Opinion
No. 2-1016 / 02-1748.
Filed December 30, 2002.
Appeal from the Iowa District Court for Hamilton County, JAMES A. McGLYNN, Associate Juvenile Judge.
A father appeals the order terminating his parental rights to his daughter. AFFIRMED.
Jane Wright, Webster City, for appellant-father.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, and Patrick Chambers, Assistant County Attorney, for appellee-State.
Douglas Cook, Jewell, guardian ad litem for minor child.
Considered by VOGEL, P.J., and ZIMMER and HECHT, JJ.
Jerimeh K. and Rebecca R. are the biological parents of M.K., born February 12, 1998. M.K. was adjudicated a child in need of assistance (CINA) on March 11, 1999, pursuant to Iowa Code sections 232.2(6)(b), 232.2(6)(c)(2), and 232.2(6)(n) (1999). The court continued custody with Rebecca after adjudication.
On January 11, 2001, the Department of Human Services (Department) requested and obtained an emergency ex parte removal order from the district court. The Department sought to remove M.K. because Rebecca had been charged with domestic assault, a warrant had been issued for her arrest, she was not cooperating with services, and her whereabouts were unknown.
After the removal order was entered, the Department learned that Rebecca was receiving inpatient substance abuse treatment and that M.K. was with her at the treatment facility. The Department concluded that Rebecca's circumstances were appropriate and did not execute the removal order. The Department did not report the mother's circumstances to the court and made no request to have the removal order rescinded.
Later on, the mother left the substance abuse treatment facility with M.K. before completing treatment. Her whereabouts were unknown for several months. In June 2001 the Department learned that Rebecca left M.K. with the child's paternal grandmother. The Department removed M.K. from her paternal grandmother's home on June 12, 2001, by using the ex parte removal order entered by the court five months earlier. The child has remained in foster care since that time.
The State filed its petition to terminate parental rights on March 7, 2002, and subsequently amended it on March 22, 2002. The district court heard the matter on September 6, 2002, and terminated the parental rights of Jerimeh and Rebecca on October 7, 2002. The court terminated Jerimeh's parental rights pursuant to section 232.116(1)(d) (Supp. 2001). Jerimeh appeals from this order.
Formerly, Iowa Code section 232.116(1)(c) (1999).
We review termination proceedings de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
Jerimeh contends the ex parte order used to remove M.K. from her paternal grandmother's home was invalid. The juvenile court expressed its strong disapproval of the manner in which the Department used the removal order issued in January of 2001. So do we. It was inappropriate for the Department to hold on to the order it did not use because of a change in the mother's circumstances and then use it in June. However, Jerimeh did not make a timely objection to the removal of his daughter from his mother's care. He raised his objection to the use of the removal order at the termination hearing, nearly fifteen months after the removal. We conclude that Jerimeh waived any objection to the manner in which the removal order was used. In Interest of L.P., 370 N.W.2d 839, 841 (Iowa Ct.App. 1985) (holding a faulty transfer order does not justify reversing the termination and harming the children by allowing their futures to remain unsettled for another year or longer).
In order to terminate a parent's rights under 232.116(1)(d) the State was required to prove by clear and convincing evidence (1) the child has been adjudicated CINA after finding the child to have been physically or sexually abused or neglected; and (2) the parents were offered or received services to correct the circumstances, which led to the adjudication, and the circumstances continue to exist. Jerimeh does not contest the first element. Rather, he contends the State failed to offer him services to correct the problems leading to the March 1999 CINA adjudication.
Jerimeh has never been M.K.'s custodial parent. The record reveals he did not request services after the CINA petition was filed. At one point, he sabotaged the Department's efforts in this case by helping to hide M.K. For much of the time this matter was pending, Jerimeh was absent from Iowa or his whereabouts were unknown. At the time the termination hearing was held, he had just gotten out of jail. Jerimeh has no driver's license and would have to live with his mother if he got custody of his daughter. Jerimeh is twenty-seven years old and can't take care of himself. The record reveals little evidence that he would be able to successfully care for his child. We concur with the district court's reasoning and conclude termination was proper under section 232.116(1)(d). A parent cannot stand by idly and wait until the eleventh hour to express an interest in his child.
We find no merit in the issues Jerimeh raises on appeal. Clear and convincing evidence supports termination of Jerimeh's parental rights. We agree with the trial court's finding that termination is in M.K.'s best interests.