In the Interest of R.Q., Minor Child

• Court: Court of Appeals of Iowa
• Decided: November 27, 2019
• Docket: 19-1410
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-1410 Filed November 27, 2019

IN THE INTEREST OF R.Q., Minor Child,

R.J., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Colin J. Witt, District

Associate Judge.

A father appeals the juvenile court order terminating his parental rights.

AFFIRMED.

Marcy Lundberg of Lundberg Law Firm, Indianola, for appellant father.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

ConGarry D. Williams of Juvenile Public Defender Office, Des Moines,

attorney and guardian ad litem for minor child.

Considered by Doyle, P.J., and Tabor and Schumacher, JJ. 2

SCHUMACHER, Judge.

A father appeals the juvenile court order terminating his parental rights. We

find the court properly determined in the permanency order the child should remain

in foster care with his half-sibling rather than moving to the home of the father’s

cousin. We find termination of the father’s parental rights is in the child’s best

interests and none of the exceptions to termination should be applied. We affirm

the decision of the juvenile court.

I. Background Facts & Proceedings

R.J., father, and S.T., mother, are the parents of R.Q., born in 2018. 1 The

parents have experienced problems with mental health and drug addiction, in

addition to concerns with criminal behavior. The child was removed from the

parents’ care on July 20, 2018, as both of the parents were in prison on drug-

related charges and were unable to care for the child. The child was placed in

foster care with A.A. and D.A., who had adopted one of R.Q.’s half-siblings on the

mother’s side.

A combined child in need of assistance (CINA) adjudication and

dispositional order was filed on November 23, 2018. The child was adjudicated

CINA pursuant to Iowa Code section 232.2(6)(c)(2) and (n) (2018). The court ruled

the temporary legal custody and guardianship of the child was with the Iowa

Department of Human Services (DHS) “for purposes of family foster care.” The

child continued in the care of A.A. and D.A.

1 The father’s rights to another child were terminated, while the mother’s rights to five other children have been terminated. 3

In a February 25, 2019 order, the court changed the permanency goal from

reunification to termination of parental rights. The court stated, “It is fairly

anticipated that both parents will be incarcerated for the next decade or more.”

The father asked to have the child placed with his cousin, S.K. The court found

S.K. would be “an excellent relative placement option,” but determined it would be

in the child’s best interests to keep him in his current placement with a half-sibling.

The father filed a motion to reconsider under Iowa Rule of Civil Procedure 1.904(2).

The court denied the request to change the placement of the child.

On March 26, the State filed a petition seeking to terminate the parents’

rights. The father was in federal prison and participated by telephone in the

termination hearing. He testified he expected to remain in prison until 2031. The

father admitted he could not have the child returned to his care at the time of the

hearing. He again asked to have the child placed with S.K. S.K. appeared at the

hearing and asked to have the child placed in her care. She stated she was willing

to have the child stay in contact with his current foster family, including his half-

sibling.

The juvenile court terminated the parents’ rights under section 232.116(1)(j)

(2019), finding, “Both parents are imprisoned and it is unlikely the parents will be

released from prison for five years or more.” The court found termination was in

the child’s best interests. The court stated, “This allows young [R.Q.] to stay in the

only home he has ever known. This allows for young [R.Q.] to be with his biological

sibling. This meets [R.Q.’s] needs for safety and stability and permanency.” The 4

court determined none of the exceptions to termination should be applied. The

father appeals.2

II. Standard of Review

Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d

764, 773 (Iowa 2012). “‘Clear and convincing evidence’ means there are no

serious or substantial doubts as to the correctness [of] conclusions of law drawn

from the evidence.” In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citation omitted).

Our primary concern is the best interests of the child. In re J.S., 846 N.W.2d 36,

40 (Iowa 2014).

III. Placement of Child

The father claims the juvenile court should have placed the child with his

cousin, S.K., at the time of the permanency hearing, rather than keeping the child

in foster care. He states it would be better for the child to be placed in a family

with biological connections to him. He contends relatives should be given priority

in placement decisions.

Prior to the termination of parental rights, “chapter 232 favors relative

placements over nonrelative placements.”3 In re N.M., 528 N.W.2d 94, 97 (Iowa

1995). Also, DHS should strive to maintain sibling relationships, unless there is

clear and convincing evidence the relationship would be detrimental to the child.

In re A.J., No. 13-0216, 2013 WL 1227360, at *3 (Iowa Ct. App. Mar. 27, 2013)

2 The mother has not appealed the termination of her parental rights. 3 After a parent’s rights have been terminated “there is no statutory preference for placement with a relative.” In re A.S., 906 N.W.2d 467, 477 (Iowa 2018). Additionally, after termination of a parent’s rights, the parent no longer has standing to challenge actions by the juvenile court, including placement of the child. See In re M.N.W., 577 N.W.2d 874, 875–76 (Iowa Ct. App. 1998). 5

(citing Iowa Code § 232.108(1), (4)). In determining a placement for a child, our

primary concern is the best interests of the child. See J.S., 846 N.W.2d at 40.

