Opinion
No. 4-894 / 04-1808
Filed January 26, 2005
Appeal from the Iowa District Court for Cerro Gordo County, Gerald W. Magee, Associate Juvenile Judge.
A father appeals from a juvenile court order terminating his parental rights to one child. AFFIRMED.
Charles H. Levad of Levad Law Office, Mason City, for appellant-father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, and Greg Rosenbladt, County Attorney, for appellee-State.
Mark Young, Mason City, guardian ad litem for minor child.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
A father appeals from a juvenile court order terminating his parental rights to one child. Upon our de novo review, we affirm.
Sheila is the mother, and Derrick the father, of Dameon, born in November 2002. Sheila and Derrick have apparently never been married, but lived together at times until Derrick was most recently arrested on July 1, 2003. Derrick has thereafter remained incarcerated.
Sheila and Derrick lived in Minnesota at the time of Dameon's birth. Sometime between Dameon's birth and January 15, 2003, Sheila moved with Dameon to Sheila's aunt's home in Mason City, Iowa, where Sheila's mother also lived. Although Derrick may have remained a Minnesota resident on January 15, 2003, as of that date he had been staying with Sheila and Dameon in the aunt's Mason City home for at least a day or two.
On January 15, 2003, the juvenile court entered an ex parte order for Dameon's temporary removal and placement in the temporary custody of the Iowa Department of Human Services (DHS) for placement in family foster care. Dameon has thereafter remained in the legal custody of the DHS and placement in family foster care with no trial periods at home.
Dameon was adjudicated a child in need of assistance (CINA) on April 23, 2003. On August 30, 2004, the State filed a petition seeking termination of Sheila and Derrick's parental rights. Sheila consented to termination of her parental rights. Following an October 20, 2004 termination hearing, the juvenile court entered its findings of fact, conclusions of law, and ruling on October 29. It terminated Sheila's parental rights pursuant to Iowa Code section 232.116(1)(a) (2003) (parent consents to termination). It terminated Derrick's parental rights pursuant to Iowa Code section 232.116(1)(h) (child three or younger, adjudicated CINA, removed from physical custody of parents for six of last twelve months or last six consecutive months with any trial period at home less than thirty days, cannot be returned to parents at present time). Derrick appeals.
We review termination proceedings de novo. Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. The primary interest in termination proceedings is the best interests of the child. To support the termination of parental rights, the State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).
Derrick first claims the State did not prove that Dameon was removed from his custody, a necessary element under section 232.116(1)(h). He testified, and argues on appeal, that he did not have custody of Dameon when Dameon was removed. He testified that although he had initiated an action seeking custody in Minnesota, because he wasn't married to Sheila and because no court had given him any rights to Dameon, he did not have any custody of Dameon.
We believe Derrick's argument implicates the concept of "legal custody," the right as against others to make and enforce decisions regarding a child, rather than the "physical custody" referred to in section 232.116(1)(h). Dameon was removed from the "physical custody" of his parents on January 15, 2003. He has thereafter remained in the "legal custody" of the DHS and the "physical custody" of his family foster care provider. Derrick's argument that Dameon was not removed from Derrick's physical custody is without merit.
Derrick may be seen as also arguing that Dameon was not removed from his "physical custody" because he, Derrick, remained a resident of Minnesota at the time of the removal order. However, he has not cited and we have not found any authority for the proposition that the mere fact a parent maintains legal residence in another state prevents removal of "physical custody" from a parent. We thus find no merit to this argument as well.
Derrick also claims the juvenile court improperly terminated his parental rights solely because he was incarcerated at the time of the termination hearing. For the following reasons we disagree.
Prior to the proceedings in this case Derrick had been convicted in Minnesota of criminal sexual conduct in the fourth degree and criminal sexual conduct in the third degree. He was required to register as a "predatory sex offender" in Minnesota. In February 2003 Derrick was arrested in Iowa and jailed for violation of probation. Although he was offered services during the juvenile court proceedings regarding Dameon, he was generally resistive and only minimally participated in services. Derrick has had contact with Dameon only about three times since January 15, 2003. He has not sent Dameon any cards, letters, or gifts. Derrick has provided no support for Dameon. He has no bond with Dameon.
Derrick was arrested July 1, 2003 on federal child pornography charges. He was convicted and sentenced to 262 months (twenty-one years and ten months) imprisonment, as well as five years supervised release. He has a current expected discharge date of July 2022. His convictions are on appeal. Based on a "Blakely" case pending in the federal courts he hopes to have his convictions reversed or sentences reduced. Derrick testified that if Blakely prevails in Blakely's appeal, Derrick's sentence "should drop down to about somewhere between three to four years."
The juvenile court made detailed findings of fact, including most of the foregoing facts as well as others. It terminated Derrick's parental rights not solely because of his present incarceration, but because of his criminal history, violation of probation, refusal or failure to participate in services, lack of contact with Dameon, lack of any bond with Dameon, and his present and continuing incarceration. Upon our de novo review we fully agree with the reasoning and decision of the juvenile court.