Opinion
No. 3-153 / 03-0090.
Filed February 28, 2003.
Appeal from the Iowa District Court for Polk County, Karla J. Fultz, Associate Juvenile Judge.
A mother appeals the termination of her parental rights to her child. AFFIRMED.
Bryan Tingle, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, and Martha Johnson, Assistant County Attorney for appellee-State.
Yvonne Naanep, Des Moines, guardian ad litem for minor child.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Aimee H. and Alex P. are the parents of A.H., born October 10, 1997. Aimee is also the mother of two other children, born in 2000 and 2001. Her parental rights to those children were terminated in September 2002.
A.H. was adjudicated a child in need of assistance in 1998. Despite receiving numerous services over a five-year period, Aimee is still unable to parent her daughter. On September 18, 2002, A.H.'s guardian ad litem filed a petition to terminate Aimee's parental rights. On December 30, 2002, the juvenile court terminated Aimee's parental rights pursuant to Iowa Code sections 232.116(1)(e), (f) and (i) (Supp. 2001). The putative father's parental rights were also terminated. The father has abandoned A.H. and his whereabouts are unknown. On appeal, Aimee does not dispute the grounds for termination were met, but contends the court erred in terminating her parental rights because custody of A.H. could be placed with a relative pursuant to section 232.116(3)(a).
We review termination of parental rights orders de novo. In re C.H., 652 N.W.2d 144, 147 (Iowa 2002). Our primary concern is the best interests of the child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
Iowa Code section 232.116(3)(a) states that the court need not terminate parental rights if the child is in the legal custody of a relative. The record reveals the court allowed Aimee's sister to intervene in these proceedings in March 2002. On November 14, 2002, the date of the termination hearing, Aimee conceded that A.H. was happy in her foster home placement but argued A.H. should be with her family. A.H.'s foster mother testified that she was doing wonderfully in her care and often saw one of her sisters. Aimee's sister was present at the termination hearing but failed to make any record.
A.H. was not in the legal custody of a relative at the time of the termination. Even if a relative had legal custody of the child, section 232.116(3)(a) is permissive, not mandatory. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). It is within the discretion of the juvenile court, based on the circumstances before it and the best interests of the child, whether to apply this section. Id.
We agree with the juvenile court that termination is in the child's best interest in this case. A.H. has been removed from her mother's care on at least five occasions during the past five years. The mother has not seen A.H. since November or December of 2001. Aimee has a number of problems which continue to make her home unsafe for her children. She has not benefited from the many services she has received. She is unable to support A.H., and admitted in testimony that she was not able to care for her daughter at the time the termination hearing was held. The child is in a pre-adoptive home where her needs are being met. The record reveals the relative who was allowed to intervene by the court did not complete the training necessary to allow her to be considered as either a foster or an adoptive home. Notably, the trial court pointed out that A.H. is not acquainted with the intervenor. The State has an obligation to establish child custody quickly so that child does not suffer indefinitely in parentless limbo. In re C.M., 652 N.W.2d 204, 211 (Iowa 2002). Our de novo review of the record reveals termination was proper. Accordingly, we affirm the juvenile court.