Opinion
No. 3-469 / 03-0886
Filed July 10, 2003
Appeal from the Iowa District Court for Des Moines County, Mark Kruse, District Associate Judge.
A mother and child appeal from the district court's order terminating the mother's parental rights. AFFIRMED.
William Monore, Burlington, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Patrick Jackson, County Attorney, and Pamela Dettman, Assistant County Attorney, for appellee State.
Ronald Ellerhoff, Burlington, for minor child.
Considered by Zimmer, P. J., and Hecht and Eisenhauer, JJ.
The mother and guardian ad litem appeal from the district court's order terminating the mother's parental rights to her child. They do not argue the State failed to prove the statutory grounds for termination, but contend the child should have been placed in the care of a relative in lieu of termination. We review this claim de novo. In re C.H., 652 N.W.2d 144, 147 (Iowa 2002).
In March 2002, the child was removed from the mother's care at four days of age and placed in foster care. After the child's adjudication as a child in need of assistance and throughout the course of the proceedings, the mother and the guardian ad litem advocated for relative placement. One relative was disqualified as a potential placement due to her age and poor health. A home study was conducted on the mother's sister, who lived in Arizona. Although the home study was favorable, the district court declined to place the child with the sister in Arizona because the goal at the time was reunification with the mother. In January 2003, the sister testified that she no longer lived at the address where the home study was conducted, but instead lived with a daughter and her family. The sister was unemployed due to an illness. Therefore, she was not a proper relative placement at the time of termination.
In September 2002, a first cousin of the mother contacted the Department of Human Services seeking to provide relative placement. Again, the home study was favorable. However, the court noted the cousin had never had any contact with the child. Additionally, the cousin lived away from the child's three siblings and had little contact with them. In the child's foster care placement, he maintains contact with his siblings. The child's foster parent, with whom the child has lived nearly his entire life, has also indicated a desire to adopt him.
The mother and child ask this court to reverse the district court's termination order and instead find the child to be in need of assistance. They further ask this court to instruct the Department of Human Services to explore all possible relative placements and, if possible, secure a relative placement for the child.
Iowa Code section 232.116(3)(a) (2001) states that the court need not terminate parental rights if the child is in the legal custody of a relative. However, section 232.116(3)(a) is permissive, not mandatory. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). The juvenile court has the discretion to apply this section, and not terminate parental rights based on the circumstances before it and the best interests of the children. Id. The district court found the best interest of the child warranted permanency and declined to delay termination of the child for further hearings given the multiple hearings at which the issue of relative placement had been addressed. Having found the grounds for termination had been met, the district court concluded the best interest of the child would be served by placing the child in the custody and guardianship of the Department of Human Services for adoption. The Department was directed to find an adoptive home with input from prospective adoptive families. We concur in the district court's conclusions, and accordingly affirm.