Opinion
No. 5-343 / 05-0209
Filed April 28, 2005
Appeal from the Iowa District Court for Washington County, Lucy J. Gamon, District Associate Judge.
D.H. appeals from the termination of his parental rights. AFFIRMED.
D. Bradley Kiesey, Washington, for appellant father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Barbara Edmondson, County Attorney, for appellee-State.
Janice Becker, Coralville, for mother.
Leslie Lamping of Day, Meeker, Lamping Schlegel, Washington, guardian ad litem for minor children.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
I. Background Facts Proceedings
Donald and Leann are the parents of Jolee, born in August 2000, and Olin, born in October 2001. In September 2003 the juvenile court entered an order prohibiting Donald from having contact with Leann or the children because he threatened to harm them.
The children were adjudicated children in need of assistance (CINA) under Iowa Code section 232.2(6)(c)(2) (2003) (child is likely to suffer harm due to parent's failure to supervise). The children were removed from Leann's care in November 2003, and placed with a maternal aunt. The resulting dispositional order entered on April 8, 2004, required Donald to undergo substance abuse and psychological evaluations and follow all recommendations made by his evaluators.
Due to problems in serving Donald, two separate adjudicatory orders were entered. The order regarding Leann was entered in October 2003, while the order regarding Donald was entered in January 2004.
Donald was subsequently diagnosed with a depressive disorder. Although Donald obtained the required substance abuse evaluation, he failed to follow the evaluator's recommendation for intensive outpatient treatment. Donald also failed to maintain a stable residence or employment and did not fully participate in court-ordered family services.
In April 2004 the juvenile court modified its September 2003 no-contact order by permitting Donald to correspond with his children. He was also permitted to have supervised telephone contact. The record indicates Donald made two telephone calls to the children, one in April and one in June. The telephone visitation ended when Donald became angry at the foster parents for supervising his telephone conversations with the children. The record also indicates that Donald did not correspond with his children and had no contact with his service providers from June through August 2004.
In August 2004 the State filed a petition to terminate Donald's and Leann's parental rights. At the November 15, 2004, termination hearing Donald testified he was "to the point of popping," and that if the children were not returned to his care he was "probably going to commit that major crime. . . ." Donald's attorney moved for a continuance of the termination hearing, during which Donald was hospitalized for mental health treatment. While there, he told physicians "if they terminate my rights, I will terminate them." After his discharge in December 2004 Donald requested the court grant him supervised visitation with his children. The juvenile court did not address Donald's request prior to entry of the court's order terminating parental rights.
On January 26, 2005, the juvenile court terminated Donald's parental rights pursuant to sections 232.116(1)(b) (2005) (abandonment), (e) (parent has not maintained significant and meaningful contact with the child), (h) (child is three or younger, CINA, removed for at least six months, and cannot be returned home) (Olin), and (l) (parent has substance abuse problem, child cannot be returned within a reasonable time). Leann's parental rights were also terminated. The court concluded termination was in the children's best interests. Donald appeals, but Leann does not.
II. Standard of Review
The scope of review in termination cases is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000). Our primary concern is the best interests of the child. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997).
III. Reasonable Efforts
Donald contends the juvenile court unduly restricted his access to the children by permitting only telephone contact, and by not granting his request for supervised visitation. We determine this issue has not been preserved for our review. The district court never ruled on Donald's request for additional visitation. When a court fails to address an issue properly presented, a party must preserve error by filing a post-trial motion. In re N.W.E., 564 N.W.2d 451, 455 (Iowa Ct.App. 1997). No post-trial motion was filed in this case to preserve the issue for our review. Furthermore, we note that Donald did not request visitation until after the termination hearing had already commenced. See In re M.B., 595 N.W.2d 815, 818 (Iowa Ct.App. 1999) (noting it is too late to challenge services at the termination hearing).
IV. Sufficiency of the Evidence
Donald claims there is insufficient evidence supporting the juvenile court's decision to terminate his parental rights. We disagree.
As noted earlier, Donald's parental rights were terminated on several grounds, including Iowa Code section 232.116(1)(e). That section provides:
The court finds that all of the following have occurred:
(1) The child has been adjudicated a child in need of assistance pursuant to section 232.96.
(2) The child has been removed from the physical custody of the child's parents for a period of at least six consecutive months.
(3) There is clear and convincing evidence that the parents have not maintained significant and meaningful contact with the child during the previous six consecutive months and have made no reasonable efforts to resume care of the child despite being given the opportunity to do so. For the purposes of this subparagraph, " significant and meaningful contact" includes but is not limited to the affirmative assumption by the parents of the duties encompassed by the role of being a parent. This affirmative duty, in addition to financial obligations, requires continued interest in the child, a genuine effort to complete the responsibilities prescribed in the case permanency plan, a genuine effort to maintain communication with the child, and requires that the parents establish and maintain a place of importance in the child's life.
There is no dispute concerning the children's adjudication or removal for the requisite period of time. We, based on our de novo review, also find that Donald's earlier mentioned failures to avail himself of treatment and visitation opportunities are sufficient to meet the State's burden under subsection 3. It is sufficient to note that Donald's failures fall far short of the statute's express definition of significant and meaningful contact. Contrary to Donald's claim, the record does not indicate his failures were attributable to the Department, the foster parents, or the court's unwillingness to provide him with reunification opportunities. Because the State has met its burden of proof on this ground for termination, we affirm.
We need not consider Donald's claims concerning other grounds for terminating his parental rights because we have found the State has met its burden under section 232.116(1)(e). See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999).
V. Best Interests
Donald asserts the juvenile court improperly found that he was a significant risk or imminent danger to the children. We do not believe the court made such findings, although the court did note Donald's threats during the court hearings. In any event, in our de novo review, we find termination of Donald's parental rights is in the best interests of the children. Donald has problems tending to his own physical, mental, and emotional needs, and is unable to meet the needs of the children.
We affirm the decision of the juvenile court.