Opinion
No. 2-546 / 01-1582.
Filed July 19, 2002.
Appeal from the Iowa District Court for Polk County, CONSTANCE COHEN, Associate Juvenile Judge.
The father appeals a juvenile court order terminating his parental rights. AFFIRMED.
Christopher Kragnes, Sr. and Tiffany Koenig, Des Moines, for appellant.
Nancy Pietz, Des Moines, for mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Corey McClure, Assistant County Attorney, for appellee-State.
Laurie Ristau Richardson, Urbandale, guardian ad litem for minor child.
Considered by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
The father appeals a juvenile court order terminating his parental rights. Shannon, the mother, also had her parental rights terminated but is not part of this appeal. We affirm.
Shawn is the biological father of DeShawn, born on February 5, 1990. DeShawn came to the attention of the juvenile court on July 17, 2000, when his younger sibling tested positive for cocaine and THC at birth. DeShawn was removed from his mother's care and placed with his maternal grandparents, where he has lived most of his life. Shawn has been incarcerated for first-degree robbery and thus unable to be a primary caretaker for DeShawn. While he has never provided child support, Shawn did maintain contact with DeShawn and provided him with cards and gifts while incarcerated. The record is clear Shawn used drugs while on work release and eventually walked away from the work release facility. Upon apprehension, Shawn was returned to prison. On April 17, 2001, the State filed a petition to terminate parental rights. Following a termination hearing, the juvenile court terminated parental rights pursuant to Iowa Code section 232.116(1)(d) (Supp. 2001). Shawn appeals.
In its order terminating parental rights, the court cites to Iowa Code section 232.116(1)(c). However, the applicable law in this termination is correctly cited as Iowa Code section 232.116(1)(d) (Supp. 2001) due to an amendment to section 232.116 that renumbered the sections but did not substantively alter them.
The actual grounds for the termination of Shawn's parental rights under section 232.116(1)(d) are not being contested or appealed. Shawn concedes the grounds for termination have been met. Rather, Shawn contends the juvenile court should not have terminated his rights because DeShawn was in the custody of a relative and termination would be detrimental to him due to the closeness of the parent-child relationship.
Iowa Code sections 232.116(3)(a) and (c) provide, in relevant part:
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.
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(c) There is clear and convincing evidence that the termination would be detrimental to the child at the time due to the closeness of the parent-child relationship.
Iowa Code § 232.116(3)(a), (c). 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.
We agree with the juvenile court that termination should not be avoided under sections 232.116(3)(a) and (c). DeShawn's best interests are served by termination of Shawn's parental rights. We affirm the decision of the juvenile court.
AFFIRMED.