Opinion
No. 1-495 / 00-1912
Filed August 15, 2001
Appeal from the Iowa District Court for Lucas County, Jerrold W. Jordan, Juvenile Court Judge.
Father appeals the juvenile court's termination of his parental rights. AFFIRMED.
Roberta A. Chambers, Corydon, for appellant.
Thomas J. Miller, Attorney General, Charles K. Phillips, Assistant Attorney General, and Paul Goldsmith, Assistant County Attorney, for appellee-State.
Sherman W. Phipps of Phipps Greenwood, L.L.C., Lamoni, for mother.
Monty W. Franklin of Franklin Law Office, Humeston, for minor child.
Considered by Streit, P.J., and Mahan and Zimmer, JJ.
A father appeals the termination of his parental rights to his minor son. He claims: (1) the juvenile court failed to follow Iowa law; (2) the State did not engage in reasonable efforts to reunite him with his child; and (3) the State did not present sufficient evidence to warrant termination of his parental rights. We affirm.
DeAngelo and Kelly are the parents of Dondre, born in April 1997. In December 1998 Dondre was visiting DeAngelo at his home. DeAngelo was living with his paramour, DeAnn, and their three children in a rural area. A sheriff found the four children without adult supervision in a home heated only by a wood-burning stove. The sheriff prevented one of the children from putting lighter fluid in the stove. The children were removed from the home and placed in foster care. The Iowa Department of Human Services (DHS) issued a founded report of denial of critical care. Dondre was adjudicated to be a child in need of assistance pursuant to Iowa Code section 232.2(6)(b).
There were five previous founded reports against either DeAngelo or DeAnn concerning their three children.
A psychological evaluation revealed DeAngelo had a personality disorder, with symptoms of anti-social, dependent, paranoid, and histrionic themes. He has borderline intellectual functioning. DeAngelo told the psychologist that if Dondre was not placed back into his care he did not want to be involved in the child's life at all in the future.
DeAngelo was arrested in February 1999 for forgery. He received a suspended sentence in April 1999 and was placed on probation. After his release from jail he began supervised visitation with Dondre. In July 1999 DeAngelo and DeAnn moved to a new apartment, and visits were moved to this location. He relied on DeAnn to assist in Dondre's care. He was not aware of age-appropriate activities for Dondre. DeAngelo obtained employment. He completed a batterer's education program. DeAngelo received parenting skill development sessions.
At a meeting with social workers in November 1999, the social workers felt DeAngelo displayed intimidating behaviors towards them. Later that same month, DeAngelo was in a car accident and Kelly's sister, who was in the car, was injured. DeAngelo did not have a valid driver's license at the time. He gave police officers a false name at the accident scene. Later, on the advice of his attorney, he reported his deception to officers. He was arrested and was required to pay a fine. During this same time, DeAngelo and Kelly resumed a relationship, although DeAngelo continued to live with DeAnn. Kelly lived with DeAngelo and DeAnn for a few months.
Dondre has some medical concerns, including allergies, asthma, and ear infections. He has a fragile immune system and is frequently susceptible to severe illnesses. In addition, Dondre is developmentally delayed, especially in the area of speech. He requires close supervision, and will need special classes and training for his disability. Dondre attends a playgroup and speech therapy. He needs a caretaker who is committed to caring for his special needs.
On July 19, 2000, the State filed a petition to terminate the parental rights of DeAngelo and Kelly to Dondre. A permanency hearing was held on June 26, 2000, and an order was filed on August 4, 2000, which determined Dondre should remain in foster care. The three older children of DeAngelo and DeAnn were returned to their care.
The termination hearing was held in October 2000. Kelly did not resist termination of her rights. The juvenile court terminated DeAngelo's parental rights to Dondre under sections 232.116(1)(c), (g), and (h). The court found:
As shown by the record a significant number of services have been offered to this family including DeAngelo. Although his attitude recently has been cooperative, in the beginning his cooperation was absent and his "in your face" attitude prevented these offered services from having any effect on him. He failed to recognize and to same extent may continue to fail to recognize the fragile condition of Dondre. . . . His absence from this child's life in total also indicates that he has no real interest in maintaining a parental obligation to this child.
