IN THE INTEREST OF A.L., Minor Child, M.D.L., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-1002 / 08-1822
Filed December 31, 2008
IN THE INTEREST OF A.L.,
Minor Child,
M.D.L., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Carol S. Egly, District
Associate Judge.
A father appeals from the order terminating his parental rights.
AFFIRMED.
John Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant
father.
Alexandra Nelissen of Nelissen & Juckette, P.C., Des Moines, for mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Kevin Brownell,
Assistant County Attorney, for appellee State.
Jessica Miskimins, Des Moines, for minor child.
Considered by Vogel, P.J., and Mahan and Miller, JJ.
2
MAHAN, J.
Mikel appeals the district court’s order terminating his parental rights to his
eighteen-month-old son, A.L. He claims the juvenile court erred in terminating
his parental rights due to the exceptions provided in Iowa Code section
232.116(3) (2007). We affirm.
I. Background Facts and Proceedings.
A.L. is the child of Mikel and Tarayia.1 A.L. was removed from his home in
March 2008 and was adjudicated a child in need of assistance (CINA) under
Iowa Code sections 232.2(6)(c)(2) and (n) in May 2008 due to domestic abuse
concerns and safety issues arising from Tarayia’s instability, Mikel’s criminal
charges, and exposure to illegal drugs. A.L. was initially placed in foster care
upon his removal in March 2008, but was moved within a week to the home of
his paternal grandmother.2
The termination hearing was held in October 2008. Mikel had not seen
A.L. in the six months prior to the termination hearing and had been incarcerated
or on the run from criminal authorities since five days after A.L.’s birth in June
2007. At the time of the termination hearing, Mikel resided at the Fort Dodge
Correctional Facility and was scheduled to be released on November 27, 2009.
The district court found clear and convincing evidence supporting termination of
Mikel’s parental rights pursuant to Iowa Code sections 232.116(1)(d),(e), and (h).
By order dated October 29, 2008, Mikel’s parental rights were terminated. He
now appeals.
1
2
The parental rights of Tarayia were also terminated, but she does not appeal.
A.L. has remained in his grandmother’s care since that time.
3
II. Scope and Standard of Review.
We review termination of parental rights de novo. In re Z.H., 740 N.W.2d
648, 650-51 (Iowa Ct. App. 2007). Grounds for termination must be proved by
clear and convincing evidence. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).
Our primary concern is the best interests of the child. Id.
III. Merits.
The court terminated Mikel’s parental rights pursuant to sections
232.116(1)(d),(e), and (h). The actual grounds for termination of his parental
rights under these sections are not being contested or appealed. Mikel concedes
the grounds for termination have been met. He contends, however, that the
court erred in failing to consider the exceptions to termination as set forth in
section 232.116(3)(a) and (c). The relevant portions of this section state:
3.
The court need not terminate the relationship between the
parent and child if the court finds any of the following:
(a)
A relative has legal custody of the child.
....
(c)
There is clear and convincing evidence that the termination
would be detrimental to the child at the time due to the closeness of
the parent-child relationship.
Iowa Code § 232.116(3)(a), (c). A termination, otherwise warranted, may be
avoided under the exceptions in this section. In re D.E.D., 476 N.W.2d 737, 738
(Iowa Ct. App. 1991).
The factors under section 232.116(3) have been
interpreted by the courts as being permissive, not mandatory. In re C.L.H., 500
N.W.2d 449, 454 (Iowa Ct. App. 1993). The words “need not terminate” are
clearly permissive.
Id.
The court has discretion, based on the unique
circumstances of each case and the best interests of the child, whether to apply
the factors in this section to save the parent-child relationship. Id.
4
After a careful review of the record, we conclude the exceptions in section
232.116(3)(a) and (c) do not apply to the facts of this case. Mikel contends his
parental rights should not be terminated because he has a bond with his son.
Although Mikel obviously loves his son and is making an effort to stay out of
trouble in prison, the record does not show a bond between Mikel and A.L. Mikel
points to time he spent with A.L. when he has been out of prison, but the fact
remains that Mikel has been incarcerated or fleeing from criminal authorities
since A.L.’s birth. He has not seen A.L. in months and admits he has not had a
relationship with A.L. since June 2008. The court did not abuse its discretion is
failing to utilize this exception.
Mikel further claims his parental rights should not be terminated because
A.L. is placed with a relative.
A.L. has been in the care of his paternal
grandmother since his removal in March 2008. With regard to the grandmother’s
care for A.L., the court stated:
[A.L.] is entitled to look to the one person who has consistently
cared for him as a parental figure. The scope of his parents’
problems is such that in the foreseeable future they are unlikely to
be able to contribute in a positive way to his care. Emotionally A.L.
needs to see the placement with his grandmother as permanent.
Ongoing court involvement disrupts the concept of “permanency”
and will be necessary if parental rights are not terminated.
Although the record shows that A.L. is placed in the legal custody of a relative,
the exception in section 232.116(3)(a) is permissive, not mandatory. Upon our
review, we determine that Mikel’s rights should be terminated, and we therefore
decline to apply the exception. The district court properly exercised discretion in
this case.
5
A.L. has waited for almost a year for his father to provide the safe and
stable home he deserves. Mikel’s criminal issues and incarceration have broken
any bond that may have existed with his son. Given A.L.’s age, his need for
permanency, domestic abuse concerns, and his father’s criminal history, it is in
his best interests that parental rights be terminated. Accordingly, we affirm the
district court’s order.
AFFIRMED.
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