IN THE COURT OF APPEALS OF IOWA
No. 14-0021
Filed March 12, 2014
IN THE INTEREST OF Z.F.,
Minor Child,
C.F., Father,
Appellant,
M.I., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Colin J. Witt, District
Associate Judge.
C.F. and M.I. appeal the district court order terminating their parental
rights. AFFIRMED.
Magdalena Reese of Cooper, Goedicke, Reimer & Reese, West Des
Moines, for appellant-father.
Susan R. Stockdale, Des Moines, for appellant-mother.
Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney
General, John P. Sarcone, County Attorney, and Susan Cox, Assistant County
Attorney, for appellee.
Erin Mayfield of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor child.
Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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BOWER, J.
C.F. and M.I. appeal the district court order terminating their parental
rights. The parents claim the district court should have granted concurrent
jurisdiction so a guardianship could have been established for the child. C.F., the
father, also claims there were insufficient grounds to support termination of his
rights and statutory exceptions to termination apply. We find termination of both
parent’s rights is in the child’s best interests, we affirm.
I. Background Facts and Proceedings
C.F. and M.I. are the parents of Z.F.1 The child was removed from the
home on November 7, 2012, because authorities were unable to check on the
welfare of the child following allegations the mother, M.I., was using drugs. At
the time of removal, the father, C.F., was incarcerated. C.F. remained
incarcerated throughout this case. After a removal hearing the child was placed
with the paternal grandmother.
The child was found to be in need of assistance during a hearing on
January 8, 2013. During a permanency hearing on May 28, 2013, the court
found the child could be returned to M.I. if certain behavioral changes were
made. The State filed a petition to terminate parental rights after those changes
did not occur.
During the termination hearing, both parents asked the court to consider
allowing concurrent jurisdiction so a guardianship could be established. The goal
1
The original child in need of assistance petitions were filed alleging Z.F. and a sibling,
C.M., were in need of assistance. C.F. is not C.M.’s father, and the case involving C.M.
was closed after the child was placed with the child’s father. Only issues regarding Z.F.
are before us.
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of the concurrent jurisdiction request was to provide both parents with additional
time so they could avoid termination of their parental rights.
The juvenile court terminated the parents’ rights on December 26, 2013.
The request for concurrent jurisdiction was denied because termination provided
permanency, which was found to be in the best interests of the child. The
juvenile court also found termination and the subsequent adoption by the
paternal grandmother would provide the parents an opportunity to have a
relationship with the child should they change their longstanding behaviors.
Conversely, a guardianship would not create that kind of permanency and
protection for the child.
II. Standard of Review
Our review of termination proceedings is de novo. In re A.B., 815, N.W.2d
764, 773 (Iowa 2012). We give weight to the factual findings of the district court,
particularly on matters of credibility, but we are not bound by them. Id.
III. Discussion
Both C.F. and M.I. appeal termination of their parental rights because the
court denied their request for concurrent jurisdiction so a guardianship could be
established. Only C.F. argues there were insufficient grounds for termination and
statutory exceptions to termination apply.
A. Concurrent Jurisdiction
Iowa Code section 232.3(2) (2013) allows a district court to authorize
concurrent jurisdiction in another court regarding certain specific issues, including
whether a guardianship should be established. The decision to do so is
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discretionary and must be exercised in the best interests of the child. In re R.G.,
450 N.W.2d 823, 825 (Iowa 1990).
The record supports the juvenile court’s decision that creating a
guardianship would not be in the child’s best interests. The child is doing well in
pre-adoptive care with the paternal grandmother, and termination serves the
child’s best interests by providing for immediate permanency and the promise of
stability. Considering both parents’ ongoing problems with drug use,2 termination
establishes a wall between the child and the inconsistent attempts at parenting, a
wall that would be absent if a guardianship were established.
B. Termination Grounds and Statutory Exceptions
C.F. claims the district court erred in finding termination was proper and
statutory exceptions to termination did not apply. The State contends these
arguments were not presented to the juvenile court, which stated “[n]either parent
requested reunification or return,” and accordingly are not preserved for appeal.
Because the district court expressly considered and ruled upon termination
pursuant to section 232.116(1)(h) and the statutory exceptions to termination
under section 232.116(3), we will consider C.F.’s arguments.
Section 232.116(1)(h) allows for termination when the child is three years
of age or under, has been adjudicated in need of assistance, has been removed
from the parents for at least six 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
2
M.I. missed a number of drug screens during the pendency of this case and, during
one visit, admitted using certain illegal substances. When later questioned by a
department of human services caseworker, M.I. did not remember admitting to using the
substances and said she “must have been drunk” when she made the statement.
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parents . . . at the present time.” C.F., citing only to authority that holds
termination should be a last resort, claims there is not clear and convincing
evidence the child could not be returned to his care. We disagree. At the time of
the termination hearing, C.F. was incarcerated for a parole violation. Even if he
were available to care for the child, his stated interest in participating in
substance abuse treatment, anger management,3 and other services is entirely
speculative. His lengthy criminal history is evidence a guardianship is unlikely to
address these issues. We find clear and convincing evidence the child could not
be returned to C.F.’s care at the present time.
C.F. also argues termination should not have been granted because the
child was placed with a relative and was not in the child’s best interests because
of the closeness of the parent-child relationship. See Iowa Code
§ 232.116(3)(a), (c). Section 232.116(3)(a) provides termination need not occur
if “[a] relative has legal custody of the child”. The district court found none of
these exceptions should prohibit termination in this case. We agree. The child
is not in the custody of relatives, but instead legal custody has been transferred
to the department of human services. See In re A.M., No. 13-1336, __ N.W.2d
___, ___ (Iowa 2014). Further, placement with a relative is, as we previously
explained, insufficient to protect the child from the parents many issues. Only
termination will give the child the permanency, safety, and stability needed. We
also agree termination is in the child’s best interest despite the parent-child
3
At one point during the pendency of this case, C.F. threatened a department of human
services caseworker and threatened to take the child at gunpoint upon his release from
prison.
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relationship. Though there is evidence C.F. has maintained contact with the
child, the contact has been limited by his continued incarceration. The child is
thriving with the paternal grandparent and there is no evidence the child has the
type of close relationship with the father that would justify applying the exception
to termination.
AFFIRMED.
In the Interest of Z.F., Minor Child, C.F., Father, M.I., Mother
Combined Opinion