Opinion
No. 1-1057 / 01-1109.
Filed January 28, 2002.
Appeal from the Iowa District Court for Linn County, SUSAN FLAHERTY, Associate Juvenile Judge.
The mother appeals a juvenile court order terminating her parental rights to her two youngest children. AFFIRMED.
Lucy Harrington, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Denver Dillard, County Attorney, and Rebecca A. Belcher, Assistant County Attorney, for appellee-state.
Barbara Liesveld, Cedar Rapids, for minor children.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
The mother appeals a juvenile court order terminating her parental rights to her two youngest children. The mother contends the termination was not in the children's best interests because (1) the children's grandmother was available and suitable to serve as custodian for the children and (2) termination would likely result in the severing of the sibling bond between these two children and their older brothers. We affirm.
This appeal does not involve the mother's two oldest children.
Background Facts and Proceedings. Melissa is the mother of twin daughters, Tristian and Jade, born June 26, 1997. In November 1998 Melissa voluntarily placed her children in HACAP Emergency Child Care and subsequently was arrested for buying crack cocaine. The juvenile court granted a temporary removal order as to the children. Following a hearing in December 1998 the court found the removal of the children from Melissa was necessary to protect the children from imminent harm. Tristian and Jade were adjudicated to be children in need of assistance (CINA) pursuant to Iowa Code section 232.2(6)(c)(2) (1997). At the dispositional hearing the parties agreed the children would be placed in foster family care.
Melissa was arrested again in August 1999 for armed robbery and later released to a residential center on March 21, 2000. After testing positive for cocaine, Melissa was incarcerated again on June 12, 2000. In July 2000 the State petitioned to terminate Melissa's parental rights. Following a hearing the juvenile court terminated her parental rights to Tristian and Jade pursuant to sections 232.116(1)(b), (e), (g) and (k). Melissa appeals.
Standard of Review. Termination proceedings are reviewed de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). Although they do not bind us, we give weight to the juvenile court's findings of fact, especially when considering credibility of witnesses. Id. The primary interest in termination proceedings is the best interests of the children. Id. The State has the burden to prove the allegations of the petition by clear and convincing evidence. Iowa Code § 232.117(2).
Preservation of Error. Melissa concedes that the statutory grounds for termination of parental rights existed at the time of the termination hearing. Rather, she contends the termination of her parental rights was not in the children's best interests as the grandmother was available and suitable to serve as a custodian. She also argues that termination would likely sever the sibling bond between these two children and their older brothers. We question whether these issues have been preserved for our review. There is no indication in the record these issues were raised in the juvenile court. An issue not presented in the juvenile court may not be raised for the first time on appeal. In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994). We therefore conclude Melissa has failed to preserve error. However, even assuming error has been preserved, we find no merit in any of Melissa's contentions.
The record is undisputed that the mother and grandmother both requested the juvenile court to dismiss the petition to terminate Melissa's parental rights with respect to her two oldest children and a permanency order be entered placing the oldest children with their grandmother. The juvenile court denied the request. Tristian and Jade were not mentioned in the motion. In addition, Melissa did not file a motion to enlarge or modify the court's findings pursuant to Iowa Rule of Civil Procedure 179(b).
Section 232.102(1)(a). Melissa argues that Tristian and Jade should be placed in foster care with their grandmother, precluding the need to terminate her parental rights. Melissa cites section 232.102(1)(a), which provides that the court may transfer legal custody of the child to a relative for purposes of placement. We have consistently stated, "Placement of a child with a relative under a permanency order is not a legally preferable alternative to termination of parental rights." In re L.M.F., 490 N.W.2d 66, 67-68 (Iowa Ct.App. 1992). "The child's best interests always remain the first consideration." In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). The record is undisputed that Tristian and Jade have resided continuously in foster family care since November 1998. There have been no trial home placements or extended visitation with any parent. We agree with the juvenile court's conclusion the children's "need for permanency, security, safety, physical and intellectual health dictate that it is in their best interests to have parental rights terminated and that they be placed for adoption." Accordingly, we affirm the juvenile court's order.
Section 232.117(3). In the alternative, Melissa argues pursuant to section 232.117(3) that the juvenile court erred by not transferring the custody of the children to the grandmother upon terminating her parental rights. We disagree. Section 232.117(3) lists the options for placement of children if the court terminates parental rights. The juvenile court has the authority to place the children with the Iowa Department of Human Services, a suitable child-placing agency, a relative or suitable person. Iowa Code § 232.117(3). "There is no statutory preference for a relative. The paramount concern is the best interest of the children." In re R.J., 495 N.W.2d 114, 117 (Iowa Ct.App. 1992). In light of our conclusions above, we affirm the juvenile court on this issue.
Separation of Siblings. We reject Melissa's claim that the children be placed with the grandmother so that they will not be separated from their older brothers. We recognize that while siblings should be kept together whenever possible, our primary concern remains the best interests of the children. T.J.O., 527 N.W.2d at 420. We have already indicated that it is in children's best interests to terminate Melissa's parental rights. In addition, the siblings have been separated for three years. The record is clear it would not be in Tristian's and Jade's best interests to now seek to establish a relationship with their older brothers. Accordingly, we affirm the juvenile court on this issue.
AFFIRMED.