Opinion
No. 3-461 / 03-0743
Filed September 10, 2003
Appeal from the Iowa District Court for Woodbury County, Timothy T. Jarman, District Associate Judge.
The State appeals the juvenile court's refusal to terminate the parental rights of a mother and father. AFFIRMED.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Dewey P. Sloan, Assistant County Attorney, appellant-State.
Lesley Rynell of the Juvenile Law Center, Sioux City, guardian ad litem for minor child.
H. Allan Sturgeon, Sioux City, for appellee-father.
Lori Ubbinga, Sioux City, for appellee-mother.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
A juvenile court denied the State's petition to terminate the parental rights of a mother and father and the State appealed. Upon de novo review of the record, we affirm.
I. Background Facts and Proceedings
Nadia A. is the mother and Arturo G. is the putative father of Arturo, born August 30, 2002. The day Arturo was born the Iowa Department of Human Services (DHS) removed him from his mother's care pursuant to an ex parte temporary removal order. The State obtained the removal order because Nadia had already had her parental rights to her three other children terminated. After a contested removal hearing, the court ordered that Arturo remain in foster care.
On October 18, 2002, the State filed a Petition for Termination of Parental Rights under Iowa Code sections 232.116(1)(b) and (g) (2003). Following a hearing, the juvenile court adjudicated Arturo to be a child in need of assistance (CINA), but dismissed the State's Petition for Termination of Parental Rights of the mother and father. The juvenile court stated:
Since the initial goal of the state was the termination of the parental rights of the parents of the child in interest, reasonable efforts were not made to promote the reunification of the child in interest in this case with his parents.
The court noted that Nadia "is presently involved in the most stable relationship of any within her recent past." The court found there was some hope for the future and ordered that Arturo remain in foster care subject to the care, custody and control of DHS. The court ordered services for the parents, continued their visitation schedule with the child, and scheduled a dispositional hearing.
On April 30, 2003, the State appealed the dismissal of the Petition for Termination of Parental Rights. The State contends the juvenile court erroneously concluded that (1) there was a sufficient difference between the mother's present situation and the circumstances surrounding the termination of her parental rights to her three older children; (2) the State had not shown by clear and convincing evidence that the offer or receipt of services would not be likely, within a reasonable period of time, to correct the conditions which led to the child's removal; and (3) the State had not shown by clear and convincing evidence that the parental rights of Arturo G., and any other unknown biological father, should have been terminated pursuant to Iowa Code section 232.116(1)(b) (abandonment). The guardian ad litem supports the State's contentions on appeal.
II. Scope of Review
The standard of review in termination cases is de novo. In re S.N., 500
N.W.2d 32, 34 (Iowa 1993). Our primary concern is the best interests of the child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
III. Analysis
The State first claims there is no difference between the mother's present situation and the circumstances which existed when her parental rights were previously terminated. We disagree. As the juvenile court observed, one important difference is that Nadia currently lives with the putative father of the child in interest. Arturo G. is not the biological father of any of Nadia's previous children. The juvenile court found this relationship to be a stable one for Nadia. In addition, the putative father and Nadia, on their own accord, sought parenting services and attended a newborn infant care class at Mercy Medical Center and a CPR class. Finally, Nadia is currently employed, has attended all of her supervised visits with Arturo, and has provided him clothing and furniture. Given these facts, we find that the juvenile court did not err in finding that sufficient differences exist between the present case and the terminations of Nadia's previous children to warrant an attempt to reevaluate the parental response to services.
The State next argues the offer or receipt of services to the father would not be likely, within a reasonable period of time, to correct the conditions which led to the removal of Arturo. The State makes this argument even though the State has not offered or provided any services to either parent since Arturo was born. Upon review of the record, we cannot say that the juvenile court erred in finding that the State did not prove by clear and convincing evidence that the offer or receipt of services would not be likely within a reasonable amount of time to correct the conditions which led to the child's removal.
Finally, the State asserts that the parental rights of Arturo G., and any other unknown biological father, should have been terminated due to abandonment. In support of this argument, the State notes that the juvenile court was not sure whether Arturo G. was the father of the child in interest and also expressed concern regarding the father's true identity. In its Order of Adjudication and Order Dismissing the Petition for Termination of Parental Rights, the court sustained a motion for paternity blood testing "to determine whether or not Arturo G. is the father of the child in interest." Presumably, testing will resolve any questions concerning paternity. Although the father is not a legal resident of the United States, the record reveals he has made numerous attempts to visit with the child, has provided money to the mother for prenatal support, and has arranged for and kept his visitation appointments. The record does not support termination on grounds of abandonment. We reject this assignment of error. We affirm the juvenile court.