
On March 22 the children were adjudicated children in need of assistance
(CINA) pursuant to Iowa Code sections 232.2(6)(c)(2) and (n) (2007). In April
Juan and Maria pled guilty to charges related to the drug transactions, and both
were sentenced to indeterminate terms of imprisonment. 1 Maria’s first parole
hearing is scheduled to be in the fall of 2007.
Juan’s conviction carries a
mandatory minimum sentence, so he will not be eligible for parole until July 2009.
Both will be deported to Mexico immediately upon their release.
1
The maximum length of Maria’s imprisonment could be ten years, while the maximum
length of Juan’s imprisonment could be twenty-five years. See Iowa Code §§ 902.3,
902.9.
3
At the July permanency hearing, the juvenile court ordered the State to
institute proceedings to terminate the parent-child relationships.
The State
promptly filed a petition to terminate the parental rights of all three parents.
At the termination hearing, the court was informed that Maria planned to
live with her parents in Mexico once she was released from prison.
Documentation from the Mexican equivalent of the Iowa Department of Human
Services (DHS) confirmed that both children would have an appropriate home in
Mexico with Maria’s parents. The bulk of the evidence presented at the hearing
centered on the fine job the relatives were doing caring for the two children. The
attorney for the State and the attorney for the children/guardian ad litem
stipulated that Maria has “a wonderful relationship with both of her children and
that she’s very bonded [with them].”
After the hearing, the same juvenile court judge who had ordered the
State to file the termination petition entered an order dismissing the petition. The
court found there were statutory grounds for termination because both children
had been removed from their parents’ care for more than six months and they
were unable to be returned to their care at the time of the proceeding, 2 but found
there was insufficient proof that termination was in the children’s best interests.
See M.S., 519 N.W.2d at 400 (“Even if the statutory requirements for termination
are met, the decision to terminate must still be in the best interest of the
children.”). The court stated:
2
The court found statutory grounds to terminate all three parents’ parental rights under
section 232.116(1)(h) (child is three or younger, child CINA, removed from home for six
of last twelve months, and child cannot be returned home) and additional grounds to
terminate J.B.H.’s parental rights under section 232.116(1)(b) (abandonment).
4
No party, at any time during the course of this case,
presented me with any evidence that there would be safety
concerns if the children could be placed with their mother. The sole
reason for the out of home placement since the very beginning was
the parents’ unavailability. There is no evidence that Maria abused
illegal substances. There is no evidence of poor parenting prior to
the conduct that resulted in Maria’s arrest. There is no evidence
that following her release from prison Maria cannot provide a safe
and secure home for [the two children]. Indeed the evidence does
establish that Maria would have the benefit of a supporting
extended family in Mexico where her oldest child is now in the
custody of his maternal grandparents. The Mexican Consulate in
Omaha, Nebraska is available to assist the return of the children to
Mexico.
....
[T]here is no showing that the children cannot be nurtured and
thrive in their mother’s custody once she is released. For that
reason, I conclude that the children’s best interests will be served
by continuing them in the [local relative’s] custody until their mother
is released from prison and then facilitating their return to their
mother’s custody when she is established in her parents’ home.
The court ordered that there be further review in the pending CINA proceedings
and continued the current placement with the local relatives.
The attorney/guardian ad litem for the children now appeals, contending
termination was in the children’s best interests. The State did not file a brief in
support of this appeal.
II. Merits
The paramount consideration in termination proceedings is the best
interests of the children.
In re C.K., 558 N.W.2d 170, 172 (Iowa 1997).
In
seeking out those best interests, we consider the children’s long-range, as well
as immediate interests.
Id.
We also look to the parents’ past performance
because it may indicate the quality of care the parent is capable of providing in
the future. Id.
5
Upon our de novo review, we find that there is nothing in the record,
beyond her present incarceration for her involvement in the sale of drugs to the
undercover police officer, to suggest that Maria would provide anything less than
appropriate care for her children.
The evidence shows that Maria may be
released from prison in the near future and that she has already arranged an
adequate place for her children once she is released. We also find nothing in the
record to suggest that termination of either father’s parental rights would be
necessary if Maria was able to resume care for her children.
The juvenile court judge who has presided over the CINA proceedings
since their inception found termination was not in the children’s best interests
because the children were under their relatives’ care.
Iowa Code section
232.116(3)(a) provides that a court need not terminate parental rights if the
children are in the care of a relative. The evidence suggests that the children are
thriving in their relatives’ care while they wait for the parents’ release from prison.
Because of the excellent care they are receiving from relatives, the strong bond
between the mother and her children, and the fact that both children will remain
under the supervision of the juvenile court and DHS through the CINA
proceedings, we agree the mere lapse of the time set forth in the statutory
grounds for termination does not mandate that termination is in the best interests
of these children at this time. However, we also note that the children cannot
wait for their mother’s release from prison indefinitely. Subsequent termination
proceedings may be necessary if permanency is not achieved soon.
6
Because termination is not in the best interests of the children at this time,
we affirm the juvenile court's order dismissing the termination petition.
AFFIRMED.
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