Opinion
No. 3-643 / 03-1228
Filed August 27, 2003
Appeal from the Iowa District Court for Muscatine County, John G. Mullen, District Associate Judge.
M.F. appeals from the termination of his parental rights to J.F. AFFIRMED.
Esther Dean, Muscatine, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Gary Allison, County Attorney, and Korie Shippee, Assistant County Attorney, for appellee-State.
Philip Fontana of Muscatine Legal Services, Muscatine, guardian ad litem for minor child.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
I. Background Facts Proceedings
Michael and Jennifer are the parents of Jessica, born in January 2002. Jessica was removed from the home in April 2002, after she received a serious head injury and the parents were unwilling or unable to provide a plausible explanation for the injury. She was placed with a great-aunt. Jessica was adjudicated to be a child in need of assistance.
The parents have intellectual and functional limitations. The parents had an unstable relationship, separating several times, then getting back together. They also had unstable housing; at times they were homeless or living in shelters. Michael, in particular, was not consistent in attending visitation. At one time he consented to termination of his parental rights, but later revoked his consent.
In March 2003 the State filed a petition to terminate the parents' rights. The juvenile court terminated the parents' rights pursuant to Iowa Code section 232.116(1)(h) (2003). The court noted the parents had limited parenting skills, and determined Jessica would be subject to a high risk of physical abuse, neglect, or failure of supervision if returned to their care. The court found Jessica did not have a significant bond or attachment to the parents. Michael appeals.
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 S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999).
III. Sufficiency of the Evidence
Michael contends the State did not present sufficient evidence to show Jessica could not be returned to his care. He claims he made significant progress in services. On our de novo review, we find clear and convincing evidence Jessica could not be safely placed in Michael's care. Michael has limited knowledge of child development or proper parenting techniques. Furthermore, Michael's interest in Jessica ebbed and flowed throughout this case. His failure to participate in all visitation showed a lack of commitment to his child.
IV. Best Interests
Michael claims termination of his parental rights is not in Jessica's best interests. He points out that Jessica is living with a relative, and that under section 232.116(3)(a), termination of parental rights is not mandatory in these circumstances.
Under section 232.116(3)(a), the juvenile court need not terminate parental rights if a relative has legal custody of a child. Section 232.116(3) has been interpreted to be permissive, not mandatory. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). It is within the sound discretion of the juvenile court, based upon the unique circumstances before it and the best interests of the child, whether to apply this section. Id. We must consider a child's long-range and immediate best interests. Id.
We find the juvenile court did not abuse its discretion in terminating Michael's parental rights. The court carefully considered whether to terminate the parents' rights or to grant a guardianship to the great-aunt. The court concluded, "adoption of Jessica by her great-aunt would be in the child's best interests, because it provides the most stability for the child." We concur in the juvenile court's conclusions.
We affirm the decision of the juvenile court.