No. 5-373 / 05-0181Court of Appeals of Iowa.
Filed May 11, 2005
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
A father appeals the termination of his parental rights to his child. AFFIRMED.
Amanda Demichelis of the Bull Law Office, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Jon Anderson, Assistant County Attorney, for appellee-State.
J. Karnale Manuel and Jill McClain of the Drake Legal Clinic, Des Moines, guardians ad litem for minor child.
Considered by Mahan, P.J., and Zimmer and Miller, JJ.
ZIMMER, J.
Aaron M. appeals from a juvenile court order that terminated his parental rights to his daughter. We affirm the juvenile court’s decision.
I. Background Facts and Proceedings
Aaron M. and Kristina B. are the parents of T.M., born March 9, 2001.[1] On May 31, 2003, T.M. was removed from her mother’s home after her mother suffered a drug relapse and was incarcerated for violating her federal probation. The juvenile court placed T.M. with her aunt, H.A., subject to the supervision of the Department of Human Services (DHS).[2] T.M. had not been in her father’s custody before she was removed from her mother’s home.
On November 4, 2003, T.M. was adjudicated as a child in need of assistance (CINA). As part of the CINA adjudication, Aaron was offered supervised visitation in the discretion of DHS conditioned upon his compliance with drug testing. Aaron did not submit to testing and no visitation took place.
On December 17, 2003, the court entered a dispositional order in the CINA proceedings. Aaron showed some interest in receiving services at the disposition hearing, but did not take advantage of any services. Aaron was incarcerated in February of 2004 as the result of a conviction for possession of a controlled substance, third offense. He was committed to the Iowa State Penitentiary and remained there until September of 2004.
On September 13, 2004, the State filed a petition to terminate Aaron’s parental rights pursuant to Iowa Code sections 232.116(1)(e) (2003) (child CINA, child removed for six months, parent has not maintained significant contact with child) and (h) (child is three or younger, child CINA, removed from home for six of last twelve months, and child cannot be returned home).
Following a contested hearing, the juvenile court terminated Aaron’s parental rights on January 19, 2005, pursuant to sections 232.116(1)(e) and (h). Aaron has appealed.
II. Scope and Standards of Review
We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). Although we are not bound by them, we give weight to the trial court’s fact-findings, especially when considering witness credibility. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. Our primary concern is the best interests of the child. C.B., 611 N.W.2d at 492; In re T.B., 604 N.W.2d 660, 661 (Iowa 2001). When the court terminates parental rights on more than one statutory ground, we will affirm if at least one ground has been proved by clear and convincing evidence. In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct.App. 1995).
III. Discussion
We conclude clear and convincing evidence supports the juvenile court’s decision to terminate Aaron’s parental rights pursuant to Iowa Code section 232.116(1)(h). Aaron does not dispute the age, adjudication, and time removal elements of this section; however, he asserts the State failed to show that T.M. could not be returned to his care at the time the termination hearing was held without suffering further adjudicatory harm. Upon our de novo review of the record, we disagree.
Aaron has a lengthy criminal record for drug related offenses.[3] He has been incarcerated on at least three occasions, most recently from February 2004 until September 2004. The record reveals that Aaron failed to take advantage of services prior to his incarceration. The juvenile court made the following observations concerning Aaron in its termination order:
The Department of Human Services has offered Aaron the following services: relative placement, supervised visitation, and drug screens. Aaron’s response to these services has been insufficient to return custody of the child to him. He has only recently exhibited any motivation to begin the efforts to avoid termination. He had absolutely no contact with Tatyana for over a year, the first six months of which was prior to his incarceration during which he refused to cooperate with DHS. His involvement with aftercare is best described as nominal, in that he readily admits he receives no benefit from NA meetings. While his more recent drug tests have all been negative, he has had six unexcused absences since commencing testing in September of 2004 (the most recent unexcused being on December 13, 2004). It is unclear at best whether his present period of sobriety represents his earnest desire to abandon his prior lifestyle or merely to present a favorable impression of himself for these proceedings.
When the termination hearing was held, Aaron was living with his parents. He was employed but had no driver’s license. We conclude the juvenile court correctly found that T.M. could not be returned to her father’s care at the time the termination hearing was held. Because we have found the State met its burden under section 232.116(1)(h), we need not address the other ground relied on for termination of Aaron’s parental rights.
Aaron also contends termination of his parental rights was unnecessary because of T.M.’s placement with a relative. Iowa Code § 232.116(3)(a). He also suggests that termination is not in the best interests of T.M. because of his close bond with his daughter. Iowa Code § 232.116(3)(c). We find no indication in the record that Aaron raised any of the exceptions provided for in Iowa Code section 232.116(3) at trial. The juvenile court’s termination order does not address these issues and Aaron did not file a motion pursuant to Iowa Rule of Civil Procedure 1.904(2) seeking enlargement of the court’s termination order. The father waived his argument relating to the exceptions by failing to file such a motion. In re A.H.M., 516 N.W.2d 867, 872 (Iowa 1994). Even if error was preserved, we agree with the juvenile court that termination of Aaron’s parental rights is in T.M.’s best interests. Children should not be forced to endlessly await the maturity of a natural parent. C.B., 611 N.W.2d at 494. At some point the rights and needs of the child must rise above the rights and needs of the parent. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997).
Aaron also appears to argue that the juvenile court erred because it terminated his parental rights solely because of his daughter’s bond with her paternal aunt. We do not believe the record on appeal supports this argument. In its termination order, the juvenile court correctly found that T.M. had prospered in the care of the paternal aunt.[4] The court also discussed the father’s deficiencies at some length. The record simply does not support the conclusion that the court elevated the child’s bond with her foster parent to the sole determinative factor in its decision to terminate Aaron’s parental rights.
We affirm the juvenile court’s decision terminating Aaron’s parental rights to T.M.
AFFIRMED.