In the Interest of R.Q., Minor Child ( 2019 )

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.
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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.
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The father’s rights to another child were terminated, while the mother’s rights to five
other children have been terminated.
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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
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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)
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The mother has not appealed the termination of her parental rights.
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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).
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(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
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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
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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
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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.
AFFIRMED.