The State cites to In re L.B., No. 18-1165, 2018 WL 4361066, at *2 (Iowa

Ct. App. Sept. 12, 2018), which provides:

Once the juvenile court selected IDHS to serve as the child’s custodian, it was not the juvenile court’s place to select the particular physical placement of the child. Instead, IDHS, as legal custodian of the child, was vested with the authority to select the particular foster care placement subject to the juvenile court’s review. See Iowa Code § 232.2(11)(b)(1) (providing the custodian has the right to “maintain or transfer to another the physical possession of that child”).

In the joint adjudication and dispositional order the court placed temporary

legal custody and guardianship of the child with DHS “for purposes of family foster

care.” DHS continued entrusting the care of the child to A.A. and D.A., with whom

the child had been placed upon removal from the parents’ care on July 20, 2018.

In November 2018, S.K. indicated to DHS she was interested in having the child

placed in her care. S.K.’s mother has custody of the child’s half-sibling on the

father’s side and S.K. testified, “I go to my mother’s a lot.”

In the permanency order filed on February 25, 2019, the juvenile court

stated:

The Court accepts that [S.K.] appears to be an excellent relative placement option. The record is that both biological parents would like [S.K.] to be the custodian of the child, it is unclear whether they would prefer that under a guardianship or via termination/adoption. The child . . . is 7 months old. He is placed with a biological sibling. He has formed attachments in the home where he has been placed since his birth. Both homes provide some relative connections. [S.K.]’s home clearly provides more relative connections for this child. However, the only home this child has known over his seven months of life also provides an important biological sibling connection. It is this later 6

concern that sways the undersigned that it is in this child’s best interest not to disrupt his placement and that is in his short term and long term best interest for his emotional health and well being. This decision is by the slimmest of margins, as the Court noted on the record that both homes appear to be able to provide this child with unconditional love and supports and desire to be his permanent placement.

In the termination order, the court again noted the home of A.A. and D.A. was the

only home the child had ever known.

We conclude the juvenile court acted in the child’s best interests by

determining the child should remain in the home of A.A. and D.A., rather than being

moved to the home of S.K. While S.K. is the father’s cousin, she did not express

an interest in having the child placed in her care until November 2018, when the

child had already begun to build relationships with A.A. and D.A. and with the

child’s half-sibling who was in their care. S.K.’s mother has custody of another of

the child’s half-siblings, but that child does not live in the same home as S.K. We

agree with the juvenile court’s conclusion the child should remain in “the only home

this child has known over his seven months of life [and which] also provides an

important biological sibling connection.”

IV. Best Interests

The father claims termination of his parental rights is not in the child’s best

interests. He states, “Courts are not free to take children from parents simply by

deciding another home offers more advantages,” citing In re C. & K., 322 N.W.2d

76, 81 (Iowa 1982).

In considering the best interests of a child, we “give primary consideration

to the child’s safety, to the best placement for furthering the long-term nurturing

and growth of the child, and to the physical, mental, and emotional condition and 7

needs of the child.” In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (quoting Iowa Code

§ 232.116(2)). “It is well-settled law that we cannot deprive a child of permanency

after the State has proved a ground for termination under section 232.116(1) by

hoping someday a parent will learn to be a parent and be able to provide a stable

home for the child.” Id. at 41.

We find termination of the child’s parental rights is in the child’s best

interests. The father was in federal prison on drug charges and did not expect to

be released until 2031. Even after being released, the father would still need to

address his mental-health and substance-abuse problems. The juvenile court

found the child needed “safety and stability and permanency.” We concur in the

court’s findings. The child should not have to wait for his father to be in a position

to care for him.

V. Exceptions

The father asserts the juvenile court should have placed the child with a

relative, S.K., and then applied the exception to termination found in section

232.116(3)(a), which states the court may decide to not terminate a parent’s rights

if “[a] relative has legal custody of the child.” We have determined the juvenile

court properly concluded the child should remain in foster care with the child’s half-

sibling, so the exception in section 232.116(3)(a) does not apply to the facts of this

case.

The court considered all of the exceptions in section 232.116(3) and found,

“no exception should be applied to prohibit termination in this case.” The

exceptions in section 232.116(3) “are permissive, not mandatory.” A.S., 906

N.W.2d at 475. “We may use our discretion, ‘based on the unique circumstances 8

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. (citation omitted). We conclude

none of the exceptions to termination should be applied in this case.

We affirm the decision of the juvenile court.