Opinion
No. 3-673 / 03-1291
Filed October 15, 2003
Appeal from the Iowa District Court for Polk County, Gary Kimes, Judge.
Father appeals the termination of his parental rights to his three children. AFFIRMED.
Edward Bull, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Justin Allen, Assistant County Attorney, for appellee-State.
Alexandra Nelissen of the Nelissen Law Office, Des Moines, guardian ad litem for minor children.
Jeffrey Carter, Des Moines, for appellee-mother.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
James is the father of three children: Hailey, born March 5, 1994; Aerial, born May 30, 1995; and Ryan, born August 14, 1997. James and Audrey, the children's mother, divorced in 1996, but reunited in September 2000, when James was released from prison.
In August 2001, the Department of Human Services (DHS) concluded that both parents had denied the children critical care. During the child protective assessment, DHS discovered the couple had a history of domestic violence. To avoid having the children removed and placed in foster care, James left the family home. Audrey reported to DHS that James had left the state.
The children were adjudicated children in need of assistance on November 29, 2001. In January, James returned to Des Moines and began calling Audrey. Out of fear of James, Audrey moved herself and the children in with her mother. A no-contact order was entered between James and the family on January 13, 2002. In March, James violated the no-contact order and was arrested.
In May, a review hearing was held, and, at James' request, the no-contact order was modified so James could send the children letters and gifts. James informed the court he was entering a drug treatment program. He was instructed to provide drug screens, cooperate with drug treatment, and keep DHS informed of his whereabouts. While James was in the drug treatment program, he wrote several letters to his children and sent Ryan a birthday present. In October, James was discharged from the drug treatment program for a rule violation and apparently fled the state again.
The State filed a petition to terminate James' parental rights in April of 2003. At the hearing in July 2003, James testified, by telephone, that he was currently incarcerated at the Southwest Arkansas Community Correction Center, a drug treatment facility. He testified that he entered the facility in November of 2002 and expected to be released in March of 2004. James acknowledged that he is addicted to methamphetamine, that he has not supported his children financially since he left the home, that he has had no contact with his children since August of 2001 except for the few letters he sent while he was incarcerated in Iowa, and that he has a history of domestic violence.
The juvenile court terminated James' parental rights to Hailey, Aerial, and Ryan pursuant to Iowa Code sections 232.116(1)(b), 232.116(1)(e), and 232.116(1)(f) (2003). James appeals.
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the children. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
James first contends there was insufficient evidence that the children had been "removed" from his physical custody as required for termination pursuant to sections 232.116(1)(e) and (f). Specifically, James argues the children were not "removed" from his care because he voluntarily left the family home. However, our review of the record indicates James left the home to avoid the children's removal and placement in foster care. When the children were adjudicated CINA on November 29, 2001, the juvenile court placed the children in the custody of their mother. At the termination hearing, James acknowledged that he had not seen his children in nearly two years. We conclude the children were "removed" from James' custody as required by sections 232.116(1)(e) and (f).
James also argues that because his children are in their mother's custody, the juvenile court should have declined to terminate his parental rights. He maintains the juvenile court should have applied the exception for termination found in section 232.116(3)(a) when the children are in relative placement. The State responds that James failed to preserve error on this issue, and we agree. This issue was also not raised below, and we will not address it. In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994).
James further contends there was not clear and convincing evidence that he abandoned or deserted his children to support termination under section 232.116(1)(b). Even if we found merit to James' argument, the juvenile court found termination warranted under three separate sections of the Iowa Code. While the district court terminated the parental rights on more than one statutory ground, we will affirm if at least one ground has been proved by clear and convincing evidence. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996). Because James' challenge to the termination of his parental rights under 232.116(1)(e) and (f) were unsuccessful, we affirm the juvenile court decision.
AFFIRMED.
Miller, J., concurs; Sackett, C.J., dissents.
The State has sought to terminate the parental rights of J.B., the father of three children born in 1994, 1995 and 1997. The children remain in the custody and control of their mother. Testimony indicated the mother will not have assistance from anyone else with their financial support, and that there is no pending adoption.
In terminating J.B.'s parental rights the juvenile court relieved J.B. of any further support obligation to his children. Granted, at this point J.B. is in a correctional institution that focuses on drug treatment. However, he is scheduled to be released in May of 2004. Testimony indicated J.B. has been working toward his boiler's license and that there is a market for boilers near his parents' home, where he will be released. According to the testimony, boilers earn between fifteen and twenty dollars an hour. There is every reason to assume that upon release J.B. will become gainfully employed and capable of contributing to the financial support of his children. It is not in the children's interest to relieve J.B. of this support obligation through termination.