Opinion
No. 5-186 / 05-0120.
March 31, 2005.
Appeal from the Iowa District Court for Monroe County, William S. Owens, Associate Juvenile Judge.
Father appeals the order terminating his parental rights to his son. AFFIRMED.
Jonathan Willier, Centerville, for appellant-father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Steven Goodlow, County Attorney, for appellee State.
Joanna Albers, Albia, for child.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
William appeals the termination of his parental rights to Alexander, born in November of 2000. We affirm.
I. Background Facts and Proceedings
Alexander came to the attention of the Iowa Department of Human Services (DHS) in March of 2003 when DHS learned his mother had been under the influence of methamphetamine while caring for him. Alexander was then removed from her care and placed with the mother's half-brother, Corey and his wife, Jennifer. Corey and Jennifer are certified as foster parents and wish to adopt Alexander.
At the time of Alexander's removal and adjudication, William was in a coma at a residential rehabilitation facility as a result of a car accident in October of 2002. William eventually recovered sufficiently to move to his parent's home in April of 2004. Prior to his accident, William had not had seen Alexander for approximately fourteen months.
William's parents have been involved in these proceedings since they intervened in the child in need of assistance (CINA) case. However, they had not had contact with Alexander for a year and a half preceding their intervention. Following a court-ordered assessment of their home, it was determined William's parent's home was appropriate for Alexander, and Alexander's grandparents asked for custody of Alexander. This request was denied, as placement continued with Corey and Jennifer, but William's parents were granted visitation with Alexander. These visits went well.
Since William's move to his parent's home in April of 2004, he has had regular visits with Alexander. William's overall condition has improved so that he is able to have some interaction and communication with Alexander. William participates in a variety of rehabilitative services including speech therapy, physical therapy, home health aide, and occupational therapy. However, William is currently unable to care for either his or Alexander's physical needs.
At the termination hearing in November of 2004, Alexander's DHS case worker expressed her opinion that although she believed William's parental rights should be terminated so that Corey and Jennifer may adopt Alexander, the visits between Alexander, William, and William's parents should continue. William then proposed, as an alternative to termination of his parental rights, a guardianship with Corey and Jennifer and visitation with William and his parents. The juvenile court rejected this proposal and terminated William's parental rights.
II. Scope of Review
Termination orders are reviewed de novo. See In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993). The primary interest in termination proceedings is the best interest of the child. In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998).
III. Issue
Termination in this case was ordered pursuant to Iowa Code section 232.116(1)(h) (2003). This section allows the juvenile court to terminate parental rights where the child is three years of age or younger, has been adjudicated CINA, has been removed from the physical custody of the child's parent for six consecutive months, or six of the last twelve months, and there is clear and convincing evidence that the child cannot be returned home. See Iowa Code § 232.116(1)(h). The only element William contests is whether there was clear and convincing evidence that Alexander could not be returned to his custody.
Although at the time the termination order was filed Alexander was four years of age, he was still three years of age at the time the evidence was presented at the termination hearing.
William admitted during the juvenile court proceedings and again on appeal that his disability prevents him from physically providing for and parenting Alexander. This unfortunate situation exists despite William's participation in parental skill development services provided by DHS. While William and his parents are hopeful that William will one day be able to meet his own needs, it does not appear likely that he will ever have the capacity to meet Alexander's needs on his own. "[W]hen a parent is incapable of changing to allow the child to return home, termination is necessary." In re T.T., 541 N.W.2d 552, 557 (Iowa Ct.App. 1995). We therefore conclude the statutory requirements of section 232.116(1)(h) were met.
However, this conclusion does not end our review of the juvenile court's order. This is because even if the statutory requirements for termination of parental rights have been satisfied, the decision to terminate must still be in the best interests of the child, and the court need not terminate if certain conditions are present. See Iowa Code § 232.116(3) (providing a list of situations where parental rights need not be terminated); In re M.M.S., 519 N.W.2d 398, 400 (Iowa 1994) (stating that even if the statutory requirements for termination are satisfied termination must still be in the best interest of the child). William argues that rather than terminate his parental rights, the juvenile court should have preserved the family unit by entering a guardianship permanency order. Such an arrangement would allow Corey and Jennifer to care for Alexander while assuring contact between Alexander, William, and William's parents. The juvenile court, in ruling on the petition for termination of parental rights, considered this argument and stated that "guardianship is a permanency alternative". However, the juvenile court ultimately concluded that it was not in Alexander's best interests because he "is only four years old, and a better and more appropriate solution is available. Guardianships are subject to re-litigation, and would not afford Alexander the stability and permanency he deserves." We agree.
Long-term foster care under a guardianship, while perhaps in William's best interest, is not in the best interests of Alexander. See In re T.T., 541 N.W.2d at 557 (favoring termination of parental rights and adoption over preservation of the family unit through continued placement in foster care so that mentally disabled mother could attempt to address her problems). Temporary or even long-term foster care is not in child's best interests, especially when, as in this case, the child is adoptable. Id. (citing In re T.C., 522 N.W.2d 106 (Iowa Ct.App. 1994); In re M.Z., 481 N.W.2d 532 (Iowa Ct.App. 1991)). In this case William does not have the capacity to care for Alexander. Moreover, we find, as did the district court, that "[t]he evidence is both clear and convincing that the child has virtually no parental relationship with . . . William." This is at least partially attributable to the fact William had no contact with Alexander for fourteen straight months preceding his car accident. Furthermore, Alexander has been out of his parent's custody and in the home of his aunt and uncle for almost half of his life. Alexander is bonded to his aunt and uncle, who have demonstrated their concern for his best interests by, although not legally obligated to do so, committing to maintaining Alexander's relationship with his birth parents and his paternal grandparents. As such, we agree with the juvenile court that it is in Alexander's best interests to terminate William's parental rights, to free Alexander for adoption.