Opinion
No. 1-985 / 01-1072.
Filed January 28, 2002.
Appeal from the Iowa District Court for Polk County, DONNA PAULSEN, Judge.
The father appeals a juvenile court order terminating his parental rights. AFFIRMED.
Tiffany Koenig and Christopher Kragnes, Sr., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John P. Sarcone, County Attorney, and Jennifer Navis, Assistant County Attorney, for appellee-State.
Kimberly Ayotte of the Youth Law Center, Des Moines, for minor child.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
The father appeals a juvenile court order terminating his parental rights. Kimberly, the mother, also had her parental rights terminated but is not part of this appeal. We affirm.
Background Facts and Proceedings. Vance is the father of Constance, born May 14, 1999. This case came to the attention of the Iowa Department of Human Services (DHS) due to Kimberly not adequately providing for Constance. Kimberly previously had her parental rights terminated to another child, and circumstances had not changed since that termination. As a result, in November 1999 Constance was removed from her mother's custody and placed in the custody of her maternal grandparents. At the time of removal Vance was incarcerated and has been since Constance was two months old.
Vance agreed to paternity testing in May 2000, and it was determined that he is the father of Constance.
In January 2000 Constance was adjudicated to be a child in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(c)(2) and (n) (1999). A dispositional hearing was held in March 2000. That same month Vance signed a consent to terminate his parental rights. On May 12, 2000, Constance was returned to her mother's care upon the condition that Kimberly reside at the House of Mercy under DHS supervision. On June 15, 2000, the State filed a petition to terminate Vance's parental rights. Vance later withdrew his consent to termination of his parental rights. Consequently, the termination hearing was continued until January 2001.
On December 29, 2000, Kimberly left the House of Mercy knowing that she would lose custody of Constance if she left the program. Constance was removed and again placed with her maternal grandparents. Constance has remained with her maternal grandparents since that time. As a result, the State amended its petition to terminate Kimberly's parental rights. The termination hearing was continued until April 2001. During the termination hearing on April 4, 2001, Vance's attorney made a motion to dismiss the petition. The court denied the motion but continued the hearing until May 23, 2001. Following the termination hearing the juvenile court terminated Vance's parental rights pursuant to section 232.116(1)(g). Vance appeals.
Termination of Parental Rights. Vance contends the juvenile court erred by denying his motion to dismiss, as the evidence is insufficient to support termination of his parental rights under section 232.116(1)(g). We review termination proceedings 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 child. Id. The State has the burden to prove the allegations of the petition by clear and convincing evidence. Iowa Code § 232.117(2).
The court terminated Vance's rights pursuant to section 232.116(1)(g), which provides the court may terminate a parent's rights if it finds all of the following have occurred:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of the child's parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days.
(4) There is clear and convincing evidence that the child cannot be returned to the custody of the child's parents as provided in section 232.102 at the present time.
Iowa Code § 232.116(1)(g). Vance does not challenge the juvenile court's findings regarding elements one, two and four. He does, however, assert the State did not prove the third element by clear and convincing evidence. He claims the juvenile court erred by finding his child had been removed from his physical custody for six months of the last twelve months or for the last six consecutive months. Specifically, he argues that since Constance resided with her mother from May 12, 2000, to December 29, 2000, the State has failed to prove the temporal element of its claim under section 232.116(1)(g)(3). We disagree.
The question before us is whether the State proved by clear and convincing evidence the child was removed from Vance's, not Kimberly's, physical custody for the duration specified by the statute. After a careful de novo review of the record, we affirm the termination of Vance's parental rights. Our supreme court has held that section 232.116(1)(g) allows for the parental rights of a noncustodial parent to be terminated if the parent has not had contact with the child for the time limits specified by statute. In re S.J., 620 N.W.2d 522, 526 (Iowa Ct.App. 2000). Vance has been imprisoned for all but two months of Constance's young life. He has had no contact with Constance since July or August 1999. As a result, the required removal time set forth in section 232.116(1)(g)(3) has elapsed. See id. In addition, there was no chance of immediate reunification, as Vance was still incarcerated.
There was also little chance of imminent reunification. Vance himself acknowledged at the termination hearing that although he was scheduled to be released from prison six months after the hearing, he was not ready to assume full-time childcare responsibilities. He admitted that it would realistically take a year or two after being released from prison and completing his work release program to establish a home environment suitable for his daughter. "We have repeatedly stated that patience with parents should be limited to avoid intolerable hardship to the child." Id. This is such a case. Accordingly, we conclude the juvenile court properly denied Vance's motion to dismiss.
Continuance of the Termination Hearing. Vance argues the juvenile court abused its discretion when it continued the termination hearing on its own motion and allowed the State to reopen its case and offer additional evidence. We disagree.
Whether to grant or deny a motion for continuance is at the discretion of the juvenile court. In re J.L.L., 414 N.W.2d 133, 135 (Iowa 1987). Such a decision will be overturned on appeal only where there has been a clear abuse of discretion and injustice has been done to the party who appeals. Id. An abuse of discretion is found where the juvenile court's action was unreasonable under the attendant circumstances. Id. In addition, in a juvenile proceeding tried to the court, the court has broad discretion to reopen the evidence. In re J.R.H., 358 N.W.2d 311, 318 (Iowa 1984). "Such discretion is to be liberally exercised." Id.
The record is clear that although the court allowed the State the opportunity to amend its petition or present additional evidence, the State did not amend the petition nor did the State present additional evidence at the second hearing. In addition, there has been no showing that Vance was in any way prejudiced by having an additional period of time to prepare himself for parenthood. Under these circumstances, we conclude the juvenile court did not abuse its discretion.
Section 232.116(3)(a). Vance contends the juvenile court erred in failing to consider the exception to termination as set forth in section 232.116(3)(a). The relevant portion of this section states:
3. The court need not terminate the relationship between the parent and child if the court finds any of the following:
(a) A relative has legal custody of the child.
Iowa Code § 232.116(3)(a). A termination, otherwise warranted, may be avoided under this exception. In re D.E.D., 476 N.W.2d 737, 738 (Iowa Ct.App. 1991). The factors under section 232.116(3) have been interpreted by the courts as being permissive, not mandatory. In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct.App. 1993). The words "need not terminate" are clearly permissive. Id. The court has discretion, based on the unique circumstances of each case and the best interests of the child, whether to apply the factors in this section to save the parent-child relationship. Id.
In light of our conclusion above that Vance's parental rights should be terminated, we decline to apply the exception. The juvenile court properly exercised its discretion in this case.
AFFIRMED.