DeAngelo appeals.
I. Scope of Review
The scope of review in termination cases is de novo. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997). The grounds for termination must be proven by clear and convincing evidence. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999). Our primary concern is the best interests of the child. In re T.B., 604 N.W.2d 660, 662 (Iowa 2000).
II. Permanency Hearing
DeAngelo contends the State did not follow Iowa Code section 232.104(2)(c), because the petition to terminate parental rights was filed (June 19, 2000), before the permanency hearing was held (June 26, 2000). This section provides:
2. After a permanency hearing the court shall do one of the following:
c. Direct the county attorney or the attorney for the child to institute proceedings to terminate the parent-child relationship.
Iowa Code § 232.104(2)(c).
We first question whether this issue was preserved for our review. DeAngelo did not raise this issue at the termination hearing. An issue not presented in the juvenile court may not be raised for the first time on appeal, even an issue of constitutional dimensions. In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App. 1994).
Even if this issue had been preserved, we find section 232.111, concerning a petition for termination of parental rights, does not place any time frame on when a petition may be filed. In addition, section 232.104(2) gives the court several options after a permanency hearing, including ordering a termination petition, but does not require a permanency hearing before a termination petition may be filed. See In re R.C., 523 N.W.2d 757, 760 (Iowa Ct. App. 1994) (termination petition should be filed when it is in child's best interest to do so).
III. Reasonable Efforts
DeAngelo asserts the State did not engage in reasonable efforts to reunite him with Dondre. He claims he should have been given extended visitation in order to show he had the capability to care for his son.
Reasonable services must be provided to attempt to reunite a family before the State can terminate parental rights. In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct.App. 1994). Generally, DHS must make reasonable efforts to provide services to eliminate the need for removal. In re T.C., 522 N.W.2d 106, 108 (Iowa Ct.App. 1994). The reasonable efforts concept would broadly include a visitation arrangement designed to facilitate reunification while protecting the children from the harm responsible for the removal. In re M.B., 553 N.W.2d 343, 345 (Iowa Ct.App. 1996). The nature and extent of visitation is controlled by the best interests of the child. Id.
DeAngelo received four hours of supervised visitation with Dondre each week. We determine further visitation would not have been helpful to either DeAngelo or Dondre. DeAngelo and DeAnn did have an unsupervised visit with all the children in February 2000, but concerns arose that DeAngelo and DeAnn were not empathetic to the children. Furthermore, they allowed Kelly to participate in the visit. Visits were then changed back to supervised. Based on this incident, DHS acted reasonably in not providing DeAngelo with extended visitation.
IV. Sufficiency of the Evidence
DeAngelo contends the State did not present sufficient evidence to warrant termination of his parental rights. He states he would work with social workers to improve Dondre's developmental delays. He also states he is able to treat Dondre's asthma. He points out his other children were returned to the home.
A court must reasonably limit the time for parents to be in a position to assume care of their children because patience with parents can soon translate into intolerable hardship for the children. In re A.Y.H., 508 N.W.2d 92, 96 (Iowa Ct.App. 1996). The crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems. In re D.A., 506 N.W.2d 478, 479 (Iowa Ct.App. 1993). At some point, the rights and needs of the child rise above the rights and needs of the parents. J.L.W., 570 N.W.2d at 781.
Despite the fact this case has been ongoing since December 1998, DeAngelo has not put himself in a position where he could adequately meet Dondre's needs. Dondre had significant medical problems; he needs asthma treatments about four times each day and has recurrent ear infections. Dondre is also developmentally delayed and will need continual assistance to help him reach his full potential. DeAngelo does not understand the extent of Dondre's problems. Although DeAngelo is able to contribute to the care of his other children, who do not have any special needs, his parental rights to Dondre were properly terminated.
We affirm the decision of the juvenile court.
AFFIRMED.