Opinion
No. 3-772 / 03-1464
Filed October 15, 2003
Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge.
Father appeals the termination of his parental rights to his daughter. AFFIRMED.
Hanna Weston of Nadler Weston, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Harold Denton, County Attorney, and Lance Heeren, Assistant County Attorney, for appellee-State.
Joseph Bertroche, Cedar Rapids, for mother.
Lucy Harrington, Cedar Rapids, guardian ad litem for minor child.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Jack and Vickie are the parents of Montana. The couple seems to have had a stormy relationship, involving excessive drinking and several incidents of domestic abuse. On October 4, 2002, when Vickie arrived at the hospital to give birth, she was alone and smelled of alcohol. Montana was born prematurely, has a heart defect, and is developmentally delayed as a result of severe fetal alcohol syndrome. Although Montana required a lengthy hospital stay, Vickie was released. She, however, returned only once to visit her daughter for an hour. Vickie told the hospital staff that she was unsure of the identity of Montana's father. On October 11, 2002, the Department of Human Services (DHS) sought and obtained an order to remove Montana from Vickie's custody and place her with a foster family.
At the termination hearing, Jack acknowledged he has had four felony domestic abuse charges against him in the last two years, all with Vickie as the victim.
On December 5, 2002, Jack appeared at a hearing with his attorney claiming to be Montana's father. At the time, he was incarcerated for a domestic abuse incident against Vickie, and he stipulated that Montana was a child in need of assistance. In February 2003, paternity testing determined that Jack was Montana's father.
Jack continued to be incarcerated. At one point, Jack obtained work release, but it was revoked within a week when he violated a no-contact order with Vickie. He was later released on probation, but had that revoked within two weeks because he tested positive for cocaine use.
During both of these short-lived releases, Jack had scheduled visitation with Montana; however, he was unable to follow through with the visits because he was re-incarcerated. Jack has also been unable to complete any of the other requirements of the permanency plan because of his incarceration.
The State filed a petition to terminate both Vickie and Jack's parental rights to Montana. After a hearing on August 1, 2003, the juvenile court terminated both parents' rights. Jack appeals, contending there is insufficient evidence to terminate his parental rights pursuant to Iowa Code sections 232.116(1)(e) and (h) (2003).
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the children. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
Iowa Code section 232.116(1)(h) permits termination of a parent's rights if the child is three years or younger, the child has been adjudicated a child in need of assistance, the child has been removed from the physical custody of her parents for at least six months of the last twelve months, and there is clear and convincing evidence that the child cannot be returned to the custody of the child's parents at the present time. The first three elements are clearly met, and after a de novo review of the record, we conclude the fourth element is also met.
Although several people testified at trial about Jack's professed interest in his daughter, clear and convincing evidence established Montana could not be returned to his care. Jack has never seen his daughter except in photos. At the time of trial, Jack had not completed any of the requirements of the case permanency plan. He was incarcerated at the time of trial and was not scheduled to be released until at least November 2003. When Jack had obtained work-release privileges or probation, he engaged in criminal behavior which resulted in his re-incarceration and inability to see his daughter. Although Jack suggested his daughter in California as a suitable placement for Montana until his release, there was no indication that this daughter, who has had no contact with her father until only a few months before trial, was willing to take in Montana. Accordingly, we affirm the juvenile court's termination of Jack's parental rights to Montana pursuant to Iowa Code section 232.116(1)(h).
Jack testified he would be released in November, but his parole officer testified Jack's release date was not until January of 2004.
Jack also contends there was insufficient evidence to support termination pursuant to 232.116(1)(e). Even if we found merit to Jack's argument, the juvenile court terminated Jack's parental rights on more than one statutory ground, and we will affirm if at least one ground has been proved by clear and convincing evidence. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996). Because we concluded termination was warranted pursuant to 232.116(1)(h), we affirm.