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In the Interest of K.N.

January 9, 2013


Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge.

The opinion of the court was delivered by: Tabor, J.

A mother and father appeal an order terminating parental rights to their son. AFFIRMED ON BOTH APPEALS.

Considered by Potterfield, P.J., and Danilson and Tabor, JJ.

Hasan and Kendra challenge a juvenile court order terminating parental rights to their one-year-old son, K.N. The child has never lived with either parent due to their incarcerations and his special needs. The child instead lived with his paternal uncle, until discord between Hasan and his brother prompted the DHS to transfer K.N. to a foster home. Hasan and Kendra contend the juvenile court erred in finding grounds to terminate parental rights. They also assert it would be in K.N.'s best interest to live with Hasan's sister and preserve the parental bonds.

After reviewing the record de novo, we affirm the termination order. The State met its burden of proof to terminate parental rights under Iowa Code section 232.116(1)(h) (2011). At the time of the termination hearing, K.N. could not be placed in the care of either parent because of their criminal involvement and substance abuse problems. We also find K.N.'s best interests would be served by terminating parental rights and freeing him for possible adoption by his foster family, who has attended to his special needs for the past year. While his paternal aunt appears to be a worthy care giver, she has had limited exposure to K.N. and could be subject to negative pressure from Hasan.

I. Background Facts and Proceedings

Kendra gave birth prematurely to her son K.N. in March 2011. She was married to, but separated from Anthony, K.N.'s legal father. In May 2011, paternity testing confirmed Kendra's paramour, Hasan, is K.N.'s biological father.

Both biological parents have a history of domestic abuse, chemical dependence, and criminality relevant to this appeal. Hasan served a prison sentence in Georgia for cocaine possession before moving to Iowa. Police charged Kendra with assaulting Hasan on several occasions while she was pregnant with K.N. She also admitted using drugs and consuming alcohol during her pregnancy. Kendra's substance abuse had an impact on her newborn. Three days after his premature birth, K.N. tested positive for THC.*fn1 About a month after giving birth to K.N., Kendra again assaulted Hasan, this time while Hasan's eleven-year-old daughter was in the house.*fn2 Kendra was arrested and charged with domestic assault causing injury*fn3 and remained in jail when K.N. was discharged from the hospital on May 20, 2011.*fn4

The juvenile court approved a request from the Department of Human Services (DHS) to place K.N. in the care of his paternal uncle. Following his placement with his paternal uncle, K.N. continued to suffer respiratory issues and faced repeated hospitalizations. To help him breathe, K.N. had a tracheostomy tube, which required frequent cleaning and replacement.

The State filed a petition alleging K.N. to be a child in need of assistance (CINA). The court adjudicated K.N. as a CINA on June 21, 2011. Within one week of K.N.'s CINA adjudication, Hasan was arrested for possession of marijuana. In a subsequent disposition hearing confirming K.N.'s status as a CINA, the juvenile court set out steps for the parents to take before K.N. could be returned to their care.*fn5

Hasan was arrested again in August 2011 for possession of marijuana with the intent to deliver and possession of crack cocaine with the intent to deliver. He remained in jail through October 2011.

On August 9, 2011 Kendra was transferred from jail to the House of Mercy. One night, after telling staff she was leaving to visit her son, Kendra instead visited Hasan. When she returned, staff found her passed out in her own vomit with a blood alcohol concentration (BAC) of .250. She required hospitalization. She claimed to have had a bad reaction to drinking a single beer. The House of Mercy discharged her from the program for using alcohol and being dishonest. On November 22, she returned to jail. That same month, Hasan was arrested for public intoxication.

Following a December 20, 2011 review hearing, the juvenile court confirmed K.N. to be a CINA. The DHS sought modification of K.N.'s placement because of growing animosity between Hasan and his brother who had been caring for K.N. The ...

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