Opinion
No. 3-080 / 03-0041
Filed February 12, 2003
Appeal from the Iowa District Court for Cerro Gordo County, Gerald Magee, Associate Juvenile Judge.
Mother appeals the termination of her parental rights to two minor children. AFFIRMED.
Cynthia Foos, Mason City, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Paul L. Martin, County Attorney, and Gregg Rosenbladt, Assistant County Attorney, for appellee-State.
Mark Young, Mason City, guardian ad litem for minor children.
Jarod Harnish, Mason City, pro se.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Cassandra, the mother of Joseph and Keygan, appeals the termination of her parental rights to her sons. She contends the court erred in failing to consider the close bond between her and her sons, and severing that bond would be so harmful to the children that termination is not in their best interests. She does not contest either of the statutory grounds on which the court terminated her parental rights: Iowa Code section 232.116(1)(d) (failure to maintain significant and meaningful contact) and (g) (child not able to be returned to parent's care) (2001).
Under section 232.116(3)(c) a court "need not" terminate upon "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." 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). "It is in the court's discretion, based upon the unique circumstances of each case and the best interests of the child, whether to apply the factors in section 232.116(3)." In re A.J., 553 N.W.2d 909, 916 (Iowa Ct.App. 1996). There is some evidence of a bond between Cassandra and her sons. However, because Cassandra failed to maintain significant and meaningful contact with her sons, the factors in section 232.116(3) do not apply in this case. See id. (terminating parental rights under 232.116(1)(d) even though the factors of section 232.116(3)(b) (child over ten years old objects to termination) and (c) (termination detrimental because of closeness of parent child relationship)). She has missed a third of the scheduled visits, she cut visits short, and fell asleep during some. The juvenile court is affirmed.