Opinion
No. 2-976 / 02-1714.
Filed December 30, 2002.
Appeal from the Iowa District Court for Polk County, GREGORY D. BRANDT, District Associate Judge.
Father appeals from the order terminating his parental rights to his son. AFFIRMED.
Patrick W. O'Bryan, Des Moines, for appellant-father.
Thomas J. Miller, Attorney General, Katherine S. Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Mark Taylor, Assistant County Attorney, for appellee-State.
Amy Kepes, Des Moines, guardian ad litem for minor child.
Considered by VOGEL, P.J., and ZIMMER and HECHT, JJ.
Tony M. is the father of R.H., born March 24, 1991. In May 2001, R.H. was removed from the home of his paternal grandmother because of allegations that she abused him while intoxicated. R.H. was placed in foster care. A child in need of assistance petition was filed and R.H. was adjudicated to be in of need of assistance. The State filed a petition to terminate parental rights. Following a subsequent hearing on the petition, the juvenile court terminated Tony's parental rights to his son by order entered October 23, 2002. On the same date, the juvenile court entered a separate order denying the paternal grandmother's application for modification of placement. The mother's parental rights were also terminated. Tony appeals.
We review termination of parental rights orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the child . In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
On appeal, Tony contends the juvenile court erred in terminating his parental rights. He does not contend the grounds for termination found by the juvenile court do not exist. Instead, he argues termination was unnecessary because his son could have been placed with a family member.
The record reveals that R.H., now age eleven, was abandoned by his mother when he was eighteen months old. He grew up living in his paternal grandmother's home. His father has an extensive criminal record. Tony is currently in federal prison. When R.H. was removed from his grandmother's care in May 2001, the Department of Human Services planned to return R.H. to his grandmother's care if she cooperated with services.
Pursuant to Iowa Code section 232.116(3)(a) (Supp. 2001), the juvenile court need not terminate the relationship between the parent and a child if a relative has legal custody of the child. The application of section 232.116(3) is within the sound discretion of the court based on the circumstances of the case before it and the best interests of the child. See In the Interest of J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). The record reveals the grandmother did not cooperate with services after R.H. was removed from her home in May 2001. In addition, there were domestic violence issues in her home. Placement with the paternal grandmother was clearly not in R.H.'s best interests. We affirm the termination order.