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In re K.C.B.

Court of Appeal of Iowa

June 26, 2013

IN THE INTEREST OF K.C.B. Jr., Minor Child, K.B., Father, Appellant, N.B., Mother, Appellant.

Appeal from the Iowa District Court for Washington County, Crystal Cronk, District Associate Judge.

A father and mother appeal separately from the order terminating their parental rights.

Katie Mitchell of Tindal Law Office, P.L.C., Washington, for appellant father.

Jeffrey Powell, Washington, for appellant mother.

Thomas J. Miller, Attorney General, Janet Hoffman, Assistant Attorney General, Larry J. Brock, County Attorney, and Patrick J. McAvan, Special County Attorney, for appellee State.

Katherine E. M. Lujan of Lloyd, McConnell, Davis & Lujan, L.L.P., Washington, for minor child.

Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.

EISENHAUER, C.J.

A father[1] and mother appeal separately from the order terminating their parental rights. Both parents contend the court erred in denying the application to have the child placed with an adult half-sister and termination is not in the best interests of the child. The mother also contends the State did not make reasonable efforts to place the child with a sibling as required by Iowa Code section 232.108 (2011). The father also contends denying the request to have the child placed with the half-sister prevented the court from finding an exception to termination under section 232.116(3)(a).

The child was born in January 2012 and removed from the parents' care in March following their arrests on federal drug charges. Throughout these proceedings, the parents have been in jail awaiting trial. After a brief, voluntary placement with a maternal aunt, the child was placed with the paternal grandmother. After a few days, the child was removed from the grandmother's care pending a home study and placed in foster care. When the home study of the grandmother raised concerns, the child's placement in foster care was confirmed in the dispositional order as being the least restrictive placement appropriate in the circumstances. In the summer of 2012 the father's adult daughter moved to Iowa with her two young children and fiancé. After she completed a home study and was approved as a possible placement option, the father filed a motion for change of placement, seeking to have the child placed with the half-sister. Following a hearing, the court denied the motion. The father filed a motion to enlarge, requesting the half-sister have at least forty hours of visitation weekly or be considered as a caregiver in the event the foster mother needed respite care. The court ordered the half-sister be permitted to provide respite care and further ordered visitation with the child as arranged by the department of human services.

The State petitioned to terminate the parental rights of both parents in January 2013. Following a contested hearing in March, at which the father again requested the child be placed with the half-sister, the court denied the father's request and terminated both the mother's and father's parental rights under Iowa Code section 232.116(1)(h). Both parents appealed.

We review terminations de novo. In re H.S., 805 N.W.2d 737, 745 (Iowa 2011). We examine both the facts and law and adjudicate anew those issues properly preserved and presented. In re L.G., 532 N.W.2d 478, 480-81 (Iowa Ct. App. 1995). We accord considerable weight to the findings of the juvenile court, especially concerning the credibility of witnesses, but are not bound by them. Id. at 481.

On appeal, neither parent challenges the statutory ground for termination. At the time of the termination, both parents were in jail awaiting trial on serious drug charges. They were not available to parent the child. Clear and convincing evidence supports termination of their parental rights under section 232.116(1)(h).

Both parents argue termination was not in the best interests of the child, asserting they have only been charged with, not convicted of a crime. The mother argues the child would not be harmed if the court were to give her additional time to obtain her release from jail and establish herself as an appropriate parent. The father acknowledges permanency should be fixed as soon as possible, but argues ...


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