Opinion
No. 2-1055 / 02-1874
Filed January 15, 2003
Appeal from the Iowa District Court for Polk County, Donna L. Paulsen, Judge.
Mother appeals an order terminating her parental rights to one child. AFFIRMED.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Sarcone, County Attorney, and Martha Johnson, Assistant County Attorney, for appellee State.
Bryan Tingle, Des Moines, for appellant mother.
Ryan Moorman, Des Moines, for father.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Christine Bisignano, West Des Moines, guardian ad litem for minor child.
Betty and Darrin are the unmarried parents of eight-year-old Dallas. Betty is also the mother, by two other fathers, of Stacy and Karri. On January 30, 2001, the juvenile court adjudicated the three children to be in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(n) (Supp. 2001).
On August 20, 2002, the State filed a petition to terminate the parental rights of the three children's parents. Following trial, the juvenile court terminated Betty's parental rights to Dallas pursuant to Iowa Code sections 232.116(1)(d), (f), and (l) (Supp. 2001). It also terminated Darrin's parental rights to Dallas, and terminated the parental rights of other fathers and putative fathers to Betty's two daughters, Stacy and Karri. The juvenile court declined to terminate Betty's parental rights to Stacy and Karri, as they were almost sixteen and eighteen years of age respectively at the time of the termination hearing. In the juvenile court's opinion their situations were substantially different than that of Dallas because of their ages and the resulting fact that "Dallas alone has the opportunity to be adopted and to leave this dysfunctional family." Betty appeals the termination of her parental rights to Dallas.
We review termination proceedings de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). Our primary interest is the best interests of the children. Id.
Betty does not claim the State failed to prove the grounds for termination under the relevant Code sections. Rather, she first argues termination of her parental rights to Dallas was not in his best interests as his father, Darrin, was able to take custody of Dallas at the time of the termination hearing. She argues that the juvenile court should have exercised its discretion under Iowa Code section 232.116(3)(a) (2001) (stating court need not terminate if it finds a relative has legal custody of the child). Although not expressly so stating, her argument appears to be that Darrin's parental rights should not have been terminated, Dallas should have been placed in Darrin's custody, and under such circumstances the juvenile court should have exercised its discretion in favor of not terminating her parental rights.
For two reasons we find Betty's first argument to be without merit. First, for section 232.116(3)(a) to be applicable Dallas had to be in the custody of a "relative" at the time of the termination hearing. Not only is there no evidence that he was in the custody of a relative, in fact uncontroverted evidence is to the contrary. At the time of the termination hearing Dallas had for at least several months been in the custody of the Iowa Department of Human Services (DHS) and had been placed in foster care. Section 232.116(3)(a) thus has no application under the facts of this case. Second, Darrin's parental rights were also terminated. Although he filed a notice of appeal from the termination order, he did not pursue the appeal and it was dismissed by December 20, 2002 order of our supreme court. Any question of Dallas being placed with Darrin as a "relative" is thus moot.
Betty also argues termination of her parental rights to Dallas was not in his best interests because of the closeness of the parent-child relationship. See Iowa Code § 232.116(3)(c) (Supp. 2001) (stating court need not terminate if it finds clear and convincing evidence that termination would be detrimental to the child because of the closeness of the parent-child relationship. She relies on the testimony of Dallas's therapist that (1) if parental rights to Dallas were terminated, "in the short-term [Dallas will] be relieved or he'll be pretty sad," and (2) if parental rights to Dallas were terminated it would be better for Dallas if neither he nor Stacy had contact with Dallas's parents as Dallas would be angry and find it hard to understand if Stacy maintained contact with them and he couldn't do so.
The factors in section 232.116(3) are permissive, not mandatory. In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct.App. 1993); In re J.V., 464 N.W.2d 887, 890 (Iowa Ct.App. 1990). It is within the juvenile court's sound discretion, based upon the unique circumstances of the case before it and the best interests of the child, whether to apply a factor in section 232.116(3). See In re J.V., 464 N.W.2d at 890. We must consider a child's long-range best interests as well as immediate best interests. In re A.B., 492 N.W.2d 446, 450 (Iowa Ct.App. 1992).
Dallas has been in temporary and unsettled circumstances since relatively shortly after CINA proceedings commenced in November 2000. He was placed in DHS custody, then placed in his grandmother's custody, next placed in Darrin's custody, then returned to his grandmother's custody, and thereafter was removed and again placed in DHS custody and foster care, where he remained at the time of the termination hearing. Dallas's therapist, his court-appointed special advocate, his in-home counselor, and his guardian ad litem all recommend termination of his parents' parental rights, as is requested by the State. Darrin's relationship with his parents has for years fallen short of a true, full, and fulfilling parent-child relationship as the evidence clearly and convincingly shows that his sister, Stacy, has provided a great deal of his care and he has looked to her for that care. As found by the juvenile court, the bond between Dallas and his parents is described by persons involved in the juvenile court proceedings as "inappropriate."
Upon our de novo review we agree with the juvenile court's express finding and express conclusion that termination of Betty's parental rights is in Dallas's best interests. We therefore also agree with its implicit finding there is not clear and convincing evidence termination would be so detrimental to Dallas that discretion should be exercised in favor of not terminating Betty's parent-child relationship with him.