Opinion
No. 6-178 / 06-0125
Filed April 12, 2006
Appeal from the Iowa District Court for Polk County, Louise Jacobs, District Associate Judge.
M.J. appeals from the juvenile court's order terminating his parental rights concerning his child, K.M. AFFIRMED.
Joseph Renzo of Babich, Goldman, Cashatt Renzo, P.C., Des Moines, for appellant father.
Edward Bull of Bull Law Office, P.C., Des Moines, for mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Corey McClure, Assistant County Attorney, for appellee State.
Kayla Stratton, Des Moines, for minor child.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
I. Background Facts and Proceedings.
K.M. was born in April 2005. C.M. is his mother. M.J. is his father. M.J. was incarcerated at the time K.M. was born, and his paternity had not yet been established.
K.M. was removed from C.M.'s custody and placed in foster care immediately following birth because of C.M.'s history of substance abuse and mental health issues. C.M.'s parental rights concerning her four other children were terminated prior to K.M.'s birth.
On June 6, 2005, K.M. was adjudicated a child in need of assistance pursuant to Iowa Code section 232.2(6)(b) (2005) (parents has physically abused or neglected child (or is imminently likely to do so)), 232.2(6)(c)(2) (child is likely to suffer harm due to parent's failure to exercise care in supervising child), and 232.2(6)(n) (parent's mental capacity (or condition, or drug or alcohol abuse) results in child not receiving adequate care). The resulting dispositional order extended K.M.'s foster care placement. The court ordered paternity testing for M.J. Upon confirmation of his paternity, M.J. was provided parenting services and limited visitation following his release from incarceration. On November 18, 2005, M.J. was arrested for a probation violation and was again incarcerated.
On August 24, 2005, the State filed a petition to terminate both C.M.'s and M.J.'s parental rights. The petition requested that M.J.'s parental rights be terminated under Iowa Code sections 232.116(1)(a) (2005) (parent consents to termination), 232.116(1)(d) (child CINA for physical or sexual abuse (or neglect), circumstances continue despite receipt of services), 232.116(1)(e) (child CINA, child removed for six months, parent has not maintained significant and meaningful contact with the child), 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 232.116(1)( l) (child CINA, parent has substance abuse problem, child cannot be returned within a reasonable time). The petition requested that C.M.'s parental rights be terminated on the same grounds, as well as Iowa Code sections 232.116(1)(b) (abandonment) and 232.116(1)(g) (child CINA, parent's rights to another child were terminated, parent does not respond to services).
On January 10, 2005, the court terminated C.M.'s parental rights on all grounds alleged except Iowa Code section 232.116(1)(a) (parent consents to termination). M.J.'s parental rights were terminated under Iowa Code sections 232.116(1)(d) (child CINA for physical or sexual abuse (or neglect), circumstances continue despite receipt of services), 232.116(1)(e) (child CINA, child removed for six months, parent has not maintained significant and meaningful contact with the child), and 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).
On appeal, M.J. raises the following issues:
I. Termination was not in the best interest of the child where he shared a strong bond with his father and was significantly attached to him and the role he played in his life; and there was no significant evidence indicating reunification would be detrimental to the child.
II. The evidence failed to support a finding that termination of the father's parental rights was in the best interests of the child where the child could have been placed in a permanent guardianship with his foster parents and the State failed to show that continued contact with the father was harmful to the child.
III. The evidence failed to support a finding that the father's incarceration justified termination of his parental rights.
C.M. does not appeal.
II. Standard of Review.
The scope of review in termination cases is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000). Our primary concern is the best interests of the child. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997).
III. Merits.
Iowa Code section 232.116(1)(d) provides for termination of parental rights if the court finds there is clear and convincing evidence that the child has been adjudicated in need of assistance for neglect and, despite the services provided, the circumstances continue. Iowa Code section 232.116(1)(e) provides for the termination of parental rights if the court finds by clear and convincing evidence (1) the child has been adjudicated in need of assistance, (2) the child has been removed from the parent's care for six months, and (3) the parent has not maintained significant and meaningful contact with the child. Under Iowa Code section 232.116(1)(h), a parent's rights may be terminated if the court finds by clear and convincing evidence (1) the child is three or younger, (2) the child has been adjudicated in need of assistance, (3) the child has been removed from the home for six of the last twelve months, and (4) the child cannot be returned home. "`Clear and convincing' evidence connotes the establishment of facts by more than a preponderance of evidence but something less than establishing a factual situation beyond reasonable doubt." In re S.N., 500 N.W.2d 32, 34 (Iowa 1993) (citing In re Henderson, 199 N.W.2d 111, 121 (Iowa 1972)). Even though the juvenile court terminated M.J.'s parental rights on multiple grounds, we only need to find grounds to terminate parental rights under one of the sections cited to affirm the juvenile court's ruling. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999).
There are no disputes concerning K.M.'s adjudication, age, or length of out-of-home placement. The only issues are whether K.M. can be returned to M.J.'s custody or whether M.J. has maintained significant and meaningful contact with K.M. Based on our de novo review of the record, we find clear and convincing evidence supporting both of the findings in dispute.
M.J. was incarcerated at the time of the termination following his conviction of domestic abuse assault and substance abuse. He has had no significant contact with K.M. since he was incarcerated in November 2005. M.J.'s earliest expected discharge date is in August 2006.
We have repeatedly held that a child should not be forced to suffer "the parentless limbo" of foster care. In re of J.P., 499 N.W.2d 334, 339 (Iowa Ct.App. 1993). M.J. must take responsibility for the conduct that led to his confinement, In re L.W., 523 N.W.2d 622, 624 (Iowa Ct.App. 1994), because his incarceration is the product of his own actions. See In re J.S., 470 N.W.2d 48, 51 (Iowa Ct.App. 1991). Furthermore, a parent cannot use his incarceration as a justification for his lack of a relationship with the child. In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993). K.M. should not have to remain in "parentless limbo" until M.J.'s release from incarceration. Moreover, M.J.'s past failure to resolve substance abuse issues and recidivistic behavior diminish the prospects of a successful family reunification.
IV. Best Interests.
Even if the statutory grounds for termination of parental rights are established, the court need not terminate parental rights if such action is not in the child's best interests. M.M.S., 519 N.W.2d at 400. "A parent does not have an unlimited amount of time in which to correct his or her deficiencies." In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct.App. 1997). A child should not be perpetually kept in foster care. J.P., 499 N.W.2d at 339. Iowa Code section 232.116(3)(c) (2005) provides that a strong bond between a parent and child is a special circumstance which may mitigate against termination. However, the strong bond is merely a factor and not an overriding consideration. In re N.F., 573 N.W.2d 338, 341-42 (Iowa Ct.App. 1998). We, for the same reasons cited earlier, find that K.M.'s best interests require termination of M.J.'s parental rights.
The juvenile court's order terminating M.J.'s parental rights concerning K.M. is affirmed in its entirety.