                     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.
