Opinion
No. 1-222 / 00-1607
Filed June 29, 2001
Appeal from the Iowa District Court for Polk County, Karla J. Fultz, District Associate Juvenile Judge.
Father appeals from the order terminating his parental rights. AFFIRMED.
Christopher Kragnes, Sr., and Tiffany Koenig, Des Moines, for appellant.
Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant Attorney General, and Jennifer Navis, Assistant County Attorney, for appellee-State.
Charles Fuson of Youth Law Center, Des Moines, guardian ad litem for minor child.
Heard by Mahan, P.J. and Zimmer, and Miller, JJ.
A father, J.C.H., appeals from the order terminating his parental rights. He contends the juvenile court erred by finding there was clear and convincing evidence for termination under Iowa Code sections 232.116(1)(b), (d) and (e) (1999). He also contends termination was not warranted because his sister now has legal custody of the child. We affirm.
I. Background Facts and Proceedings . Justin H. was born in October of 1994. His putative father, Joseph H., appeals the termination of his parental rights. Justin's mother, Betty C., whose rights were also terminated, is not involved in this appeal.
In December 1997, Justin and his half-brother Jeremy, who is also not involved in the appeal, began living with their mother's aunt and uncle after their mother was incarcerated for a parole violation. Their great-aunt served as legal guardian from February 1997 until she consented, for health reasons, to their placement with the Department of Human Services (DHS) in January 1999. In April 1999, the children were adjudicated in need of assistance (CINA) pursuant to Iowa Code sections 232.2(c)(2) and 232.2(6)(n). They have remained in the foster home of their paternal aunt since that time.
Joseph has been incarcerated since April 1999 for assault, driving while barred, and second-degree theft. He has not seen Justin during this time, but has maintained phone contact. His scheduled release date appears to be in September 2001.
A termination petition was filed in April 2000. Following a hearing at which Joseph appeared, the juvenile court terminated Joseph's parental rights under Iowa Code sections 232.116(1)(b), (d), and (e) in August 2000. The court noted Joseph's long criminal history and found Joseph was in no position to care for his son due to his incarceration, which had also prevented him from accessing DHS services. The court found placement of Justin with his father would expose him to further harm. The court also observed there was a suitable relative placement available.
On appeal, Joseph contends the court erred in finding there was clear and convincing evidence to terminate his rights under each of these grounds. He argues there is no evidence he abandoned his son. He points out that while his incarceration has prevented physical contact, he has maintained phone contact with Justin. He further complains that no services or opportunities have been provided to him, as they were to Betty, to help him resume care of Justin. Joseph additionally points to Iowa Code section 232.116(3)(a) and contends termination was not warranted because a relative, Joseph's sister, has custody of Justin.
II. Scope of Review . We review proceedings to terminate a parent-child relationship de novo. In re M.N.W., 577 N.W.2d 874, 875 (Iowa Ct. App. 1998). Our primary concern is the best interests of the child. Id. We look at both the child's long-range and immediate interests in making this determination. Id. We necessarily consider what the future likely holds for the child if returned to his or her parent. In re K.F., 437 N.W.2d 559, 560 (Iowa 1989). "Insight for this determination can be gained from evidence of the parent's past performance, for that performance may be indicative of the quality of the future care that parent is capable of providing." Id. (citation omitted). The grounds for termination must be shown by clear and convincing evidence. Id.
III. Sufficiency of the Evidence . Joseph contends the State failed to meet its burden of proof. The juvenile court terminated his parental rights pursuant to Iowa Code sections 232.116(1)(b), (d) and (e). Section 232.116(1)(e) provides for termination of parental rights if:
(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of the child's 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.
(4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child's parents as provided in section 232.102.
Joseph argues the last element of the section has not been met.
The final element of section 232.116(1)(e) is met when a child cannot be returned to the parental home because the circumstances leading to the CINA adjudication continue to exist. In re M.L.W., 461 N.W.2d 609, 611 (Iowa Ct. App. 1990). We find these circumstances still exist. At the present time, Justin cannot be returned to Joseph's care because Joseph is incarcerated. See In re J.S., 470 N.W.2d 48, 51 (Iowa Ct. App. 1991). This incarceration has rendered him unable to access the services offered to him by DHS. Joseph cannot fault DHS for being unable to provide him additional services when his own actions prevented him from taking advantage of them. In re M.T., 613 N.W.2d 690, 692 (Iowa Ct. App. 2000). Furthermore, Joseph has a long history of criminal activity and substance abuse. Justin has never lived with Joseph, as Joseph has been absent for most of Justin's life. Additionally, Joseph has three other children with whom he has not had contact for over five years. This past neglect of his children is evidence of the quality of Joseph's future care. SeeK.F., 437 N.W.2d at 560.
Because we find clear and convincing evidence termination was appropriate under section 232.116(1)(e), we need not address Joseph's arguments regarding subsections (b) and (d). Where parental rights are terminated on several grounds, we need only find sufficient evidence under one of the sections in order to affirm the termination. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct. App. 1996).
IV. Iowa Code Section 232.116(3)(a) . Iowa Code section 232.116(3)(a) states that the court need not terminate parental rights if the child is in the legal custody of a relative. Joseph contends the juvenile court erred in terminating his parental rights to Justin because Justin was in the custody of Joseph's sister.
Section 232.116(3) is permissive and not mandatory. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997). The juvenile court has the discretion to apply this section based on the circumstances before it and the best interests of the child. Id. Our primary concern is the child's long-range and immediate best interests. Id.
We find that termination was in Justin's best interests. At the time of termination, Justin had been living outside the parental home for over two and a half years. Justin has never lived with his father and has never received financial support from him.
Long-term foster care is not preferred to termination of parental rights. In re R.L., 541 N.W.2d 900, 903 (Iowa Ct. App. 1995). While the law requires a "full measure of patience with troubled parents who attempt to remedy a lack of parenting skills," this patience has been built into the statutory scheme of chapter 232. In re A.C., 415 N.W.2d 609, 613-14 (Iowa 1987). Children should not be forced to endlessly await the maturity of a natural parent. In re T.D.C., 336 N.W.2d 738, 744 (Iowa 1983). "At some point, the rights and needs of the child rise above the rights and needs of the parent." J.L.W., 570 N.W.2d at 781.
We affirm the decision of the juvenile court terminating Joseph's parental rights to Justin.
AFFIRMED.